Miss. Valley Silica Co. v. Reeves ex rel. All Wrongful Death Beneficiaries Reeves

• Decision Date: 17 July 2014
• Docket Number: No. 2012–CA–01702–SCT.,2012–CA–01702–SCT.
• Citation: 141 So.3d 377
• Parties: MISSISSIPPI VALLEY SILICA COMPANY, 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.
• Court: Mississippi Supreme Court

141 So.3d 377

MISSISSIPPI VALLEY SILICA COMPANY, 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–SCT.

Supreme Court of Mississippi.

April 17, 2014.

Rehearing Denied July 17, 2014.

Andy Lowry, Ridgeland, Charles G. Copeland, John D. Cosmich, Michael D. Simmons, Lakeysha Greer Isaac, Jackson, for Appellant.

David Neil McCarty, Robert Allen Smith, Jr., Timothy W. Porter, Patrick Malouf, Ridgeland, John Timothy Givens, Jackson, for Appellee.

Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.

KITCHENS, Justice, for the Court:

¶ 1. Robert Reeves, a career employee of Illinois Central Railroad, sued Mississippi Valley Silica, Inc. (Valley) for lung injuries that allegedly were caused by his inhalation of silica (a component of sand) while employed with Illinois Central. The case was dismissed without prejudice in 2006, and the present suit was filed against thirty-two named defendants in the Circuit Court of the Second Judicial District of Jones County in 2007. Robert Reeves died in 2010, before the litigation was concluded, and the case then was pursued by his wrongful death beneficiaries. After trial in May 2012 against the sole remaining defendant, Valley, the jury found economic damages in the amount of $149,464.40 and noneconomic damages of $1.5 million, with Valley 15% at fault. The jury also awarded punitive damages of $50,000, and the trial court awarded attorney fees of $257,701.50. Although Valley was found only 15% at fault, the trial court determined that the law in place in 2002, when the original complaint was filed, should apply. Accordingly, the statutory caps on punitive and noneconomic damages enacted in 2004 were inapplicable and Valley was jointly and severally liable for 50% of the judgment. Ultimately, the court determined that Valley owed the Reeves beneficiaries $824,732.20, plus $50,000 in punitive damages, and $257,701.50 in attorney fees, for a total of $1,132,433.70. Valley appealed. We hold that the plaintiff failed to present sufficient evidence to identify Valley's sand as the proximate cause of Robert Reeves's injuries as a matter of law. Therefore, we reverse the judgment of the trial court and render judgment in favor of Mississippi Valley Silica.

FACTS AND PROCEDURAL HISTORY

¶ 2. Robert B. Reeves (R.B.) was born in 1926 and worked as a brakeman, then as a conductor, for the Illinois Central Railroad from 1947 to 1991. In his capacity as a brakeman, he “had to break up the cars, switch with the switch engine, make up trains and deliver trains.” While the train was in motion, he was required to keep his head out of the window to look for problems down the line. As a result, his face was exposed to “a lot of sand, cinders and everything.” R.B. was exposed to sand and dust because sand was used for wheel traction in braking and to prevent locomotives' wheels from spinning when trains encountered grades steep enough to require its use. R.B. explained:

You had an air brake, an air gauge on that engine. A big tank was filled up with sand, and the engineer mashed that brake, it would spray that rails to keep the train from slipping. In other words, it—I don't know whether people know how they spin anyway. But he pops that sand on there. Well, that sand blows up in his face, my face and everybody else's. And if you are switching boxcars, you are always right by that engine, where all that sand, everything else comes down on you.

¶ 3. R.B. explained that he was exposed to crushed sand and dust every day. When asked how often during the day sand was blown onto the tracks, he responded, “Continuously, in some cases. You either had a lot to pull, or you are going up an incline, or you had weight back there that you couldn't pull that goes to spinning, the sand–some engines now, it automatically goes on.” He never wore any type of respiratory protection. Although later in his career he became a conductor, he stated that it was “all the same” in terms of the conditions for sand exposure. R.B. also worked for eight years at the railroad switchyard in the Masonite plant in Laurel, where he claimed he was exposed to asbestos as well as silica from sandblasting. He smoked “a pack a day or better” of cigarettes for forty-two years until he had heart surgery in 1986, at which point he quit.

