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    How tossing a brick at someone plays into the Kingston coal ash lawsuit


    June 3, 2022 - Anila Yoganathan

     

      If I hit you with a brick, does Tennessee's silica law protect me from being sued?

      That fantastical scenario gets to the heart of how broadly the legal system should interpret the law, which was passed in 2006 to protect industries that were worried about false injury claims stemming from silica exposure.

      On Wednesday, the Tennessee Supreme Court grilled attorneys representing Jacobs Engineering, the firm that oversaw safety during the cleanup of the 2008 Kingston power plant coal ash spill, and the workers who say they were sickened during the cleanup by exposure to the residue that's left over when coal is burned to produce electricity.

      The justices were pressing about how far they should go in applying the silica law.

      Jacobs is trying to use the silica law to derail lawsuits by hundreds of workers who say their exposure to coal ash has caused them to become ill, or even die in the cases of more than 50 workers. The company is arguing that because coal ash contains silica, the statute applies.

      Silica is the most common element in the Earth's crust, and is found in everything from breakfast cereal to bricks. It most often comes into play in lawsuits when it is turned into dust, like what happens during construction activities such as sawing concrete or bricks.

      It also comes into play in figuring out how to classify coal ash, especially fly ash, a dry form of the substance. Fly ash was kicked up constantly by machinery used during the cleanup, swirling around the 300 acres that were deluged by more than a billion gallons of coal ash slurry that burst through a broken dike at the Tennessee Valley Authority's Kingston plant storage pond on Dec. 22, 2008.

      The workers are arguing that because they don't have the diseases mentioned in the act, such as silicosis or pulmonary fibrosis, the law does not apply.

      Jacobs didn't raise the silica protections until 2020, seven years after workers filed a federal suit saying the company did not provide proper gear to protect their skin and lungs from exposure to coal ash. Jacobs denies their claims.

      By the time Jacobs hit on a possible shield through the silica act, workers had already won the first phase of their two-phase federal trial when a jury ruled that coal ash exposure could have caused their illnesses. The second phase, which is paused until the silica issue is sorted out in state court, requires workers to prove individually that their diseases were caused by coal ash exposure.

      Enter the brick example that surfaced during Wednesday's oral arguments in front of the Tennessee Supreme Court.

      Just how broad is this law? If an injury is caused by an object that contains silica, but not the silica itself – such as getting hit by a brick as opposed to breathing in silica – does the law apply?

      "If I take Goody's headache powder and I say it gave me a brain aneurysm and it contains some silica, then according to your interpretation, I mean this is a huge expansion and for the statute to be interpreted that expansively," Justice Holly Kirby said to Jacobs lawyer Dwight Tarwater.

      "And you didn't notice it for seven years? And nobody has apparently noticed it? It hasn't just bubbled up in the appellate courts? What am I missing?"

      The justices were also interested in what disease claims the act was intended to cover and how that matches up with the diseases and conditions the workers are suffering.

      "Mr. Silvey, you're saying if you can prove that the disease is caused by arsenic, it doesn't really matter that there was exposure to silica also?" Chief Justice Roger Page asked workers' lawyer Mark Silvey.

      The justices wanted to avoid getting into the weeds about the composition of coal ash. But they asked questions about the mixed dust portion of the law – mixed dust is silica plus at least one other element that causes fibers to grow in the lungs. They wanted to know how it applies to coal ash, which contains silica as well as heavy metals and possibly elements that emit radiation.

      "I mean, isn't it possible that the definition is referring to the part of the substance that is silica and fibrogenic dusts? I mean when I look up the definition of "composed of" in the dictionary, "composed of" is generally used to kind of exclusivity," Justice Sarah Campbell asked Tarwater.

      "So you know, for example, the statute could have said mixed dust means a mixture of dusts "including" silica and one or more other fibrogenic dusts, which would be nonexclusive."

      As the fight over whether Jacobs bears responsibility for the workers' illnesses continues into an eighth year, Jacobs has lost multiple appeals for immunity in addition to the federal phase one jury trial.

      Invoking the silica act may be one of the few options has left Jacobs has in its bid to avoid paying damages to the workers and their families.

      The application of the Tennessee Silica Claims Priorities Act could not only throw out a number of the workers' cases, but could also play a role in how coal ash cases are handled nationwide.

      One of the Kingston cases involves Jean Nance, who worked at the cleanup site for almost five years, according to her brother. Nance died from leukemia and her disease was not caused by exposure to silica, but if the court chooses to apply the statute, her case could be dismissed, Silvey said during the hearing.

      Nance's family filled up almost two rows in the courtroom. Her brother told Knox News that family members had traveled from as far as North Carolina to attend Wednesday's proceedings.

      A group of about 30 Kingston coal ash workers, family members, friends and environmental organizers traveled from all over Tennessee and beyond to support one another during the hearing.

      "We appreciate everything, you all have always been there for us," Julie Bledsoe said to the group before the hearing. "You've done memorial services through the years, you continue to fight."

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