v. No CA DOROTHY L. BARNETT, et al. ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY NO CIV ORAL ARGUMENT NOT REQUESTED

E-Filed Document Oct 12 2015 18:45:49 2013-CA-01296 Pages: 53 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI MISSISSIPPI VALLEY SILICA COMPANY, INC. APPELLANT v. No. 2013-CA-01296 DOROTHY L. BARNETT, et al. APPELLEES RESPONSE BRIEF OF APPELLEES DOROTHY L. BARNETT, et al. ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY NO. 251-10-458CIV ORAL ARGUMENT NOT REQUESTED David Neil McCarty Miss. Bar No. 101620 DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss. 39201 T: 601.874.0721 F: 866.236.7731 E: dnmlaw@gmail.com W: McCartyAppeals.com R. Allen Smith, Jr. THE SMITH LAW FIRM, PLLC 661 Towne Center Blvd., Suite B Ridgeland, Miss. 39157 Timothy W. Porter Patrick C. Malouf John T. Givens PORTER & MALOUF, P.A. P.O. Box 12768 Jackson, Miss. 39236

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI MISSISSIPPI VALLEY SILICA COMPANY, INC. APPELLANT v. No. 2013-CA-01296 DOROTHY L. BARNETT, et al. APPELLEES CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a)(1), the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Mississippi Valley Silica Company, Inc., Appellant 2. The Honorable Winston L. Kidd, Hinds County Circuit Court 3. John D. Cosmich, Michael D. Simmons, and LaKeysha Greer Isaac, of Cosmich Simmons & Brown, PLLC, Counsel for the Appellant 4. Dorothy L. Barnett, and all other heirs at law or wrongful death beneficiaries of Howard Barnett, Appellees 5. R. Allen Smith, Jr., of the Smith Law Firm, PLLC, and Timothy W. Porter, Patrick C. Malouf, and John T. Givens, of Porter & Malouf, P.A., and David Neil McCarty, of the David Neil McCarty Law Firm, PLLC, Counsel for the Appellee So CERTIFIED, this the 12th day of October, 2015. Respectfully submitted, s/ David Neil McCarty David Neil McCarty Miss. Bar No. 101620 Attorney for Appellees i

TABLE OF CONTENTS Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii Statement of the Issues... 1 Statement of the Case... 1 Statement Regarding Oral Argument... 2 Relevant Facts... 2 Relevant Procedural History... 15 Summary of the Argument... 18 Standards of Review... 18 Argument... 18 Issue I... 18 Issue II.... 21 Issue III.... 23 Issue IV.... 27 Issue V.... 35 Issue VI.... 42 Conclusion... 47 Certificate of Service... 48 ii

TABLE OF AUTHORITIES Cases Angles v. Koppers, 42 So.3d 1, 5 (Miss. 2010)... 22 Bradfield v. Schwartz, 936 So.2d 931, 936 (Miss. 2006)... 36 Bullock v. BankChampaign, N.A., 133 S.Ct. 1754, 1757 (2013)... 44 Canadian Nat. Ry. Co. v. Waltman, 94 So. 3d 1111, 1119 (Miss. 2012)... 43 Carethers v. Blair, 280 S.E.2d 467, 469 (N.C.App. 1981)... 44 Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 156 (Miss. 2011)... 20 Coca Cola Bottling Co., Inc. of Vicksburg v. Reeves by Reeves, 486 So. 2d 374, 378 (Miss. 1986)... 26 Fleming v. Floyd, 969 So.2d 868, 878 (Miss. 2007)... 33 Foster v. Foster, 788 So.2d 779, 784 (Miss. Ct. App. 2000)... 25 Foster v. State, 148 So. 3d 1012, 1015 (Miss. 2014)... 39 Gifford v. Four-County Elec. Power Ass n, 615 So. 2d 1166, 1173 (Miss. 1992)... 24 Graves ex rel. W.A.G. v. Toyota Motor Corp., 2012 WL 1596723, *1 (S.D.Miss. May 4, 2012)... 46, 47 Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888, 895 (Miss. 2006)... 45 InTown Lessee Associates, LLC v. Howard, 67 So.3d 711, 719 (Miss. 2011)... 19, 38, 39 Jackson v. Daley, 739 So.2d 1031, 1039 (Miss. 1999)... 28, 31 Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 514-15 (5th Cir. 1984)... 27 Jones v. State, 797 So. 2d 922, 926 (Miss. 2001)... 24 Lee v. Alexander, 607 So.2d 30, 36 (Miss. 1992)... 46 Lincoln Electric Co. v. McLemore, 54 So.3d 833, 837 (Miss. 2011)... 22 Long v. McKinney, 897 So. 2d 160, 174 (Miss. 2004)... 20 McCullough v. State, 47 So. 3d 1206, 1211 (Miss. Ct. App. 2010)... 40 Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442, 451 (Miss. 2015)... 32 Miss. Ethics Com n v. Grisham, 957 So.2d 997, 1003 (Miss. 2007)... 47 Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (Miss. 2002)... 40 Miss. Valley Silica Co., Inc. v. Reeves, 141 So. 3d 377, 382 (Miss. 2014)... 30 MSU v. PETA, 992 So.2d 595, 607 (Miss. 2008)... 29 Nat l Union Fire Ins. Co. v. Mississippi Ins. Guar. Ass n, 990 So. 2d 174, 180 (Miss. 2008)... 46 Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 2 F.3d 1397, 1403 n.7 (5th Cir. 1993)... 44 Newberry v. State, 85 So.3d 884, 888 (Miss. Ct. App. 2011)... 19 Peoples Bank of Biloxi v. McAdams, 171 So. 3d 505, 509-10 (Miss. 2015)... 22 Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1059 (Miss. 2012)... 22 Qualcomm Inc. v. American Wireless License Group, LLC, 980 So.2d 261, 274 (Miss. 2007).. 30 Reeves Royalty Co., Ltd. v. ANB Pump Truck Service, 513 So.2d 595, 599 (Miss. 1987)... 29 Robinson Property Group, L.P. v. Mitchell, 7 So. 3d 240, 245 (Miss. 2009)... 28, 33 Robinson Property Group, Ltd. Partnership v. McCalman, 51 So.3d 946, 948 (Miss. 2011)... 28 Rubenstein v. State, 941 So. 2d 735, 762 (Miss. 2006)... 19 Shumake v. Shumake, 147 So.3d 352, 355 n. 1 (Miss.2014)... 39 Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997)... 27, 28 Swan v. I.P., Inc., 613 So. 2d 846, 852 (Miss. 1993)... 26 Tellus Operating Group, LLC v. Texas Petroleum Inv. Co., 105 So.3d 274, 278 (Miss. 2012)... 19 Thompson v. Dung Thi Hoang Nguyen, 86 So.3d 232, 235 (Miss. 2012)... 31 iii

