Jurors' decision in silica claim at odds with Mississippi judge

LAUREL, Miss. (Legal Newsline) - Jones County jurors rejected a sandblaster's silica claim eight months ago, but a judge's decision to give the plaintiff a second shot may yet result in a verdict against former sand supplier Dependable Abrasives.

After deliberating for an hour and 25 minutes on April 3, a panel of 12 returned with a verdict that seemed to stun Circuit Judge Billy Joe Landrum.

Foreman: "We had 11 vote no and one vote yes."

Landrum: "Eleven people voted that they -"

Foreman: "Eleven voted no."

Landrum: "No, what?"

Foreman: "The defendants are not responsible."

Landrum disagreed with the verdict and in June ordered a new trial for plaintiff Richard Pierce.

Dependable Abrasives appealed to the Mississippi Supreme Court, which has not reached a decision as of Dec. 11.

Near the end of the Pierce lung injury trial, Landrum reflected upon 38 years of mass torts and billions upon billions of dollars.

"I don't know how you sort it out," he said in court on April 2 while reminiscing on his career.

"You do the best you can and you know, causation, who knows? I don't know."

Lawyers listened to his rambling remarks, but jurors missed the speech.

He had sent them out after Pierce rested his case.

Walter Johnson of Jackson, representing former respirator maker American Optical, handed Landrum a motion for directed verdict as it began its case.

Johnson said the statute of limitations had run out.

He said Pierce admitted that he had known he was sick since 2002, possibly 1992.

He said an expert for Pierce identified silica related conditions in 2002 and 2005, and another relied on slides from 2005 for his silicosis opinion.

Landrum: "I ruled on that pretrial and there's nothing been presented at trial to change my mind so that's moot at this point."

Johnson then pleaded that Pierce's proof was defective, saying the plaintiff didn't read the warning on the box the respirators came in.

He also said the products on trial were not designed for sandblasting.

He said Pierce testified that he wore a T-shirt over his face and placed the mask on his face, making a proper fit impossible.

Landrum: "Well as I see that - Mr. Pierce wearing a T-shirt - in my opinion or my observations, Mr. Pierce received no kind of instructions.

"Then whose fault was it he didn't receive any instruction?

"You tried to do everything you could to put it on the employer, and that's not up to me to decide. That will be up to the jury.

"That's where you're trying to place all the blame, is on the plaintiff and the employer, and trying to excuse the manufacturer from any responsibility of warning or advice or how to use or anything else about the mask.

"You've got expert testimony coming in, I mean up front, and that's where it's going to present a prima facie case.

"I can't rule this case out right now. I've got to go through the end of it because you all are prepared to go forward with your experts."

Dependable Abrasives also moved for directed verdict.

For Dependable, Gene Harlow of Laurel said Pierce failed to identify the use of its sand in the entire period when he could possibly have been exposed to it.

Harlow: "Right here in court he identified the sand clearly as white sand."

He said former Dependable owner James Dickerson identified his sand as dark brown.

Harlow: "He clearly was not using our sand. He was using someone else's. There's a lot of distinction between white sand and dark brown sand."

Landrum: "That's a good point with the exception that your client has testified that he had sold to 80 something different contractors throughout this area. Seemingly you would think that if all the 80 people in this area somewhere along the way that there might have been some brown sand."

Then Landrum began to recall asbestos, tobacco, and dioxin litigation.

Landrum: "I think I tried the second asbestos case in Pascagoula. That's how far back I've been trying these things."

He said he tried cigarette cases and every kind of toxic exposure case.

He said he had the "big" dioxin case in Pascagoula.

Landrum: "The Supreme Court, they fret it out somehow or other, but I can remember that we tried a couple of those asbestos - no, dioxin cases - and the Supreme Court finally came down and said that, you know, there could be some problems here but there's no injury, nobody presented any injury in those cases even though there may have been some causation for an injury if there had been an injury.

"I accumulated documents, all the documents in the case here called the Liggett documents, and wound up being used to settle a national settlement for $250 billion. Who knows how to deal with these things?

"When an expert comes in the courtroom and puts forth all these positions that they have as an expert, you know, they pretty well can make a prima facie case for the jury to have to listen to some other experts.

"If you believe that the jury could understand everything these people said today or yesterday as an expert - Most of them go to sleep."

After his remarks, Landrum called in the jury to hear the only defense witness, occupational safety professor David Anderson.

For American Optical, Bryant Spann of Charleston, W.Va., quoted a standard of the Occupational Safety and Health Administration: "Abrasive blasting respirators shall be worn by all abrasive blasting operators."

Spann asked if the standard is still followed.

Anderson: "It's still the standard today."

Plaintiff attorney Allen Smith of Ridgeland objected.

Landrum: "I don't see how the jury needs any more explanation of what the standards of OSHA are. It's just repetitious and it's tiring to me and the jury, I think, so let's get on with it please."

He told Anderson, "Doctor, whenever you answer him, don't embellish your answer by 'oh my,' 'good,' 'necessary' and all that kind of stuff."

Spann asked Anderson if an expert for Pierce testified about the standard.

Landrum: "We don't pit one witness's testimony against the other. If you want to ask him something, ask him, but don't sit there and question him about what another witness says. That's not allowed at all."

Spann asked Anderson about a model warning that an expert for Pierce had written, and Smith objected.

Spann: "I'm looking at a piece of evidence with the jury."

Landrum: "I told you, it's you pitting one witness against the other."

Spann asked Anderson if the respirators could be appropriate for cleanup.

Landrum: "You've asked him about cleanup on that respirator at least three or four times. It's repetitive. Do you have anything else?"

Spann displayed a chart of actions an employer must take after selecting a respirator, and asked Anderson if Pierce's employers followed them.

Smith objected.

Landrum: "Well, it's repetitious. In Mississippi we do allow experts to be led but we don't allow lawyers to testify, to continuously testify to the witness for a yes or no answer. Do you understand what I'm saying?"

Spann said yes, and finished his examination.

Smith cross examined Anderson, and the defendants rested.

Lawyers debated jury instructions the rest of the day and the next morning.

American Optical counsel Corey Hinshaw of Jackson asked for an instruction that his client reasonably relied on Pierce's employers to warn him.

Landrum: "I don't believe that in any case that I've ever dealt with in a products liability or warning, or whatever, that the defendant is totally exonerated. If that was true, I mean it would be a matter of law that the court could just go ahead and give a directed verdict in everything that comes before it."

Landrum denied both defendants' requests for directed verdicts. He allowed the verdict in favor of American Optical to stand.