Am. Optical Corp. v. Estate of Rankin ex rel. All the Heirs At Law of Robert Lee Rankin

• Decision Date: 18 May 2017
• Docket Number: NO. 2015-CA-01066-SCT.,2015-CA-01066-SCT.
• Citation: 227 So.3d 1062
• Parties: AMERICAN OPTICAL CORPORATION v. ESTATE OF Robert Lee RANKIN, Sr., Jean Marie Howard Rankin, Jacquelyn Denise Rankin Anderson, and Robert Lee Rankin, Jr., Individually and on Behalf of All the Heirs At Law of Robert Lee Rankin, Sr., Deceased
• Court: Mississippi Supreme Court

227 So.3d 1062

AMERICAN OPTICAL CORPORATION

v.ESTATE OF Robert Lee RANKIN, Sr., Jean Marie Howard Rankin, Jacquelyn Denise Rankin Anderson, and Robert Lee Rankin, Jr., Individually and on Behalf of All the Heirs At Law of Robert Lee Rankin, Sr., Deceased

NO. 2015-CA-01066-SCT.

Supreme Court of Mississippi.

May 18, 2017

Rehearing Denied August 17, 2017

ATTORNEYS FOR APPELLANT: MICHAEL JAMES BENTLEY, SIMON TURNER BAILEY, W. WAYNE DRINKWATER, JR., WALTER T. JOHNSON, JOSEPH GEORGE BALADI, COREY DONALD HINSHAW, JOHN BURLEY HOWELL, III

ATTORNEYS FOR APPELLEES: DAVID NEIL McCARTY, ROBERT ALLEN SMITH, JR., TIMOTHY W. PORTER, PATRICK MALOUF, JOHN TIMOTHY GIVENS

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. On May 13, 2013, a former construction worker, Robert Lee Rankin Sr., filed a complaint in Jefferson County Circuit Court against American Optical Corporation (AO) alleging an injury of "lung

disease and silica related conditions caused by exposure to respirable crystalline silica" while using defective respirators¹ manufactured by AO. Following trial on February 17–24, 2015, the jury returned a total verdict of $14 million in favor of Rankin.²

¶2. According to the verdict form, the jury found by a preponderance of the evidence that (1) Rankin had a "silica-induced lung condition;" (2) Rankin did not know nor should he have known before May 13, 2010, that he had the "lung injury

" that he alleged in the lawsuit; (3) Rankin used a respirator manufactured or sold by AO "while working in harmful concentrations of silica;" (4) there was a defect in the design of an AO product that proximately caused Rankin's silica-induced lung condition; and (5) there was a defect in the warning of an AO product that proximately caused Rankin's silica-induced lung condition.

¶3. The jury awarded $4 million in noneconomic damages and $10 million in economic damages. The jury assigned 45% of fault to AO and 55% to "Other Named and Unnamed Defendants and/or Parties."³ The trial court entered a total judgment against AO of $6.3 million, reflecting the jury's apportionment of fault. AO filed a motion to amend the judgment and a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. The trial court granted AO's motion to amend the judgment in part and amended the noneconomic damages award from $1.8 million to $1 million to comply with the statutory cap on noneconomic damages. However, the trial court denied AO's motion for a JNOV or, alternatively, for a new trial.

¶4. AO appeals, raising the following seven issues, restated for clarity:

I. Whether Rankin's claims are barred by the three-year statute of limitations.

II. Whether Rankin proved that the design of the AO respirators proximately caused his injury and that there was a feasible design alternative.

III. Whether AO is entitled to judgment as a matter of law on Rankin's failure to warn claim.

IV. Whether Rankin proved that his use of an AO respirator proximately caused his injuries.

V. Whether Rankin proved a reasonable basis for the allegation that his alleged damages were caused by silica exposure.

VI. Whether AO was deprived of its right to a fair trial in an impartial forum.

VII. Whether the $14 million verdict was against the overwhelming weight of the evidence.

¶5. It is necessary for the Court to address only the first issue raised.

FACTUAL BACKGROUND

¶6. AO manufactured and sold respiratory protection products, including the model 1050 and 1010 respirators or masks, which were introduced in 1976 and 1985 respectively. ⁴

The 1050 and 1010 were single use, disposable respirators designed to protect individuals against pneumoconiosis

and fibrosis producing dusts such as silica. Both AO respirators were marketed for use in textile, mining, quarrying, grinding, and rock crushing operations, but not in abrasive blasting operations.

¶7. Rankin worked in the construction business for various employers and independently from approximately 1965 though 2001. Rankin testified that he jackhammered and sandblasted during his career in the construction business.⁵ Rankin identified several different brands of respirators that he used throughout his career while he jackhammered and sandblasted. Two of the respirators that Rankin used while he jackhammered and sandblasted were AO's 1050 and 1010. Rankin could not recall how often or where he wore any specific respirator that he identified. Rankin never saw any boxes, packaging, or paperwork that came with the respirators, nor did anyone teach him how to use the respirators.