Travelers Cas. and Sur. Co. v. Mississippi Valley Silica Co., Inc., 2013 WL 6046058, at *1 (S.D. Miss. Nov. 14, 2013)... 44 United American Ins. Co. v. Merrill, 978 So.2d 613, 636 (Miss. 2007)... 36, 40 USF&G Ins. Co. of Miss. v. Walls, 911 So.2d 463, 466 (Miss. 2005)... 46 W. v. Plastifax, Inc., 505 So. 2d 1026, 1028 (Miss. 1987)... 21 Webster v. State, 152 So. 3d 1200, 1202 n.2 (Miss. Ct. App. 2014)... 39 Young v. Guild, 7 So. 3d 251, 259-60 (Miss. 2009)... 23 Statutes Miss. Code Ann. 11-1-60... 45 Miss. Code Ann. 11-7-13... 20 Miss. Code Ann. 15-1-49... 22 Miss. Code Ann. 91-7-233... 21 Rules MRCP 54(d)... 41 MRPC 1.5... 41 Other Sources Am. L. Prod. Liab. 3d 33:16... 26 Miss. Prac. Model Jury Instr. Civil 17:4 (2d ed.)... 24 iv

Statement of the Issues The issues as restated by the Appellee pursuant to MRAP 28(b): I. Dorothy Barnett Had Express Standing to File Suit. II. The Statute of Limitations Did Not Run on Howard s Claims. III. The Failure to Warn Instructions Were Proper. IV. The Verdict Was Based upon Sufficient Evidence. V. Punitive Damages and Attorney s Fees Were Properly Awarded. VI. The Jury Award Was Not Subject to Remittitur. Statement of the Case This case is about man who worked on High Street at a steel plant. Howard Barnett operated a crane and did other skilled labor while around other workers who were sandblasting. The sandblasters used bagged sand manufactured by Mississippi Valley Silica Company. Howard worked in clouds of the sandy dust, every day, and hours per day, for ten years. Scientists have determined that when the sand was fed through a sandblaster and hit hard surfaces, it was crushed into a fine dust that could be inhaled into the lungs. This respirable silica was colorless, odorless, and so small that it was invisible. Breathing it in could also scar the lungs to the point where they no longer worked resulting in the incurable, irreversible, and fatal disease of silicosis. After his years of exposure, Howard s doctors concluded he had silicosis. He filed suit against Valley for its deadly product, the sand which scarred Howard s lungs to the point they no longer worked. Valley had never warned that its product could kill. At trial, the jury heard from the company s former president, who admitted that it bore some responsibility for what had happened to people with silicosis. The jury also saw a handwritten letter from Valley s president where he admitted that the company knew or should have known it was exposing people to possibly fatal risks. Experts testified that Howard was certainly exposed to high levels of the deadly respirable silica in the decade he was around sandblasters on High Street. 1

At trial, and after hearing how Valley s product was so deadly, the jury found in the man s favor. The company appealed. Statement Regarding Oral Argument Despite the blizzard of claims raised by Valley, they are basic questions which are easily resolved by well-settled law. This case does not merit oral argument. Relevant Facts This case involves two separate threads of history knotted together. The first is the story of Howard Barnett, a family man who worked for a decade around sandblasters using Valley sand. The jury heard from his wife, daughter, doctors, and Howard himself how silicosis had caused him tremendous harm. The second thread is that Mississippi Valley Silica Company knew its product, silica sand used in sandblasting, could cause the incurable lung disease silicosis. Despite that knowledge admitted years later by the company s former president Valley sold bag after bag of sand for use in sandblasting. Eating Sand and Spitting up UFOs. Howard Barnett did not testify at his own trial instead, a videotape of his recorded testimony was played for the jury. 37:112. Howard passed away in 2011. 8:1060. Howard told the jury that he had lived in Magee for 52 years, and was married to his wife Dorothy for the same length of time. 37:113. He had spent thirty years of his life working in Jackson on High Street, at Mississippi Steel and Iron Company. 37:113-14. While Howard had worked on High Street since 1957, the core of his testimony was only about a ten year period. 37:114. From 60 to 70, Howard worked around sandblasting at the steel plant. 37:114. Howard was not a sandblaster, but held different jobs around the sandblasting operating a sawmill, and also operating an overhead crane. 37:120, 133. The plant was about a block long, and mostly open on the inside. 37:132. 2

During those ten years, the workplace was real dusty from the sandblasting. 37:114. Howard remembered during that decade he ate a lot of sand. 37:114. The sandblasting kicked up so much dust that a neighboring business was raising hell about it. 37:122. In response to these complaints, the steel outfit put up a 16-foot steel wall but it still did not slow down the massive amounts of dust spit out by the constant sandblasting. 37:122. The sand flying around so heavily did not only affect the business neighbors it also made it hard on Howard to work there. 37:133. Even operating the crane, that sand was rough up there 30-foot off the ground. 37:133. The sand was just that bad and that was even with Howard wearing a dust mask. 37:116-17. Mississippi Steel and Iron used two brands of sand for sandblasting bagged sand from Valley and another company named Southern Silica. 37:115. During his deposition, Howard easily identified both brands of sand. 37:115. Over the years, he had walked by the bags several times. 37:115. Howard did not recall a single warning on either of the types of bagged sand. 37:115-16. No one ever warned him about the dangers of breathing in the sand, either. 37:118. After retiring following his thirty years at the steel plant, Howard was having health issues. Howard s doctors told him he had the lung disease silicosis, from breathing the sand during his time working in Jackson. 37:121. His breathing had gotten worse, to the point where he was prescribed oxygen to breathe. 37:120-21. I make it pretty good in the daytime, Howard offered, but when I lay down at night, all hell breaks aloose. 37:122. I spit up UFOs, and I cough all night and don t get no rest. 37:122. When asked if he had done anything different if he had seen a warning about the dangers of breathing in that sand, Howard was blunt: I would have walked out. 37:116. The horror of air hunger. Dr. Steven Haber testified as an expert for the Barnett family. 38:182. The physician is a board-certified pulmonologist a lung expert. 38:184. He is also a 3

B-reader, the rarified class of doctors who are capable of reading chest x-rays for dust diseases of the lungs. 38:186-87. Dr. Haber informed the jury of what silicosis actually was. 38:189. The disease is disabling and often fatal, and caused by breathing in small pieces of dust that have crystal and silica, silica like in sand.... 38:189. When crushed, normal sand breaks up into tiny little particles which can then be small enough that it can get inhaled and... stuck in the lungs. 38:189-90. The crushed silica particles are a fraction of the size of the width of your hair, invisible to the naked eye. 38:190. The inhaled shards of sand cause scar tissue and the lungs become hardened like concrete. 38:190-91. While normally lungs are spongy, as it gets scarred it gets thicker and thicker, and these scars can be seen on x-rays. 38:230. Silicosis is both incurable and irreversible. 38:191. The pulmonologist explained that the normally inert sand was shattered into the invisible, breathable particles when used in sandblasting. 38:191. And so sandblasters and people working around sandblasting are at high risk for inhaling the respirable particles. 38:191. The core of the expert s testimony could be summed up in one word. When asked if silicosis and silica-related injuries played a major role in Mr. Barnett s illness and his death, Dr. Haber testified Absolutely. 38:261. There were four things Dr. Haber looked to before diagnosing silicosis. 38:193. There had to be exposure to the respirable silica; a latency or delay period before the disease developed; radiographic or x-ray findings that looked like silicosis; and no other reason for those abnormalities to be in the lungs. 38:193. The expert testified that Howard met all 4 requirements for a diagnosis of silicosis. First, he got a very detailed history of exposure from Howard. 38:194. Second, there was a latency period long enough for silicosis to develop, since the disease took 10, 20, 30 years or even 4

