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LexisNexis® Mealey's™ Silica Legal News



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Mississippi High Court Will Review New Trial Order For Sandblaster
JACKSON, Miss. - A sand supplier on May 9 asked the Mississippi Supreme Court to reverse a trial court's order granting a new trial to a sandblaster on the issue of failure to warn, arguing that the lower court abused its discretion in setting aside the defense verdict (Dependable Abrasives v. Richard Pierce, No. 2013-IA-01162, Miss. Sup.; See May 2013, Page 4).



Product Defect Claims Were Untimely Filed, Mask Maker Tells Mississippi High Court
JACKSON, Miss. - A jackhammer operator's claims that his respirator failed to protect him from inhaling silica were untimely filed because he failed to commence the suit within one year of the dismissal of a similar previous suit, the respirator manufacturer tells the Mississippi Supreme Court on May 14, seeking to vacate a $875,000 jury award (Mine Safety Appliances Co. v. Huey P. Holmes, No. 2014-CA-00009, Miss Sup.).



Illinois Appeals Court Affirms Denial Of Workers' Comp Claim
MOUNT VERNON, Ill. - The five-year statute of limitation in an Illinois occupational disease statute applies only to coal workers' pneumoconiosis and not to chronic obstructive pulmonary disease (COPD), an Illinois appeals court said June 9 in affirming the denial of a former coal miner's workers' compensation claim as untimely (Jack Carter v. Illinois Workers' Compensation Commission, et al., No. 5-13-0151WC, Ill. App., 5th Dist., 2014 Ill. App. LEXIS 388).



West Virginia High Court Affirms Refusal To Increase Miner's Disability Award
CHARLESTON, W. Va. - A diffusion test showed that a coal miner was not entitled to an increase in his 15 percent permanent partial disability award, the West Virginia Supreme Court of Appeals held June 10, affirming the reversal of a claims administrator's additional award (Franklin P. Bailey v. United Coal Co. LLC, No. 13-0116, W. Va. Sup., 2014 W. Va. LEXIS 705).



Widow Is Not Entitled To Dependent's Benefits, West Virginia High Court Affirms
CHARLESTON, W. Va. - A coal miner's widow is not entitled to dependent's benefits because evidence shows that the decedent died from bronchopneumonia and that occupational pneumoconiosis was not a material contributing factor in his death, the West Virginia Supreme Court of Appeals held June 6 in affirming the denial of benefits (Edith Bailey, widow of Eugene R. Bailey v. West Virginia Office of Insurance Commissioner, et al., No. 12-1528, W. Va. Sup., 2014 W. Va. LEXIS 674).



West Virginia High Court Upholds Denial Of Benefits To Coal Miner's Widow
CHARLESTON, W. Va. - After reviewing expert testimony on whether occupational pneumoconiosis was a significant factor in a coal miner's death, the West Virginia Supreme Court of Appeals on June 9 affirmed the denial of dependent's benefits to his widow (Mamie Harris, widow Of Fred C. Harris v. West Virginia Office of Insurance Commissioner, et al., No. 13-0066, W. Va. Sup., 2014 W. Va. LEXIS 692).



Sanctions Sought Against Sandblaster For Failure To Disclose Affidavit
PINE BLUFF, Ark. - An Arkansas federal court is set to rule on three silica defendants' April 11 arguments that a sandblaster and his attorneys should be sanctioned for violating their disclosure and discovery obligations by failing to produce a pulmonologist's affidavit for nearly a year after it was executed (Hershel Lee Robinson v. Mine Safety Appliances Co., et al., No. 12-00383, E.D. Ark.; See March 2014, Page 9).



Recent Decision Supports Arbitration Of Texas Claims, O'Quinn Defendants Say
CORPUS CHRISTI, Texas - A law firm and attorneys associated with the late John M. O'Quinn on April 10 filed a supplemental brief in a Texas federal court on a recent court decision they say supports their efforts to arbitrate silica plaintiffs' malpractice claims (Frank Bates, et al. v. Richard N. Laminack, et al., No. 12-00387, S.D. Texas, See May 2014, Page 14).



Excess Carrier Argues Other Insurers Must Pay For $1.09 Million Award
JACKSON, Miss. - An excess insurer argues June 13 to a Mississippi federal court that several other policies must be exhausted before it is obligated to contribute to the payment of a $1.09 million jury award to the widow of a man who died from a silica-related illness against a mutual insured silica industry defendant (Dorothy L. Barnett, individually and as wrongful death beneficiary of Howard Barnett, et al. v. Pangborn Corp., No. 14-221, S.D. Miss.; See December 2012, Page 4).



