National article prompts revisit to Jefferson County silicosis case

By Marilyn Tennissen | May 14, 2009

Jefferson County has been in the national news recently,not for hurricane coverage but in an article about tort reform that named a local court as the first place a major company lost a silica trial.

On May 4, the Wall Street Journal published an interview with John Ulizio, CEO of U.S. Silica. The article praised Ulizio for his success at taking on the plaintiffs' bar as his company faced thousands of silicosis lawsuits.

WSJ writer Kimberley Strassel said Ulizio's battle resulted in not only courtroom victories for defendants, but also led U.S. District Judge Janis Jack of Corpus Christi in 2005 to investigate lawyers and doctors who were fabricating cases.

Instead of automatically settling cases, Ulizio said he considered cases seriously, taking them to trial when possible.

At that point in the article, Jefferson County comes up. Ulizio told the WSJ, "The first time we ever lost a case in trial, it was 2001. We tried it in Beaumont, Texas, and lost $7.5 million."

The case to which Ulizio refers is Donald Tompkins and Ruby Tompkins et al vs. U.S. Silica Co. et al, Case No. 162-276.

Filed Feb. 24, 2000, the wrongful death suit was filed by the family of deceased sand blaster Donald Tompkins. Tompkins worked as an abrasive blaster from the 1960s through 1980s doing six-year stints each for Newsome & Work Sandblasting, Akron Sandblasting and F.W. Gartner Co.

A personal injury case while Tompkins was alive had previously ended in a mistrial. After his death, his family members undertook the wrongful death and survivor litigation.

Court papers say Tompkins wore an MSA brand air-fed hood while sandblasting for ASB and Newsome, and wore a paper dust mask while cleaning up a site.

Defendants were Pennsylvania Glass Sand Co. and Ottowa Silica Co., predecessor companies to U.S. Silica. Tompkins and his fellow employees said that during their employment PGS and Ottawa did not place any silicosis warning labels on their bags of sand.

By the time Tompkins worked for Gartner in the 1980s, virtually all companies in the sand industry had started warning workers.

A trial began in March 2001 in the Jefferson County 60th District Court of Judge Gary Sanderson. After about a month of testimony and eight hours in deliberations, the jury reached a verdict in favor of Tompkin's family on April 20, 2001.

They found that the defendants' defective marketing of their silica-containing products was the producing cause of Tompkins' silica-related illness and that their failure to warn was a proximate cause of the injuries.

PGS and Ottawa were each 50 percent responsible, the jury determined.
Jurors also determined that the defendants acted with malice.

As compensation to Donald Tompkins before his death, the jury awarded $2 million for pain and mental anguish, $1 million for disfigurement and $1 million for physical impairment.

His wife Ruby was awarded $500,000 for past and future pecuniary loss, $500,000 for past and future loss of companionship and society and $1 million for past and future mental anguish.

Daughters Dawn Maldonado and Sherri Lopez each received $750,000.

U.S. Silica was represented by Jacqueline Houlette of Beirne, Maynard & Parsons LLP in Houston.

The plaintiffs were represented by Guy Fisher of Provost Umphrey and Lance Lubel of Heard Robins Cloud & Lubel LLP in Houston.

In spite of the verdict, Ulizio's fight wasn't over yet. U.S. Silica took the jury's decision to the Texas Ninth District Court of Appeals in Beaumont.

The company argued that there was no evidence that Tompkins would have heeded the warning labels had they been provided, but the appellate justices rejected that argument.

U.S. Silica also argued that the dangers of silica were well known by workers within the blasting industry. But justices mentioned that one witness testified he had been told by his father that "sand is bad for you," and another said his mother warned him that silica sand was dangerous.

The company made strong arguments that the plaintiffs failed to exclude smoking as a cause of Tompkins' emphysema and death.

Because they allowed their own medical experts to testify that smoking contributed to the emphysema, the plaintiffs failed to prove that Tompkins' silica-related injury was a producing and proximate cause of his injury and death.

But the appeals court ruled that the act of the defendant need not be the sole cause of an injury, that there may be more than one producing or proximate cause.

U.S. Silica did win one of its arguments on appeal, however. It said the trial court erred when it excludeda CT scan report and testimony interpreting the report from evidence.

The scan apparently showed no evidence of interstitial fibrosis in Tompkins' lungs, but Judge Sanderson said it was unreliable because at some point it had been lost by the hospital. The appellate justices held that the trial court made a mistake by excluding it.

But although they agreed with one of U.S. Silica's arguments, Chief Justice Ron Walker and Justices Don Burgess and David Gaultney affirmed the jury's verdict on Nov. 21, 2002.

U.S. Silica was still not giving up the fight however, and took the case to the Texas Supreme Court.

Three years later, the high court gave the company a second chance.

The court considered U.S. Silica's argument that it had no duty to warn Tompkins or his employers of the dangers associated with using flint in abrasive blasting.

In a per curiam decision delivered Jan. 21, 2005, the justices agreed that the dangers of using flint in abrasive blasting had been well known throughout the industry and by health and safety professionals and government regulators for most of the 20th century.

But whether a flint supplier owed a duty to warn its customers' employees of the dangers depended on whether the warnings could effectively reach the employees.

That determination, the opinion stated, was not up to the high court but to the trial court. Without hearing oral arguments, they reversed the appeals court and remanded the case back to Sanderson to deal with the duty to warn issue.

The case did go back on the books in Jefferson County, and court papers include scheduling orders through February 2008.

After a fight of seven years, files indicate that on April 2, 2008, the parties agreed to settle all claims. Judge Sanderson dismissed the case with prejudice and ordered each party to pay its own costs.

Attorneys Lubel and Houlette saw the case to the end.

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