more after exposure to develop. 38:194-95. The expert x-ray reader also saw silicosis on Howard s x-rays after reviewing 31 chest x-rays... three CT scans, and other medical information. 38:200. Howard s exposure to respirable silica was massive, inhaling the deadly invisible particles for eight to nine hours a day, five days a week for a period of ten years, and in the words of the expert, that s a very, very long exposure. 38:202-03. Dr. Haber recounted how Howard described how he got sand in his nose and in his mouth, and could see visible clouds in the air, even told me... that there were neighboring businesses that complained because there was so much dust. 38:201. Any dose of respirable silica was dangerous, the physician explained and even low doses could result in silicosis. 38:250-51. Importantly, Dr. Haber explained that medical science understood that bystanders, and not just sandblasters, could contract silicosis. 38:255. [W]e do recognize that bystanders do get these diseases, the pulmonologist testified on cross-examination. 38:255. In terms of this exposure, the physician believed it blew past any standards required for diagnosis: it was both medically significant and more than enough to contract silicosis. 38:203. The impact on the steelworker was severe; on a scale where normal lung capacity was 100, Howard was a mere 36. 38:205. Dr. Haber also testified that this damaged lung capacity had a detrimental effect on Howard s heart, and that silicosis exacerbated his other heart problems. 38:213-14. The lung specialist also told the jury that the air hunger Howard suffered from because of his scarred lungs was probably the wors[t] way that someone can die. 38:232. It s like being strangled 24\7, Dr. Haber explained This is 24 hours a day, seven days a week that he is feeling suffocated. 38:232. 5

The silica was a certain cause of Howard s disease. Testifying as an expert for Howard at trial was his treating physician Dr. Julian Rose. 37:137. Dr. Rose is a pulmonologist, a specialist in the human lung and its diseases. 37:138. He had been seeing Howard for several years before his death. 37:140. All his testimony at trial was to a reasonable degree of medical certainty. 37:140. He had diagnosed Howard with silicosis in June of 2007. 7:1044, R.E. 01. Dr. Rose explained the horrific distress Howard suffered after the pulmonologist diagnosed him with silicosis. 37:142-43. Silicosis was painful, the doctor described, because it creates a hunger for air. 37:148. And it s terrible, Dr. Rose continued, not getting enough air, it s a terrible thing, which results in the patients responds with anxiety and discomfort... It s a very debilitating disease. 37:148. Dr. Rose also detailed that Howard was sick in other ways besides that lung disease he also had a history of heart problems and another lung affliction called COPD. 37:145. Patients suffering like Howard would have anxiety, irritability, trouble sleeping, loss of enjoyment of their life, and inability to help around the house. 37:149. There was also the frustration and expense of having to have oxygen tanks and related devices. 37:149-50. It ends up being just a rapid cascade of problems. 38:151. The lung specialist believed that Howard s years of exposure to sandblasting at Mississippi Steel and Iron caused the silicosis. 37:144-45. After reviewing the relevant information in the case, Dr. Rose testified I felt certain that these exposures would indicate he had silicosis. 38:157. In the end, and to a reasonable degree of medical probability, Howard s treating physician believed silicosis was a contributing factor to his death. 38:180. Howard worked around Valley sand. Howard s old work colleague Lee Burch also testified for him. 38:267. Lee worked from 1966 to 1988 at Mississippi Iron and Steel. 38:268. Speaking of Howard, Lee testified that we worked side by side for many years. 38:268. 6

For the years 1966 through the mid-seventies, Lee recalled that sandblasting went on every day. 38:269. Sometimes it would be going on eight hours per day. 38:269. He and Howard worked Pretty close to the sandblasting and like Howard testified, he did not know about the hazards from the respirable silica, either. 38:269-70. Because the plant was wide open on the inside, it could get very dusty when the wind was blowing. 38:286; 283. When asked what types of sand he worked around, Lee immediately said Let me see. One of them was Mississippi Valley, and noted that the company had brown bags with green writing. 38:270-71. After his recollection from memory, Lee was shown a picture of the Mississippi Valley bag and re-identified it as being on the worksite for Most of the time we were working out there. 38:270-71. On cross-examination, Lee zeroed in on details: the bag was 40 or 50 pounds, and the sand was a dark brown, and medium-sized and coarse. 38:284. Sometimes both brands of sand were on site, and sometimes it was just one. 38:280. Lee used what sand was available at the time Just different times because... before this one ran out, you know, you have another one come, and sometimes you have both of them at the same time. 38:281. Lee did not recall any type of warning at all on the bag. 38:271. Like Howard, Lee said he d have left if I had known something was going to hurt me. 38:271-72. Mississippi Valley Knew Its Product Could Kill. The jury heard the story of the company Mississippi Valley from its former president, Frank Bogran. 38:288. Frank Bogran went to work for MVSC in 1960 as a sales representative. 38:289-90. He became president in 1964, and held that position until 1976. 38:291. The company s former president admitted that Valley s bag was just as Lee Burch had described it brown with a green logo, the same through his entire time at the company. 38:290. The core of Mr. Bogran s testimony had to do with why he left the company and multiple concessions of the company s failures. 38:292-97. When asked if the reason he left the 7

Mississippi Valley in 1976 was because you made the decision that blasting could not be done safely with silica sand, the company s former president stated simply I agree. 38:292. Likewise, Mr. Bogran admitted it was clear as a window that the company bore some responsibility for the harm of workers suffering from silicosis. 38:292. The only thing that I can say is that we know that the sand is the cause of the silicosis, he admitted, and [f]rom that standpoint I say Mississippi Valley because it was selling sand, had some, obviously, some responsibility. 38:292. The testimony also focused on a letter that Mr. Bogran wrote to a lawyer in 1990. 38:292-93. In the handwritten letter, Valley s former president repeated that he was president of the company until 1976. R.E. 2 (from exhibit P16 in Clerk s Papers). Mr. Bogran admitted in the letter that During this period of time all of us in the industry were aware of the health hazards inherent in the sandblasting industry. R.E. 2. In the carefully written letter, Valley s former chief executive also conceded that Any responsible executive in this industry would have known should have known that many European countries had banned the use of silica sand as early as 1949. 38:293, R.E. 2. The letter concluded by Mr. Bogran admitting that Finally, in 1976 I was able to divorce myself completely from the sand business and devote my energies toward the use of mineral, low-free silica, abrasives. 38:293, R.E. 2. In his testimony, Mr. Bogran tried to back off on when he learned of the dangers of silica, but his handwritten letter was admitted into evidence. 38:297-98. Reprehensible : Valley never warned of the dangers of its product. A second doctor named Rose, Dr. Vernon Rose, also provided expert testimony for Howard. 38:298. The expert had a background in civil engineering and a doctorate in public health. 38:298-99. Dr. Rose is a certified industrial hygienist, a field that involves the recognition, evaluation and control of hazards in the workplace or arising from the workplace. 38:299. The field of scientific study is 8

