Coal ash workers' case heard by Tennessee Supreme Court

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RETRANSMISSION TO CHANGE NAME TO JEAN NANCE - Michael Dunn, right, of Maryville, Tenn., wears a button with a photo of his late sister, Jean Nance, as he attends a Tennessee Supreme Court hearing Wednesday, June 1, 2022, in Nashville, Tenn. Vance, who was retired from working for the Tennessee Valley Authority, was called back to work at the TVA's Kingston Fossil Plant after a coal ash spill in 2008. Vance died in 2015 of leukemia. The court heard arguments that can determine whether workers at the plant have legal recourse to sue for damages they say were caused by their exposure to coal ash after the 2008 spill. (AP Photo/Mark Humphrey)

NASHVILLE, Tenn. – Tennessee Supreme Court justices fired numerous questions Wednesday at a company that is challenging lawsuits alleging its workers were sickened or died after cleaning up the nation's worst coal ash spill, which happened more than a decade ago.

Oral arguments centered on Jacobs Engineering's contention that the workers' claims should fall under a Tennessee law that limits legal challenges involving exposure to silica, a component of coal ash. Workers who participated in the cleanup of the 2008 spill at Tennessee Valley Authority’s Kingston Fossil Plant and their family members watched intently in court, many wearing “Remember Kingston” pins.

Mark Silvey, an attorney for the workers and families, said there would be “virtually no kind of claim that would not be covered by the Tennessee Silica Claims Priorities Act" under Jacobs' interpretation.

Some examples, he said, are if a bag of concrete, which contains silica, falls on someone's head as they walk through a construction area; if someone is killed with a brick, containing silica, and the family wants to sue for wrongful death; or if there was a product liability issue with irritation from children's diapers, which can contain silica.

Justice Kirby Holly said the court has to consider how the interpretation would apply otherwise, noting further that breakfast cereal and the pain reliever Motrin contain silica.

“If I eat a breakfast cereal and my claim is that it had ground glass in it, according to your definition, I think I would be completely precluded from immediate injuries that took place,” Kirby said.

Dwight Tarwater, an attorney representing Jacobs, said the law has a “spectacularly broad definition” of what it would cover and that includes the alleged illnesses the workers suffered as a result of their exposure to coal ash.

"The words say what they say, they mean what they say,” he said. He said if opposing attorneys have questions about the scope of the law, they should take it up with state lawmakers. He also noted that coal ash has a large concentration of silica.

“Would it apply to a 'brick' situation? Probably not, from just a commonsense standpoint," Tarwater said. "But the words say it would. The words say that it's to be interpreted broadly. The words say it applies to any contact with, any inhalation of."

The worker's attorneys argue the silica law was never meant to apply to cases like theirs. The act specifically refers to silica, which is just one component of coal ash. The components they believe caused the worker injuries include arsenic, lead, cadmium, mercury and radium, but not silica. The law also refers to claims for very specific injuries — silicosis and pulmonary fibrosis — that are not at issue in this case.

The law requires anyone pursuing claims for exposure to silica or mixed dust to file a doctor’s report concluding that the exposure is a “substantial contributing factor” to the patient’s illness. For plaintiffs bringing wrongful death claims on behalf of a loved one, they must also show the worker was exposed to the dust for at least five years. Workers with lung cancer are subject to the five-year provision too and additionally must show that their cancer was diagnosed at least 10 years after their first exposure to the dust.

In court filings, Jacobs said the vast majority of plaintiffs either didn’t file the doctor reports, filed inadequate reports, or didn’t meet the time restrictions. For example, one worker died from lung cancer in 2015, less than seven years after the spill, so that worker's family should not be allowed to sue, according to Jacobs.

The workers’ attorneys also have argued it is too late to bring this challenge. The case already went through the first part of a two-part federal trial in 2018, when a Knoxville, Tennessee, jury found that Jacobs breached its duty of care to the workers. The jurors said Jacobs’ actions were capable of making the workers sick. Whether those actions actually did make them sick, and thus made the victims eligible for monetary damages, was left for a subsequent trial or trials.

Mediation ordered by the judge was unsuccessful, but a new trial date has not been set as Jacobs continues to pursue legal challenges. Twice, the company has asked the 6th U.S. Circuit Court of Appeals to find that it is immune from being sued because it was acting on behalf of the Tennessee Valley Authority, a federal agency. The court has ruled against Jacobs both times, most recently last month.

Tennessee's Supreme Court got involved because the federal judge asked it to interpret the state law.

Jacobs’ attorneys have said the company did its best to manage the cleanup in a way regulators said was safe. It has not been proved that Jacobs — or even coal ash — is to blame for any illnesses, and the Environmental Protection Agency classifies coal ash as nonhazardous.

On Wednesday, Silvey mentioned Jean Nance, who worked in the office from 2009 to 2013 on the cleanup job, but ultimately died of an aggressive form of leukemia in 2015. Silvey said Nance's claim would be dismissed under the company's legal interpretation.

Nance's brother, Mike Dunn, and other family members wore big pins displaying a photo of her face as they watched. Afterward, they were cautiously hopeful.

“I'm just hoping something can get resolved,” Dunn said. “Jean, she knew she wasn't going to make it. But she was interested in the other workers.”