BEAUMONT - A silicosis plaintiff who had to adjust his lawsuit on the fly has lost his appeal of an order granting victory to one of his case's deep pockets - Exxon.
The 14th Court of Appeals in Beaumont on Oct. 31 ruled against Stanley Cole, who thought he was a sandblaster but later found out the material he was using to clean railroad cars was actually a silica-free abrasive called olivine.
Cole worked for contractor Prokar for seven years at the Exxon facility in Beaumont, starting in 1998. In 2014, he was diagnosed with idiopathic pulmonary fibrosis, and his doctor said he probably has silicosis.
Four years later, another pulmonologist attributed his condition to a "significant history of prior silica exposures as a sandblaster."
He sued Exxon and other companies in 2018 in Jefferson County, and the case was transferred to a silicosis docket in Harris County. But once there, Prokar's owner testified his company used olivine and not sand, though there was a possibility sand could have been used on occasion.
A 2022 third amended petition alleged silica and olivine dust caused pulmonary massive fibrosis and charged Exxon with premises liability and assumption of duty. Exxon said Cole's doctor and safety expert presented unreliable evidence linking olivine dust to his lung disease.
Exxon also said the case should stay in the silicosis court because the petition still mentioned sand. The court retained jurisdiction over the case and granted Exxon's causation motion, awarding it summary judgment.
In response, Cole said it was wrong for the silicosis court to retain jurisdiction and moved to remand it to Jefferson County. After the Exxon ruling, he had filed yet another petition to remove all mentions of sand and dismissed all defendants associated with it.
Exxon resisted and the silicosis judge agreed with it, denying the motion to remand. Cole appealed, saying the silicosis court lacked jurisdiction and erred in excluding his causation evidence.
Cole's expert attempted to point to OSHA guidance that said olivine includes small amounts of nickel and chromium.
Justice Meagan Hassan agreed with Exxon, though, that Cole's air-fed hood adequately protected him from dangers.
"We see no evidence in the record that shows the dust exposure when calculated with the correct protection factor violates recommended exposure limits for olivine, nickel or chromium dust," Hassan wrote.
Hassan added the fourth amended petition that removed references to sand was filed without the court's permission and after the order granting summary judgment was signed.
"Thus, his fourth amended petition did not supersede his third amended petition which therefore remained the live pleading in the case," she wrote.