primarily concerned with chronic health hazards like lead poisoning, silicosis, poisoning from Benzene and things like that.... 38:299. Dr. Rose is also a certified safety professional. 28:299. Dr. Rose is well-versed in the science, through teaching for 20 years at UAB and having worked at the CDC and OSHA. 39:302-03. While with the National Institute for Occupational Safety and Health, the expert helped develop a recommended standard for silica exposure whether sandblasting or any type of use of silica. 39:303-04. The expert explained that sand might be harmless while sitting still, but when it hits something hard like steel, the sand particles, the large ones, shatter into very small pieces some of which you cannot see with the naked eye.... 39:301. The sand is so small that it s smaller than a human hair in diameter, and Dr. Rose detailed how that could get into your lungs when it s breathed in gets into the lungs and it s deposited in the deepest part of the lungs and part of it stays there when it s inhaled. 39:301. It was this way that the formerly inert particles transformed into something deadly, and why the engineer agreed that respirable silica was a silent killer. 3:310. Respirable silica was essentially invisible, tasteless, and odorless. 39:310-11. The fact that respirable silica was invisible to human perception was exactly why manufacturers needed to warn the public about its dangers. 39:311. Dr. Rose also explained how each dose of silica increased the danger of harm. 39:311. The dose response nature of the toxin mean that the more of the respirable silica you breathe in and take into your body, the more likely you are to develop a disease. 39:311. In this way, breathing in silica was like smoking cigarettes the more you inhale, the higher your risk. 39:311. Certainly, Dr. Rose testified, each dose of respirable silica increased the risk of silicosis, and they built up over time. 39:312. 9

Turning to the facts of Howard s exposure, Dr. Rose trusted that the exposure to respirable silica was very high, extremely high. 39:314. This was due in part to the years of day-long exposure, and the fact that both Howard and his work colleague Lee Burch both recalled seeing actual clouds of sand. 39:314. If the men saw such clouds visible dust then there was also a high concentration of invisible and deadly respirable silica. 39:314. Similarly, even though Howard was not sandblasting himself, the interior of the steel plant provided a definite avenue for him to have been exposed to respirable silica from sandblasting. 39:315. In examining the exposure level of Howard, Dr. Rose had turned to an analogous study of two Louisiana shipyards. 39:317. The study looked at two steel fabrication yards, like the one on High Street where Howard worked. 39:317. The study, by one Dr. Samimi, looked at bystander exposure to respirable silica. 39:317-18. Importantly, the Samimi research examined the exposure of crane operators the same occupation Howard held during his time of exposure. 39:318. Based up the scientific reasoning from this study, Dr. Rose testified that Howard was on the average over-exposed to the recommended levels of silica. 39:319-20. This overexposure put him at an increased risk of contracting silicosis. 39:320. The expert gave this opinion to a reasonable degree of medical certainty. 39:335. He likewise testified that the overexposure added to the overall dose response of respirable silica Howard received. 39:335. Dr. Rose also explained that Valley was in the best position to warn Howard or others about the risks of its product. 39:322. Indeed, Dr. Rose testified that by 1960 when Howard was working around its sand Valley should have known and been aware of the hazards of respirable silica. 39:322. By 1960, it was well known that sandblasting created a hazard of silicosis, and sandblasting had been known as a hazard for silicosis since the 1900s, 1910, 1920. 39:323. Regardless of the original date, certainly in 1960 it was out there that 10

respirable silica could cause silicosis. 39:336. The expert also explained that by 1960 it was Certainly known that silicosis and exposure to silica could be fatal, and was incurable. 39:323-24. Despite this common knowledge, Valley did not warn consumers, an omission Dr. Rose called reprehensible. 39:325. This failure to warn deprived people like Howard of the ability to know about the dangers they were facing in the workplace. 39:325. Valley simply should have warned that its product could cause silicosis and could be fatal. 39:335-36. When asked if there was any excuse for Mississippi Valley to have failed to warn about the dangers of its product, the expert said None at all, sir. 39:368. Howard s suffering through the eyes of his family. Howard s daughter Evelyn described some of the horrors her father suffered through. 39:373, 378. An only child her parents could not have other children she was close to her father. 39:375, 379. Her father had been a musical person and a talented craftsman, the family s rock, and a thinker. 39:380, 382. Yet by the time Katrina blew through Mississippi, he was so weak the family had to travel to Birmingham to get a generator to make sure he could have oxygen. 39:378-80. By the end, he was on constant oxygen. 39:380. The oxygen eased, but could not stop, the terrible hunger for air. 39:381. Evelyn described her father s dreadful condition: he couldn t find rest. He was just up all night long. He couldn t lay down. If he laid down it just seemed like everything was just backing up. It was just it was just terrible. 39:381. Evelyn had moved to Arkansas with her husband, a pastor. 39:374. Although she tried to make it home when Howard s end was near, snow in Arkansas slowed down her trip to see her father. 39:381. Her father died an hour before I got here. 39:381. 11

Like her daughter, Dorothy Barnett remembered her husband fondly, with him glowing in her memory as the most handsome man I ever saw in my life. 39: 384. Dorothy now 70 at the time of trial said that it was Love at first sight. 39:384. She was married to her selfdescribed soulmate for 53 years and 3 days. 39:385. Towards the end, the only man she had ever dated had it rough. 39:385, 387. There was a lot of nights he couldn t even go to bed. He would go to bed and he would start coughing. 39:387. Howard would cough and cough until big chunks of phlegm would come up what he had called the UFOs. 38:388. Dorothy said that he would have to get up, and go sit on the couch and then he would stay there most of the night. 38:388. But what sleep he got was sitting up straight on the cough, because he could not lay down without coughing. 38:388. I can still see that mucus just rolling out, Dorothy testified. 38:388. For the last 4 ½ years of his life, Howard was on oxygen. 39:388. This deteriorating physical situation meant that Dorothy had to help her husband go to the bathroom; bathe him; clean him; and shave him. 39:388. He couldn t exert himself in any way, she remembered, and after a while he just had the energy to sit on the couch and read his Bible. 39:388-89. He read that Bible... read it so much until the pages got so worn. That s all he could do, Dorothy said, just sit there and read his Bible. 39:389. And in the end, It was a horrible death. 39:389. Valley s experts try to blunt the death of Howard. Valley called a series of experts all of whom either fell far short of the necessary qualifications or made notable concessions about the horrific realities of silicosis. The witnesses were all medical no one testified that Howard was not exposed to Valley sand, or that it was never used at the steel plant on High Street. An industrial hygienist named Dr. Earl Gregory testified for Valley. 39:400. The company s expert also admitted that sandblasting was a regular occurrence from 1960 at least 12