Insurer Appeals Insured's $8 Million Coverage Award To West Virginia High Court
BERKELEY SPRINGS, W.Va. - An insurer filed a notice of appeal on April 4 to the West Virginia Supreme Court of Appeals, seeking review of a jury's award of $8 million and a judge's subsequent award of $4.7 million in attorney fees and approximately $4.4 million in interest in a silica coverage suit (U.S. Silica Co. v. ACE Fire Underwriters Insurance Co., et al., No. 14-0343, W. Va. Sup.).



Mississippi High Court Throws Out Award To Railroad Worker's Widow
JACKSON, Miss. - The widow of a deceased railroad employee failed to produce evidence at trial that the silica inhaled by her late husband was supplied by Mississippi Valley Silica Co., the Mississippi Supreme Court held April 17. The state high court vacated a jury verdict of more than $824,000 against the company (Mississippi Valley Silica Co. Inc. v. Gwendolyn M. Reeves, individually and as wrongful death beneficiary of Robert B. Reeves, deceased, and on behalf of all wrongful death beneficiaries of Robert B. Reeves, deceased, No. 2012-CA-01702, Miss. Sup.; 2014 Miss. LEXIS 211; See February 2014, Page 8).



Mississippi Federal Judge Rejects Sandblaster's Bid To Modify Timeliness Ruling
HATTIESBURG, Miss. - A Mississippi federal judge rejected a sandblaster's request to alter or amend a ruling that his product liability claims against silica industry defendants were time-barred, holding on April 3 that the plaintiff failed to show any basis to modify the judgment (Talmadge Vernon Langston v. 3M Co., et al., No. 12-163, S.D. Miss.; See March 2014, Page 8).



4th Circuit Says Physician's Notes Support Award Of Benefits To Miner's Widow
RICHMOND, Va. - A miner's widow is entitled to survivor's benefits under the Black Lung Benefits Act (BLBA), the Fourth Circuit U.S. Court of Appeals held May 1 in reversing an administrator's denial. The appeals court pointed out that the decedent's physician relied on substantial treatment notes and personal observation in determining that pneumoconiosis hastened his death (Nora Collins, widow of Johnnie Collins v. Pond Creek Mining Co., et al., No. 13-1702, 4th Cir., 2014 U.S. App. LEXIS 8211).



Carrier Unable To Rebut 15-Year Presumption For Miner, 4th Circuit Affirms
RICHMOND, Va. - An administrative law judge (ALJ) did not improperly restrict evidence presented by an employer's carrier to rebut the 15-year presumption under the Black Lung Benefits Act (BLBA), the Fourth Circuit U.S. Court of Appeals affirmed April 15. The court said the ALJ properly assessed the carrier's two experts' opinions on disability causation as "not well-reasoned" (West Virginia CWP Fund, as carrier for Daniel Boone Coal Company of WV Inc., v. Ardis J. Gump, et al., No. 11-2416, 4th Cir., 2014 U.S. App. LEXIS 6973).



7th Circuit Refuses To Rehear Or Stay Ruling On Donning And Doffing Work Clothes
CHICAGO - The Seventh Circuit U.S. Court of Appeals on April 2 denied an employers' petition for a rehearing en banc of a panel's ruling that a federal agency's decision not to create a rule requiring employees exposed to silica dust to don and doff protective clothing at work did not bar the introduction of evidence on the compensability of such activities under the Fair Labor Standards Act (FLSA). On April 24, the appeals court refused to stay its mandate pending the employer's appeal to the U.S. Supreme Court (Ryan DeKeyser, et al. v. Thyssenkrupp Waupaca Inc. d/b/a Waupaca Foundry Inc., No. 12-3306, 7th Cir.; See January 2014, Page 8).



West Virginia High Court Reverses Denial Of Benefits To Worker's Widow
CHARLESTON, W. Va. - The West Virginia Supreme Court of Appeals on May 7 reversed the denial of dependent's benefits to a widow, holding that she demonstrated that occupational pneumoconiosis, among other illnesses, contributed to her husband's death (Betty Keffer, widow of John C. Keffer v. West Virginia Office of Insurance Commissioner, et al., No. 12-0533, W. Va. Sup. App., 2014 W. Va. LEXIS 556).



Miner's Smoking Bars Benefits Increase, Says West Virginia High Court
CHARLESTON, W. Va. - A former coal miner's smoking history accounts for the 5 percent increase in his lung impairment, the West Virginia Supreme Court of Appeals held April 16 in upholding the refusal to increase his permanent partial disability award for pneumoconiosis (Richard Lester v. West Virginia Office of Insurance Commissioner, et al., No. 12-1344, W. Va. Sup. App., 2014 W. Va. LEXIS 442).



