Nashville, Tennessee (AP) – Judges at the Tennessee Supreme Court on Wednesday asked numerous questions from a company challenging lawsuits alleging that its workers fell ill or died after clearing the country’s worst coal ash spill more than a decade ago.
Oral arguments focused on Jacobs Engineering’s assertion that workers ’demands should fall under Tennessee law, which limits legal issues related to exposure to silica, a component of coal ash. Workers involved in the 2008 spill response at a mining plant in Kingston, Tennessee, and members of their families watched the trial closely, many wearing “Remember Kingston” pins.
Mark Sylvie, a lawyer for workers and families, said there would be “virtually no kind of claims that would not fall under the Silicon Claims Priorities Act” in Jacobs ’explanation.
Examples, he said, are when a bag of concrete containing silica falls on someone’s head as they walk across a construction site; if someone is killed with a brick containing silica and the family wants to sue for unlawful death; or if there has been a product liability issue with irritation from baby diapers that may contain silica.
Judge Kirby Holly said the court should consider how the interpretation would be applied otherwise, noting that breakfast cereals and the painkiller Motrin contain silica.
“If I had eaten porridge for breakfast and I claim it had broken glass, by your definition, I think I would have been completely excluded from the immediate injuries that took place,” Kirby said.
Dwight Tarwater, a lawyer representing Jacobs, said the law has a “very broad definition” of what it will cover, and which includes alleged illnesses suffered by workers as a result of exposure to coal ash.
“Words say what they say, they mean what they say,” he said. He said that if opposition lawyers have questions about the scope of the law, they should discuss them with state lawmakers. He also noted that coal ash has a high concentration of silica.
Does this apply to the “brick” situation? Probably not, just in terms of common sense, “Tarvatero said.” But words say yes. Words say it should be interpreted broadly. Words say it applies to any contact with, any inhalation. “
Workers’ lawyers argue that the Silicon Act was never intended for such cases. The law specifically applies to silica, which is only one component of coal ash. Components that they believe have injured workers include arsenic, lead, cadmium, mercury and radium, but not silica. The law also refers to claims for very specific injuries – silicosis and pulmonary fibrosis – which are not considered in this case.
The law requires anyone claiming a claim for exposure to silica or mixed dust to provide a physician’s conclusion that exposure is a “significant factor” that contributes to the patient’s illness. For plaintiffs who file unlawful death claims on behalf of a loved one, they must also indicate that the employee has been exposed to dust for at least five years. Workers with lung cancer are also subject to the five-year provision and must additionally indicate that their cancer was diagnosed at least 10 years after the first contact with dust.
In court documents, Jacobs said the vast majority of the plaintiffs either did not file a doctor’s report, filed inadequate reports, or did not comply with time limits. For example, one worker died of lung cancer in 2015, less than seven years after the spill, so the worker’s family should not be allowed to sue, according to Jacobs.
Workers ’lawyers also argue that filing this challenge is too late. The case has already passed the first part of a two-part federal trial in 2018, when a jury in Knoxville, Tennessee, found that Jacobs had violated his duty to care for workers. The jury said Jacobs’ actions could make workers sick. Whether or not these actions made them ill and thus made the victims entitled to monetary compensation was left for the next trial or trial.
Mediation appointed by the judge was unsuccessful, but a new trial date has not been set as Jacobs continues to hear litigation. The company has twice appealed to the U.S. District 6th District Court of Appeals to recognize that it is insured against litigation because it acted on behalf of the Federal Agency for Tennessee Valley Administration. The court ruled against Jacobs both times, most recently last month.
The Tennessee Supreme Court got involved because a federal judge asked him to interpret state law.
Jacobs’ attorneys said the company did its best to manage the cleanup in a way that regulators said was safe. It has not been proven that Jacobs – or even coal ash – is to blame for any diseases, and the Environmental Protection Agency classifies coal ash as dangerous.
On Wednesday, Sylvie mentioned Jean Nance, who worked in the office from 2009 to 2013 on a cleanup, but eventually died of an aggressive form of leukemia in 2015. Sylvie said Nance’s lawsuit would be dismissed according to the company’s legal interpretation.
Brother Nance, Mike Dunn, and other family members wore large hairpins with a photo of her face as they watched. Afterwards they cautiously hoped.
“I just hope something can be resolved,” Dan said. “Jean, she knew she wouldn’t have time. But she was interested in other workers. “