until 1970 at Mississippi Steel and Iron. 39:432. The industrial hygienist also agreed that Howard worked adjacent to the sandblasting operations. 39:435. Critically, Dr. Gregory agreed that bystanders could be exposed to deadly respirable silica. 39:431. With close proximity and the right wind, the defense expert actually conceded that a bystander could be exposed to levels that exceed the PEL, meaning the permissible exposure level. 39:431. He also agreed that exposure over the limits for a working lifetime would put that person at an increased risk of developing a silicosis related disease. 39:437. Dr. Gregory was heavily cross-examined on the fact that he used a report about asbestos exposure, and not silicosis exposure. 39:442-43. The defense witness ultimately agreed that the two particulates were different in nature. 39:443. He also agreed that the exposures in the shipyard study relied upon by the plaintiff s expert Dr. Rose showed that exposure exceeded recommended limits. 40:452-53. Valley then looked to the efforts of radiologist Dr. David Derr. 40:467. Dr. Derr admitted on the stand that he had never testified on behalf of a plaintiff, only companies. 40:498. The defense witness also admitted he was not a lung specialist, and did not diagnose silicosis. 40:499-500. The jury also heard that the doctor was now working out of his house. 40:510. He did not see patients, and admitted even when he worked at the hospital he wouldn t see patients in the reading room where he looked at x-rays. 40:512. He had written articles with titles like Lord of the Pelvic Ring, and Don t Be Afraid of the Knee. 40:510. When confronted with the reality that there were four medically recognized steps to diagnose silicosis, the witness admitted that he did not follow them. 40:503. He did not look at the occupational history or latency. 40:503-04. Dr. Derr just looked at the x-ray. 40:504. He also admitted that he was not board certified in internal medicine. 40:506. Essentially, Dr. Derr 13

just considered himself an expert in reading x-rays and other images. 40:505. Nonetheless, even he agreed that silicosis was incurable. 40:513. Valley called another witness who like Dr. Derr simply did not seem to fit the situation. 40:585. Dr. William Frazier was at least a pulmonologist, but admitted that he was not a certified B-reader of x-rays, and had never physically examined Howard. 40:604, 603. Valley was paying the doctor $1,000.00 per hour to testify. 40:590. Nonetheless, Dr. Frazier also agreed that dose response meant that the higher the dose, the higher the exposure concentration the more likely you are to develop the disease. 40:594. The witness admitted that he had not always considered himself an expert in silicosis and that in fact just a few years prior he had actually testified that he was not an expert. 41:604. He did agree that he was not a consultant to any state or federal agency about silica, was not a certified B-reader, and had never done a study or performed any lab research about silicosis. 41:604. He had also never authored an article about the subject and never done a presentation about it. 41:605. Despite this scarcity of credentials, Valley s witness admitted that while he did not think Howard had silicosis, that ten years of exposure in the right circumstance could be enough to develop the disease. 41:598, 41:605. Valley s next expert had credentials just as shaky as those of Dr. Frazier. While cardiologist Dr. Malcolm Taylor had practiced medicine for many years, he admitted that he was not a pulmonologist, was not a B-reader, not an expert in lung disease, and has never diagnosed patients with silicosis. 41:615, 622, 627-29. In fact, Dr. Taylor had previously testified in a deposition that he did not have the specialized training to diagnose a person with silicosis. 41:629. The defense witness had never attended seminars on how to diagnose the deadly disease which was the actual subject of the trial and conceded that he did not have experience in making a primary diagnosis of silicosis. 41:630-31. When asked if he knew the different types 14

of silicosis or their latency periods, or what they look like in terms of x-rays, Dr. Taylor was bluntly honest: Well, no, I don t. 41:631. And then: I would have to look that up. 41:632. The jury also heard from Dr. Charles Pruitt, who had been one of Howard s treating physicians. 40:557. Dr. Pruitt agreed that the symptoms suffered by Howard at the end of his life were consistent with silicosis. Relevant Procedural History Amending the Complaint. Howard passed away before trial, and his counsel filed a pleading with the trial court asking to re-style and amend the Complaint to add in Dorothy, his wife, as the surviving plaintiff. 8:1060. At a hearing, the defendants did not oppose the amendment, and only offered suggestions to correct the proposed amended complaint. Supp. 1, tab 1, at 11-12. The trial court acknowledged the agreement, and said All right. So you can submit an agreed order with respect to that.... Supp. 1, tab 1, at 12. The trial court then entered an order granting the amendment. 13:1849. Jury Instructions. With one exception, counsel for Howard and counsel for Valley completely agreed on the jury instructions given to the jury. 41:666. 1 Counsel for Howard sought a jury instruction on the duty to warn Valley owed to bystanders. 33:4812. Proposed instruction P16 was titled Non-Delegable Duty to Warn, and read in full: Mississippi law imposes upon the manufacturer of a product the duty to warn anyone who may be reasonably expected to be in the vicinity of the product s probable use and to be endangered by it if defective. The manufacturer s duty to warn under Mississippi law is non-delegable. Thus, the manufacturer s warning must be reasonably calculated to reach such person and the presence of an intermediary party will not by itself relieve the manufacturer of its duty. 33:4812, R.E. 3. The instruction was supported by a citation to a Mississippi Supreme Court case and two Fifth Circuit cases. 33:4812, R.E. 3. 1 There were originally two differences. See 41:666 (counsel for Valley informs the trial court that we were able to work everything out except for two instructions ). During the jury instruction conference, counsel for Howard withdrew the second disputed instruction because it was duplicative. 41:671. 15

Valley objected to the instruction on the basis that we believe that Mississippi law is unsettled as to whether any type of duty to warn exists as to bystanders and on that basis we object to this instruction. 41:671. Counsel for Howard argued that there were multiple cases supporting the instruction. 41:669-70. Ultimately, the instruction was given unchanged to the jury. See 41:693. The Verdict. After several days of testimony and several hundred pages of exhibits, the jury tendered its verdict. The trial court read out the jury s decision. 41:741-42, R.E. 4-5. The jury determined by a preponderance of the evidence that Howard Barnett s lung condition was caused in substantial part by silicosis or silica-related disease. 41:741, R.E. 4. The jury also agreed that the plaintiffs have proved by a preponderance of the evidence Howard Barnett had substantial exposure to respirable silica from sand supplied by Mississippi Valley Silica. 41:742, R.E. 5. In regards to Valley s lack of warning, the jury ruled that Howard and Dorothy proved by a preponderance of the evidence that a failure to warn on behalf of Mississippi Valley Silica was a proximate cause of Howard Barnett s lung condition and death. 41:742, R.E. 5. The jury determined his economic damages were $165,615.73; his noneconomic damages were $1,034,384.27;and that Dorothy had suffered a loss of consortium for $500,000. 41:742, R.E. 5. The total was $1,700,000. 41:742, R.E. 5. Despite these findings, the jury declined to agree that silicosis or silica-related disease was a substantial contributing cause of Howard s death. 41:741, R.E. 4. The jury also carefully weighed who was responsible for Howard s injuries, and determined that Valley was responsible for 35%; the other sandmaker, Southern Silica, was responsible for 35%; and that Howard s employer, Mississippi Steel and Iron, held 30% of the liability for his injuries. 41:742, R.E. 5. 16