West Virginia High Court: Miner's Medical History Bars Dependent's Benefits
CHARLESTON, W. Va. - A deceased coal miner's medical records show that occupational pneumoconiosis did not contribute in any material degree to his death from Alzheimer's dementia and heart failure, the West Virginia high court ruled on April 24 in affirming the denial of dependent's benefits to the miner's widow (Juanita Rakes, widow of Noah H. Rakes v. West Virginia Office of Insurance Commissioner, et al., No. 12-1356, W. Va. Sup., 2014 W. Va. LEXIS 466).



Evidence Does Not Support Benefits Award, West Virginia High Court Affirms
CHARLESTON, W. Va. - The lack of evidence of any pulmonary impairment attributable to occupational pneumoconiosis justified the reversal of a permanent partial disability award to a retired coal miner, the West Virginia Supreme Court of Appeals affirmed April 14 (Robert J. Reynolds v. Kingston Mining Inc., No. 12-1306, W. Va. Sup., 2014 W. Va. LEXIS 434).



Reconsideration Is Sought Of Order To Arbitrate With O'Quinn Defendants In Texas
CORPUS CHRISTI, Texas - Plaintiffs alleging malpractice against silica-exposure law firms and attorneys associated with the late John M. O'Quinn on March 21 asked a Texas federal court to reconsider its order to arbitrate, citing the costs involved in the proceedings and the lack of opportunity for additional discovery (Frank Bates, et al. v. Richard N. Laminack, et al., No. 12-00387, S.D. Texas, See November 2013, Page 5).



Georgia Appeals Court Reverses Proximate Cause, Failure-To-Warn Rulings
ATLANTA - A sandblaster sufficiently proved that three companies that made or supplied respirators to his employers proximately caused his silica-related injuries and that small sandblasting companies were not knowledgeable about proper respiratory equipment, a Georgia appeals court held March 21 in reversing a trial court's ruling (Fouch v. Bicknell Supply Co., et al., No. A13A2252, Ga. App., 2nd Div., 2014 Ga. App. LEXIS 209).



Worker Is Entitled To Statutory Presumption, Benefits, 4th Circuit Says
RICHMOND, Va. - An administrative law judge (ALJ) properly held that a coal mine worker suffered from complicated pneumoconiosis, which entitled him to the irrebuttable statutory presumption of totally disabling pneumoconiosis and an award of benefits, the Fourth Circuit U.S. Court of Appeals affirmed April 4 (Paramont Coal Company of Virginia LCC v. Director, Office of Workers' Compensation Programs, et al., No. 13-1114, 4th Cir., 2014 U.S. App. LEXIS 6266).



11th Circuit Says Employer Failed To Rebut BLBA's Presumption Of Disability
ATLANTA - The 11th Circuit U.S. Court of Appeals on April 3 rejected an employer's arguments that a retired mine worker was not entitled to the Black Lung Benefits Act's (BLBA) statutory presumption of total disability due to pneumoconiosis and that it had rebutted that presumption (Oak Grove Resources LLC v. Director, OWCP, et al., No. 13-13019, 11th Cir., 2014 U.S. App. LEXIS 6137).



4th Circuit: BLBA Benefits Award Supported By Medical Evidence Of Pneumoconiosis
RICHMOND, Va. - Substantial medical evidence and the proper use of the Black Lung Benefits Act (BLBA) preamble supported an administrative law judge's (ALJ) decision to affirm a pneumoconiosis benefits award to a retired coal miner, the Fourth Circuit U.S. Court of Appeals concluded March 26 (Westmoreland Coal Co. Inc. v. Edward L. Stidham, et al., No. 12-1866, 4th Cir.; 2014 U.S. App. LEXIS 5536).



ALJ Did Not Improperly Rely On BLBA Preamble, 9th Circuit Confirms
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on April 1 affirmed the award of pneumoconiosis benefits to a surface miner's widow, holding that an administrative law judge (ALJ) did not improperly rely on the preamble to the Black Lung Benefits Act (BLBA) in making the award (Peabody Coal Co. v. Director, Office of Workers' Compensation Programs, et al., No. 12-70535, 9th Cir., 2014 U.S. App. LEXIS 5996).



