Coal Ash Workers Case Heard in Tennessee Supreme Court

NASHVILLE, TN — Tennessee Supreme Court justices asked numerous questions Wednesday of a company that is fighting lawsuits alleging its employees fell ill or died after cleaning up the nation’s worst coal ash spill, which occurred there over ten years ago.

The oral arguments centered on Jacobs Engineering’s assertion that workers’ claims should fall under a Tennessee law that limits legal challenges involving exposure to silica, a component of coal ash. Workers who helped clean up the 2008 spill at the Tennessee Valley Authority’s Kingston Fossil Plant and their family members watched intently in court, many wearing “Remember Kingston” pins.

Mark Silvey, a workers’ and families’ attorney, said there would be “virtually no type of claim that would not be covered by the Tennessee Silica Claims Priorities Act” under Jacobs’ interpretation.

Some examples, he said, are if a bag of concrete containing silica falls on someone’s head as they walk through a construction zone; if someone is killed with a brick containing silica and the family wants to sue for wrongful death; or if there was a product liability issue with irritation from children’s diapers, which may contain silica.

Judge Kirby Holly said the court must consider how the interpretation would otherwise apply, further noting that breakfast cereals and the painkiller Motrin contain silica.

“If I ate breakfast cereal and claimed it had ground glass, by your definition, I think I would be completely excluded from the immediate injuries that took place,” Kirby said.

Dwight Tarwater, a lawyer representing Jacobs, said the law has a “spectacularly broad definition” of what it would cover, which includes alleged illnesses workers have suffered as a result of their exposure to coal ash.

“Words say what they say, they mean what they say,” he said. He said if opposition lawyers have questions about the scope of the law, they should discuss them with state lawmakers. silica concentration.

“Would that apply to a ‘brick’ situation? Probably not, just from a common sense standpoint,” Tarwater said. “But the words say it would. The words say it should be interpreted broadly. The words say it applies to any contact with, any inhalation of.”

Lawyers for the worker argue that the silica law was never meant to apply to cases like theirs. The law specifically refers to silica, which is only a component of coal ash. Compounds they say caused the worker injuries 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 at issue in this case.

The law requires anyone pursuing a claim for exposure to silica or a dust mixture to file a medical report concluding that the exposure is a “substantial contributing factor” to the patient’s illness. For plaintiffs filing wrongful death claims on behalf of a loved one, they must also show that the worker was exposed to dust for at least five years. Workers with lung cancer are also subject to the five-year provision and must additionally prove that their cancer was diagnosed at least 10 years after their first exposure to the dust.

In court filings, Jacobs said the vast majority of plaintiffs failed to file doctor’s reports, filed inadequate reports, or failed to meet deadlines. For example, a 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.

The workers’ lawyers also argued that it was too late to bring this challenge. The case already went through the first part of a two-part federal trial in 2018, when a jury in Knoxville, Tennessee, found Jacobs breached his duty of care to workers. Jurors said Jacobs’ actions were capable of making the workers sick. Whether these actions actually made them sick, and thus made the victims eligible for damages, has been left to one or more later trials.

Judge-ordered mediation failed, but a new trial date has not been set as Jacobs continues to pursue legal challenges. On two occasions, the company asked the 6th US Circuit Court of Appeals to declare itself immune from prosecution because it was acting on behalf of the Tennessee Valley Authority, a federal agency. The court has ruled against Jacobs both times, most recently last month.

The Tennessee Supreme Court got involved because the federal judge asked it to interpret state law.

Jacobs’ attorneys said the company did its best to handle the cleanup in a way regulators deemed safe. Jacobs—or even coal ash—has not been proven to cause any disease, and the Environmental Protection Agency classifies coal ash as non-hazardous.

On Wednesday, Silvey mentioned Jean Nance, who worked in the office from 2009 to 2013 on cleaning work, but eventually died of an aggressive form of leukemia in 2015. Silvey said Nance’s application would be denied under the legal interpretation of the company.

Nance’s brother, Mike Dunn, and other family members wore large pins displaying a picture of his face as they watched. Second, they were cautiously optimistic.

“I just hope something can be resolved,” Dunn said. “Jean, she knew she wouldn’t make it. But she was interested in the other workers.

About Jessica J. Bass

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