Punitive Damages. After the jury found for Howard, the trial court examined whether a punitives phase was proper. 41:743. Counsel for Howard argued that the letter handwritten by former Valley president Frank Bogran where he repeatedly admitted to knowing about the dangers of silica warranted punitive damages. 41:743. In return, Valley essentially plead that it was bankrupt, and so the purposes of punitive damages would not be served.... 41:746. In response, counsel for Howard noted that a 2012 Supreme Court decision allowed a case to proceed to punitives even when the net worth of a company was zero, and that other trial courts had allowed juries to consider punitive damages against the same defendant. 41:745. The trial court agreed to allow the jury consider punitive damages. 42:751. Neither side called witnesses. 41:750. Counsel for Howard argued to the jury that the Valley president s 1990 letter showed that the company was grossly negligent, since he admitted that it was reasonable to know for decades before Howard s exposure that the product caused silicosis. 42:753. The jury was also shown a second letter from Mr. Bogran, dated 1994. 42:753, 755; R.E. 6 (exhibit P26 in clerk s papers). That letter was like a CV or a pitch to be hired as an expert, and closed with four striking sentences: I do not apologize for my strong opinion against the use of silica sand, it began. R.E. 6. I believe that it should be banned for unconfined sandblasting... as it has been in the rest of the industrialized world since 1950. R.E. 6 (ellipsis in original). Valley s former president then wrote All of us in the industry have known, or should have known, the silicosis danger present since the early 70 s. R.E. 6. I was part of that problem, the letter continued, for which I am not proud, but I have spent the last 18 years trying to convince users to switch to alternative abrasives. R.E. 6. The jury returned a punitive damages verdict, and the trial court reduced the total jury verdict to a Final Judgment. 33:4870-71, R.E. 7-8. 17

Summary of the Argument There are six core reasons why the jury s verdict in this case must be affirmed. First, the wrongful death statute expressly grants standing to Dorothy to file suit for her deceased s husbands claims, and therefore any verdict resulting from that suit is likewise authorized. Second, Howard s suit was timely commenced within three years of his diagnosis with silicosis, and so the statute of limitations had not run. Third, the failure to warn instructions in this case were proper and based upon longstanding Mississippi law. Fourth, the verdict was based upon sufficient evidence, including uncontested eyewitness observations, expert testimony, and damning admissions from Valley s own former president. Likewise, punitive damages and attorney s fees were properly awarded. Fifth, the jury heard Valley s former president s admission that the company knew or should have known its product could cause a fatal and irreversible disease but still never warned of the dangers. Last, the jury award should be maintained without remittitur, because even if Valley had a negative net worth, the purpose of punitive damages are still served, and Supreme Court precedent expressly allows punitive damages even in those cases. Standards of Review Each section will contain the applicable standard of review. Argument I. Dorothy Barnett Had Express Standing to File Suit. Because the wife of Howard, Dorothy Barnett, had complete standing to file suit on his behalf, and recover for damages suffered by him, the jury verdict must be affirmed. The Wrongful Death statute expressly authorizes a widow to proceed with a wrongful death lawsuit 18

without opening an estate, and the one suit rule requires all claims related to Howard s life and death to be brought in case. Because Dorothy followed that precedent, the verdict must be upheld. Questions of law, such as statutory interpretation, are subject to a de novo standard of review. Tellus Operating Group, LLC v. Texas Petroleum Inv. Co., 105 So.3d 274, 278 (Miss. 2012). A. Valley Agreed to Dorothy s Substitution and Is Barred from Now Objecting. Because it agreed to Dorothy s substitution as a successor to Howard, and to her amended complaint, Valley is now barred from contesting it on appeal. See InTown Lessee Associates, LLC v. Howard, 67 So.3d 711, 719 (Miss. 2011) (internal quotations and citations omitted) ( Our longstanding case law is clear that the failure to make a contemporaneous objection to the evidence waives the issue on appeal ); Newberry v. State, 85 So.3d 884, 888 (Miss. Ct. App. 2011) ( failure to object is a procedural bar to our consideration of this issue on appeal ). For If no contemporaneous objection is made, the trial court cannot be found in error. Rubenstein v. State, 941 So. 2d 735, 762 (Miss. 2006). After Howard died, none of the defendants opposed amended and re-styling the complaint to add Dorothy as the plaintiff, and indeed only offered suggestions to correct the proposed amended complaint. Supp. 1, tab 1, at 11-12. The trial court acknowledged the agreement amongst the parties, and said All right. So you can submit an agreed order with respect to that.... Supp. 1, tab 1, at 12. The trial court then entered an order granting the amendment. 13:1849. Nonetheless, on appeal Valley complains that an estate was not substituted within 90 days of death, and that this somehow dooms the case. See Principal Brief, at 9. The company never made this argument in the trial court, and certainly never raised the argument that 19

substituting Dorothy instead of the unnecessary step of opening an estate warranted dismissal. In accord with InTown, Newberry, and Rubenstein, this argument must be denied as procedurally barred. B. The One Suit Rule Merges All Actions Into One. Even if the Court does proceed to review the argument, the law is clear that Dorothy had standing to pursue Howard s claims as well as hers. Mississippi statutes and precedent agree that in a wrongful death case all claims must be merged into one suit. Because Dorothy is authorized under State law to file a wrongful death lawsuit, all the claims were properly joined together. Any verdict resulting from that single suit is proper. As Howard s widow, Dorothy is expressly named in our Wrongful Death statute as having standing to pursue a suit on his behalf. See Miss. Code Ann. 11-7-13 ( The action for such damages may be brought... by widow for the death of her husband ). This explicit statutory grant of standing does not require the opening of an estate. See Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 156 (Miss. 2011) ( The decedent s widow is one of the listed relatives in the wrongful-death statute who may bring a wrongful-death action, and if a person is indeed the wife of the deceased, then she would qualify as his widow, and she would have had standing to file this action as a listed relative under the express terms of the wrongful-death statute ). Since 2004, Mississippi has had a one suit rule regarding wrongful death litigation. See Long v. McKinney, 897 So. 2d 160, 174 (Miss. 2004). This requires that in wrongful death litigation, all claims shall be joined in one suit. Id. Accordingly, a wrongful death claim encompasses any other claims that could be made. See Burley v. Douglas, 26 So.3d 1013, 1019 n. 6 (Miss.2009) ( [w]hen the same wrongful conduct causes both personal injury and death, at the instant of death, the recovery for the personal injury is embraced by the one suit for 20

wrongful death and is not actionable by the estate under the survival statute ) (internal quotation and citation omitted). In this case, Dorothy sought not only wrongful death claim for the loss of her husband, but also her loss of consortium and survival damages for the pain and suffering Howard endured in his lifetime. The loss of consortium claim belonged to Dorothy exclusively, since the Court has held the right to loss of consortium to be a separate and independent cause of action. W. v. Plastifax, Inc., 505 So. 2d 1026, 1028 (Miss. 1987). Survival damages are allowed under statute and are normally brought by an estate. Miss. Code Ann. 91-7-233. Yet the Court requires one suit, and so the Legislature s explicit grant of standing to Dorothy without the need for an estate consumes any other types of claims. Just as Dorothy could not bring her loss of consortium claim in a separate suit in a different courtroom, she was required to include the survival damages in the wrongful death lawsuit. While the jury did not find for Dorothy on the wrongful death claim, it did agree with her on the loss of consortium and survival damages. This verdict is authorized just as the one suit was authorized. Valley tries to create a completely new level of complexity in our law one which does not exist and does not need to exist. It is utterly undisputed that Dorothy, as Howard s widow, had full authority to file and pursue a wrongful death suit on his behalf. Therefore any verdict obtained as a result of this authorized one suit is proper and must be affirmed. II. The Statute of Limitations Did Not Run on Howard s Claims. Because Howard filed suit within 3 years of his silicosis diagnosis, the statute of limitations did not run on his claims. In cases involving latent injury such as silicosis, the claim only arises once the Plaintiff is diagnosed with the disease. See Angles v. Koppers, 42 So.3d 1, 5 (Miss. 2010) (plaintiff s cause of action accrued at the latest in 2001, the date she was last diagnosed with an injury or 21