Expert Testimony Supports Benefits Award To Miner's Widow, 6th Circuit Affirms
CINCINNATI - A Sixth Circuit U.S. Court of Appeals panel rejected an employer's arguments that a coal miner's widow failed to prove that pneumoconiosis caused his death, holding March 18 that, in awarding survivor's benefits, an administrative law judge (ALJ) reasonably relied on evidence from the decedent's examining and treating physicians (Lemarco Inc., et al. v. Nancy Helton, widow of Wayne Helton, et al., No. 13-3499, 6th Cir., 2014 U.S. App. LEXIS 5212).



West Virginia High Court Upholds Refusal To Dismiss Or Stay Coverage Dispute
CHARLESTON, W. Va. - A trial court acted within its discretion in refusing to dismiss or stay a dispute over insurance coverage for settlements reached in two lawsuits against a respirator maker in favor of litigation pending in two other states, the West Virginia Supreme Court of Appeals ruled March 27 (State of West Virginia, ex rel. North River Insurance Co. v. Honorable Robert F. Chafin, Special Judge of the Circuit Court of Wyoming County, et al., No. 13-0897, W. Va. Sup. App., 2014 W. Va. LEXIS 252).



Only Personal Identification Data May Be Filed Under Seal, Federal Judge Rules
PITTSBURGH - Motions to file certain documents under seal filed by a silica industry defendant and its insurer were denied March 31 by a Pennsylvania federal judge who agreed only to the insurer's request to redact personal identification information in underlying plaintiffs' health records (Mine Safety Appliances Co. v. North River Insurance Co., et al., No. 09-348, W.D. Pa., 2014 U.S. Dist. LEXIS 42771; See October 2012, Page 7).



New York Federal Judge Dismisses 6 Insurers From Silica, Asbestos Coverage Suit
NEW YORK - A New York federal judge on March 20 granted a motion to dismiss filed by six insurers in silica and asbestos bodily injury litigation after determining that the insurer that impleaded the six insurers failed to state a claim upon which relief could be granted (Danaher Corp. v. Travelers Indemnity Co., et al., No. 10-0121, S.D. N.Y.; 2014 U.S. Dist. LEXIS 37657; See April 2013, Page 8).



West Virginia High Court Vacates Benefits Award Based On Misread Autopsy Report
CHARLESTON, W.Va. - The West Virginia Supreme Court of Appeals on April 8 reversed an order awarding dependent's benefits to a coal miner's widow, holding that the order was based on a "material misstatement or mischaracterization" of an autopsy report that indicated that pneumoconiosis was a contributing factors in the miner's death (Pine Ridge Coal Co. LLC v. Geneive J. Moore, widow of John D. Moore, No. 12-1141, W.Va. Sup. App., 2014 W.Va. LEXIS 340).



West Virginia High Court Affirms Denial Of Claim For Cost Of Lung Transplant
CHARLESTON, W. Va. - A coal miner collecting benefits for occupational pneumoconiosis is not entitled to reimbursement for the cost of lung transplant surgery because he failed to get the preauthorization required by state statute and failed to show that the statute is invalid, the West Virginia high court affirmed March 20 (Theodore M. Latusek Jr. v. Consolidation Coal Company Morgantown Operations, No. 11-1546, W. Va. Sup.; 2014 W. Va. LEXIS 233).



Worker's Exposure Does Not Meet Statutory Terms, West Virginia High Court Affirms
CHARLESTON, W. Va. - A plant worker is not entitled to a statutory presumption of occupational pneumoconiosis because he failed to meet the statutory 10-year dust exposure requirement, the West Virginia Supreme Court of Appeals affirmed March 20 (Edward Martin Jr. v. Alcan Rolled Products - Ravenswood LLC, No. 12-0856, W. Va. Sup. App., 2014 W. Va. LEXIS 231).



California Appeals Panel Revives Suit Alleging Dust And Metal Fume Exposure
LOS ANGELES - A Second District California Court of Appeal, Division Four, panel on March 21 overturned dismissal of claims by a foundry worker who alleges that exposure to silica dust and metal fumes caused him to develop pulmonary fibrosis; the panel concluded that the trial court erred by sustaining defense demurrers without leave to amend under the component parts doctrine (Flavio Ramos, et uxor v. Brenntag Specialties Inc., et al., No. B248038, Calif. App., 2nd Dist., Div. 4; 2014 Cal. App. LEXIS 261).



Louisiana State Committee Passes Legislation On Latent Disease Venue
BATON ROUGE, La. - In a 7-5 vote, the Louisiana House of Representatives Committee on Civil Law and Procedure on April 1 passed legislation requiring latent disease actions such as those involving silica and asbestos exposure to be brought in the parish where the exposure occurred.