¶8. Larry Brown, Rankin's former coworker, testified that he worked with Rankin from 1980 to 1985. Brown testified that he and Rankin performed carpentry, sandblasted, and jackhammered during the entire five year period that they worked together. Brown testified that there was "a lot of dust created" when they sandblasted and jackhammered concrete.⁶ Although Brown's testimony was inconsistent, Brown ultimately testified that Rankin wore an AO mask while jackhammering and sandblasting from 1980 through 1985.

¶9. Rankin's "long and complicated medical history" was well documented at trial. Rankin first was diagnosed with silicosis

, an occupational lung disease, on January 14, 2014, eight months after Rankin had filed his complaint in the present case. Rankin also suffered from breathing problems since 2000; had a heart attack in 2001; underwent open heart surgery ; had multiple strokes ; had blood clots in his legs; suffered pulmonary emboli; had seizure disorders; had Type II diabetes ; underwent leg amputation below the knee due to diabetes ; had peripheral vascular disease ; had high cholesterol; suffered from hypertension ; had coronary artery disease ; had congestive heart failure ; had chronic obstructive pulmonary disease (COPD), a chronic lung disease ; and suffered from pulmonary interstitial lung disease.

¶10. Dr. Steven Haber, a physician board certified in internal and pulmonary medicine as well as a certified B–reader, testified on behalf of Rankin. A B–reader is a physician certified by the National Institute for Occupational Safety and Health (NIOSH) to read x-rays for dust diseases of the lung

such as silicosis and asbestosis. Dr. Haber explained that silicosis is a type of pneumoconiosis or "dust disease of the lung" caused by inhaling crystalline silica. Dr. Haber testified four criteria are required before a diagnosis of silicosis can be made, which are: (1) an x-ray showing scar tissue; (2) a history of exposure to silica; (3) a latency period; and (4) a clinical evaluation to determine if there was another reason for the scar tissue.

¶11. Dr. Haber testified that respirable silica may be generated during construction activities such as jackhammering and sandblasting. He said that disrupting or breaking up materials through jackhammering and sandblasting causes crystalline silica to become airborne in high concentrations. Dr. Haber testified that the inhalation of silica causes scar tissue or fibrosis to form in the interstitial or tissue part of the lung, which results in an incurable and progressive lung disease known as silicosis

.

¶12. On January 14, 2014, Dr. Haber personally interviewed and examined Rankin "regarding possible occupational lung disease

." Dr. Haber took Rankin's occupational history and reviewed Rankin's medical records, including x-rays and CT scans, as well as deposition testimony of Rankin and his coworkers. Dr. Haber gave the following summary of Rankin's occupational history based on his interview with Rankin:

[Rankin] was in the construction industry from about 1965 until 2001 when he left work. He had significant occupational exposures to silica dust. The sources of that silica dust was from sandblasting, jackhammering, construction work and being around others who were doing that sort of activity. He, over his like 35 years of work, had done about ten years or so of sandblasting. He worked around other sandblasting or jackhammering or doing activities that were producing silica dust. And that he would experience sand in the nose or the mouth while he's doing some of these activities and over man years, primarily from sandblasting and concrete work starting in the 1960s.

¶13. On January 14, 2014, Dr. Haber diagnosed Rankin with chronic silicosis

that was incurable and likely to progress. Dr. Haber testified that, although Rankin's heart problems were not caused by silicosis, the heart problems were "exacerbated" by silicosis.⁷

¶14. Dr. Obie McNair, a board certified internal medicine physician and former board certified pulmonolgist, also testified for Rankin. Dr. McNair opined that Rankin's x-rays revealed "findings consistent with silicosis

." Dr. McNair testified that Rankin's COPD was caused by simple silicosis, by exclusion. Dr. McNair based the conclusion on "articles [that] said that silic[a] exposure can also cause COPD." Dr. McNair explained that he "deduced" that Rankin's COPD was "quite possibly related to his silica exposure."

¶15. Dr. McNair testified that Rankin's diabetes

, stroke, heart attack, peripheral vascular disease, seizure disorder, hypertension, high cholesterol, and heart failure were not caused by silica exposure. Dr. McNair also testified that Rankin's medications for diabetes and cholesterol were not related to silica exposure.⁸ Dr. McNair was asked on cross examination whether Rankin's medication isordil

had anything to do with silica exposure. In response, Dr. McNair mentioned a peer reviewed journal article (Liu Article) containing a study of 40,000 Chinese workers who were exposed to silica. Over the objection of AO's counsel, Dr. McNair testified that, according to the article, people who had low level exposure to silica were at an increased risk of dying from heart related complications.

¶16. Dr. McNair testified that he did not know whether Rankin's silicosis

would progress at all. Dr. McNair also testified that Rankin's life expectancy would be shortened due to the number of his...