disease ); Lincoln Electric Co. v. McLemore, 54 So.3d 833, 837 (Miss. 2011); Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1059 (Miss. 2012). A person has three years from that date of discovery in cases with latent injury to file suit. See Miss. Code Ann. 15-1-49(2). The facts are undisputed. Howard filed his initial Complaint on June 10, 2010. 1:35. Therefore the Complaint reached back until June of 2007. His treating physician, Dr. Julian Rose, provided sworn testimony that he was unable to and therefore never diagnosed Howard Barnett with Silicosis prior to the 28th day of June, 2007. 7:1044. This exact date is when Howard s statute of limitation began running, and he met it by some 18 days. Even though the statute of limitations issues is reviewed de novo, the law from Angles and Lincoln Electric is well settled. Valley ignores this established precedent to try to impute to Howard that he somehow should have known that he had a complex and subtle disease one which Valley s experts at trial disputed that he even had. Howard could have only learned he had silicosis from Dr. Julian Rose, and he learned it the moment the treating physician diagnosed him on June 28, 2007. There is simply no dispute that this the date which triggered the statute. If there was a question of fact about when the discovery of the injury happened, Valley should have submitted it to the factfinder for resolution, since the question of whether the suit is barred by the statute of limitations is a question of fact for the jury.... Peoples Bank of Biloxi v. McAdams, 171 So. 3d 505, 509-10 (Miss. 2015) (internal citation and quotation omitted). However, Valley chose to not submit this question to the jury. If it had wanted to combat the diagnosis of Dr. Julian Rose, it should have requested the jury to make a different determination. Under the facts of this case, Howard was diagnosed by his treating physician with silicosis in 2007. He timely filed suit less than 3 years later. Even though Valley argued Howard did not even have the disease, its argument that the suit was untimely filed must be denied, and the verdict must be affirmed. 22

III. The Failure to Warn Instructions Were Proper. For two reasons the jury instructions on Valley s failure to warn were correct. First, as the transcript of the trial makes clear, the jury was actually given the very instruction of which Valley claims it was deprived. Second, the failure to warn instruction regarding bystanders has been the explicit law in Mississippi since at least 1986. The jury was properly instructed in this case. There is an extremely deferential standard of review regarding jury instructions. On appellate review of the trial court s grant or denial of a proposed jury instruction, our primary concern is that the jury was fairly instructed and that each party s proof-grounded theory of the case was placed before it. Young v. Guild, 7 So. 3d 251, 259-60 (Miss. 2009) (internal quotation omitted). We ask whether the instruction at issue contained a correct statement of law and was warranted by the evidence. Id. Further, the Court only reverses if the granted instructions, taken as a whole, do not fairly present the applicable law. Id. In other words, if the instructions that actually were given to the jury are adequate, a party may not complain of a refused instruction on appeal. Id. (internal quotation omitted). If there are errors in specific instructions that were given, the Court will still affirm so long as the instructions, taken as a whole fairly although not perfectly announce the applicable primary rules of law. Id. at 260-61 (internal quotations omitted). Valley blends two arguments in its brief, apparently arguing that it was denied a jury instruction that it wanted, and then that one of the failure to warn instructions given to the jury was improper. Both will be taken in turn. A. Valley Received the Exact Jury Instruction It Now Says Was Denied. Because Valley actually was granted a jury instruction detailing exactly what it now contends it was deprived, the instructions were proper. 23

It is well-settled that a trial court is not required to give instructions which are covered by other instructions, although the language may differ. Jones v. State, 797 So. 2d 922, 926 (Miss. 2001). For a court need not grant duplicative instructions simply to satisfy each parties desire for emphasis. Gifford v. Four-County Elec. Power Ass n, 615 So. 2d 1166, 1173 (Miss. 1992). In its brief, Valley quotes at length from a model jury instruction, arguing that it should have received a similar one. See Principal Brief at 14. There are two striking problems with this statement. First, Valley is barred from now making this argument, because it never objected on this point in the trial court indeed, Valley agreed to all the instructions except for one. This failure to contemporaneously object at the trial court means that the issue is waived. See InTown 67 So.3d at 719 ( Our longstanding case law is clear that the failure to make a contemporaneous objection to the evidence waives the issue on appeal ). Even if the issue were not waived, the jury was actually given the exact same instruction Valley has requested on appeal, even though the company is now arguing the trial court deprived Mississippi Valley of the knew or should have known language of a correct instruction.... See Principal Brief at 14. Valley s core argument was that it should have received an instruction fashioned after Model Jury Instruction 17:4. 2 The company received that exact instruction. The model instruction, in relevant part to what Valley complains of on appeal: 3. That at the time the [name of product] left the control of [[name of manufacturer] /[name of designer]/[name of seller]], [he/she] knew, or in light of reasonably available knowledge should have known about the danger, if any, that caused the damage for which the plaintiff now seeks recovery... Miss. Prac. Model Jury Instr. Civil 17:4 (2d ed.) (emphasis added). 2 In its brief, Valley cites to Model Instruction 17:5, but quotes from 17:4, the Failure to Warn instruction. The latter is the correct citation. 24

The given instruction: (3) that at the time the above products left the control of Mississippi Valley Silica Co., Inc., the manufacturers knew, or in light of reasonably available knowledge should have known about the danger, if any, that caused the damages from which the plaintiff now seeks recovery... 41:692 (emphasis added). The instruction which Valley says it was deprived spans three pages of the trial s transcript, replicating exactly where it was read from the trial court to the jury. 41:691-93. The given instruction tracks the Model Instruction in every meaningful way including all of the six subsections of Model Instruction 17:4. Most importantly, it includes the knew or should have known language of which Valley says it was deprived. The language of the Model Instruction in that section was given by the trial court to the word: that the company knew, or in light of reasonably available knowledge should have known about the danger.... Because Valley received the exact instruction of which it now appeals, there is no merit to the argument. These types of meaningless appeals are frowned upon by the Court. See Foster v. Foster, 788 So.2d 779, 784 (Miss. Ct. App. 2000) (sanctions granted where a party had argued she was due a hearing when in fact she had already been granted one, and that she should have custody of [the minor] when she, in fact, did actually have custody ). To the extent Valley claims that it should have received a different version to the instruction it actually received, trial courts are not required to grant duplicative instructions. The instruction given to the jury was proof-grounded, based upon Model Instruction 17:4 and other legal authority, and adequately instructed the jury. B. The Bystander Warning Instruction Is Grounded in Decades of Law. The failure to warn instruction the jury received about Valley s non-delegable duty to warn was based upon years of well-settled law, and correctly informed the factfinder of the burden in the case. As a result, there was no error in the trial. 25