¶ 4. R.B. married Gwendolyn Reeves (Reeves) in February 2002. She testified that he was in “pretty good health” when the two first married. In 2003, he began having some coughing problems, and he developed heart arrhythmia. In 2004, after increasing congestion and difficulty breathing, R.B. was diagnosed with fibrosis, or scarring of the lungs. By 2006, R.B. required the assistance of an oxygen tank to breathe adequately, and his condition gradually deteriorated over the next four years. By March 2010, he was constantly on oxygen and was confined to his home. In June 2010, his physicians informed him there was nothing more they could do, and he was told to get his affairs in order and try to stay as comfortable as possible. He died on August 1, 2010, of what his treating physician called interstitial pulmonary fibrosis. Essentially, his lungs had become scarred over time, contracting until he could not breathe enough oxygen to support his life.

¶ 5. Prior to his serious decline in health, in 2002, R.B. and others filed a multiplaintiff case against numerous defendants in the Circuit Court of the Second Judicial District of Jones County, alleging that he was afflicted with silicosis, a lung disease “caused by exposure to respirable crystalline silica....” In 2006, this Court handed down its decision in Canadian National v. Smith, et al., 926 So.2d 839, 845 (¶ 23) (Miss.2006), in which it disallowed an improperly joined multiplaintiff action and permitted refiling of separate actions by individual plaintiffs. Accordingly, the multiplaintiff action in which R.B. was involved was dismissed without prejudice with instructions to refile the case in a proper venue pursuant to this Court's holding in Canadian National. In 2007, R.B. timely refiled his case in the Circuit Court of the Second Judicial District of Jones County against thirty-two defendants, including Valley. After he died in 2010, his widow and wrongful death beneficiary Gwendolyn Reeves was substituted for R.B. and she filed an amended complaint materially similar to the original that had been filed by R.B. in 2007. The amended complaint sought wrongful death and survival damages.

¶ 6. When trial finally commenced on May 29, 2012, Valley was the sole remainingdefendant.¹ Reeves's position is that R.B.'s injuries and death were caused by mixed-dust pneumoconiosis (MDP) ² due to his exposure to asbestos and silica. Because R.B. previously had filed a suit for asbestosis damages, in this case, Reeves, his widow, was seeking damages due only to “the silica component of the mixed-dust disease.” The facts surrounding R.B.'s exposure to silica and his resulting illness are gleaned from the testimony of several witnesses, some who testified by video deposition and some who testified at trial. Reeves produced witnesses to testify about R.B.'s exposure to silica, Valley's failure properly to warn about the dangers of silica exposure, and how R.B.'s exposure to silica had caused silicosis and ultimately, his death. We address only the evidence adduced to prove that Valley sold the sand that allegedly injured and killed R.B.

¶ 7. At trial, the then-deceased R.B. testified via video deposition about his routine and regular exposure to sand and dust that was sprayed onto tracks traversed by trains on which he worked for more than forty years, as well as his exposure to asbestos and silica at the Masonite plant in Jones County, where he had worked switching trains for eight years. R.B. testified that he specifically remembered using Valley bags of sand during a flood in Jackson in the 1970s. He seemed to be trying to say that Valley sand was used at other times and for other purposes, but he did not recount another specific instance of his having used Valley sand.³ Additionally, on cross-examination, R.B. testified that he did not fill the large sand tanks on locomotives from which sand was sprayed onto the rails, and therefore, he rarely dealt with the actual sand bags from which such tanks were filled.

¶ 8. A.J. Bohannon, who worked on the same crew with R.B. for more than thirty years, testified for Reeves. Bohannon testified about the conditions he and R.B. had faced when their job took them to the Masonite plant at Laurel, Mississippi.⁴ He testified that, when the train went through the boiler room, the workers on the train would be exposed to sand dust and “excess waste stuff that comes out down there.” Bohannon also testified about the conditions in the cab when sand was sprayed on the tracks to prevent wheel slippage. The sand cut on automatically when the train was in a “heavy pull,” and with the “traction motors ... pulling air through the cab of the engine,” the sand would get sucked up into the cab where Bohannon and R.B. were located. Bohannon also testified that the two were exposed to sandblasting three days a week in a Mobile, Alabama, switching yard. This exposure occurred throughout their entire careers. In the yard, R.B. and Bohannon could be anywhere from twenty-five feet to one hundred yards away from sandblasting activities. According to Bohannon, Valley sand was used for sandblasting at the switch yard, and it was used for traction sand by Illinois Central.

¶ 9. Dr. Vernon Rose, a certified industrial hygienist, testified about the total amount of silica exposure to which R.B. was subjected over his career. He testified that traction sand is pulverized into fine dust when it is crushed between the wheels of a train and the track, and that sandblasting pulverizes sand particles in...