For almost thirty years, our Supreme Court has recognized that tort law imposes the duty on a manufacturer to safeguard not just its consumers from hazardous products, but also bystanders who might be hurt. Coca Cola Bottling Co., Inc. of Vicksburg v. Reeves by Reeves, 486 So. 2d 374, 378 (Miss. 1986). The products liability law extends in favor of anyone who may reasonably be expected to be in the vicinity of the product's probable use and to be endangered by it if it is defective. Id. This clear ruling was made even more explicit in the landmark products liability case of Swan v. I.P., Inc., 613 So. 2d 846, 852 (Miss. 1993). The Court started from the basic point that [l]ack of an adequate warning is a defect which makes a product unreasonably dangerous for strict liability purposes. Id. It then reiterated that [t]his Court has extended this duty to bystanders, and that the duty exists in favor of anyone who may reasonably be expected to be in the vicinity of the product s probable use and to be endangered by it if it is defective. Id. (quoting Reeves, 486 So.2d at 378). This duty of a manufacturer to have an adequate warning that extends to bystanders is the standard, not the exception. It is hornbook law that depending on the circumstances, instructions and warnings may be required to be given not only to purchasers, users and consumers, but also to others whom a reasonable seller should know will be in a position to reduce or avoid the risk of harm. Am. L. Prod. Liab. 3d 33:16. As that treatise further explains, [e]ven though the duty to warn may be referred to as delegable under certain circumstances, a manufacturer is never completely relieved of its duty to warn. Id. In accord with that longstanding law, the jury in this case was given an instruction titled Non-Delegable Duty to Warn, which read in full: Mississippi law imposes upon the manufacturer of a product the duty to warn anyone who may be reasonably expected to be in the vicinity of the product s probable use and to be endangered by it if defective. The manufacturer s duty to warn under Mississippi law is non-delegable. Thus, the manufacturer s warning 26

must be reasonably calculated to reach such person and the presence of an intermediary party will not by itself relieve the manufacturer of its duty. R.E. 3. This instruction precisely tracked the longstanding Mississippi law of Reeves and Swan. See also Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 514-15 (5th Cir. 1984) (overruled on other grounds) (approving a jury instruction that included a manufacturer s duty to bystanders). Taken as a whole, the instructions in this case fairly instructed the jury. The jury instructions were based on correct statements of Mississippi law and evidence in the Record. The verdict must be affirmed. IV. The Verdict Was Based upon Sufficient Evidence. Because Howard proved his case by a preponderance of the evidence, the verdict must be affirmed. The jury heard unopposed eyewitness testimony from Howard and his co-worker Lee Burch that the sand used at his workplace was from Valley. This concrete identification satisfies all requirements under Mississippi law. The jury further heard the testimony of three qualified experts that Howard was gruesomely over-exposed to deadly respirable silica. During the trial there were damning admissions from Valley s former president, Frank Bogran, and the jury was given his startling hand-written letter admitting the company knew or should have known it was exposing people to deadly silica. The verdict is supported by the evidence. The standard of review for a jury verdict is extremely deferential, as a jury resolved the facts and other contested issues. The standard of review for jury verdicts in this state is well established. Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997). Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light 27

most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found. Id. Our standard for review is de novo in passing on questions of law. Id. It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Robinson Property Group, Ltd. Partnership v. McCalman, 51 So.3d 946, 948 (Miss. 2011) (internal quotations and citations omitted). In this case, Valley seeks to have this Court act as a super-jury, and to re-weigh the extensive testimony and documents reviewed by the factfinders of Hinds County. That is not the role of our appellate courts, as It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Robinson, 51 So.3d at 948. This case is not one of those extreme situations. A. There Was Uncontradicted Evidence that Howard Was Exposed to Valley s Products. Because the uncontradicted evidence in this case established that Howard was exposed to Valley products for a decade, the jury s verdict must be affirmed. We have repeatedly held that the jury is responsible for judging the credibility of witnesses and the weight that should be attached to their testimony, the Supreme Court held, in a case involving apportionment in a one-car accident where the driver may have been under the influence. Jackson v. Daley, 739 So.2d 1031, 1039 (Miss. 1999). Indeed, a jury verdict will stand unless the verdict illustrates bias, passion, and prejudice. Id. The jury was presented with two eyewitnesses in this case who conclusively identified that Valley s product was used at the steel yard and that Howard was exposed to it. First, the jury heard from Howard that the steel plant used two brands of sand in sandblasting. Howard 28

identified one company as Valley and the other as Southern Silica. Howard testified that he had walked past the bags multiple times over the years. Howard s identification of Valley sand was completely corroborated by another worker at the same steel plant. Lee Burch stated that there were also multiple types of sand in use, but remembered that One of them was Mississippi Valley. Mr. Burch identified that Valley s bags were brown with green writing. He also explained that while there was not always Valley sand onsite, it would rotate in and out with another brand of sand. Mr. Burch s identification of Valley s unique color signatures on their bag was further corroborated by Valley s own former president, Frank Bogran. This product identification hurdles the standard, with two different witnesses independently identifying the same product. Critically, Valley did not call even one witness who disputed the men s testimony. Valley did not put on the testimony of another former sandblaster to say that the steel plant did not use its sand, and did not produce any information at all to contradict that the men were wrong in their accurate identification. As a result of Valley s failure to impeach the testimony of the men or muster a contrary witness, the jury was bound to accept the uncontradicted testimony of Howard and Mr. Burch as completely true. This is because [u]ndisputed testimony, which is not so unreasonable as to be unbelievable, must be taken as truth. Reeves Royalty Co., Ltd. v. ANB Pump Truck Service, 513 So.2d 595, 599 (Miss. 1987). For in the absence of contradictory evidence, courts are bound to accept the only credible evidence offered in a proceeding and apply the correct law. MSU v. PETA, 992 So.2d 595, 607 (Miss. 2008). This case is far different from a recent decision also involving silica exposure, where the Court emphasized [i]n any tort case, identifying and proving the source of the harm that proximately caused a plaintiff's injuries is essential. Miss. Valley Silica Co., Inc. v. Reeves, 141 29

So. 3d 377, 382 (Miss. 2014). Just as in this case, the plaintiff s burden at trial was to prove that some of the sand that injured [him] came from Valley. Id. Yet that plaintiff failed, because [t]he evidence adduced to show that Valley had supplied sand to [the plaintiff s employer] was, at best, sparse. Id. The plaintiff in Reeves clearly had difficulty remembering the brand of sand that was used by his employer, and specifically remembered using Valley sand on only one occasion, during a flood in Jackson in the 1970s. Id. at 382-83. Another fact witness also could not conclusively identify the sand used by the railroad. Id. The Court ultimately held that this just simply was not enough to meet the burden. Id. at 383. In many ways this case is the opposite of Reeves. Unlike that case, here the plaintiff was well acquainted with the fact that Valley sand was used at the steel plant where he worked for so many years. Howard not only conclusively identified Valley s bagged sand, he also identified the other sand used at Mississippi Iron and Steel. He also recalled walking past the bags of sand several times over the years it was used. That testimony was exactly corroborated by Mr. Burch, who unlike the witness in Reeves, knew Valley s sand well, identifying it by brand, bag, color of logo, and even the color and coarse nature of the sand. This case is different than Reeves, and the jury was bound to accept the uncontradicted testimony of the two men. Further showing the thoughtful approach of the jury, it did not place 100% of liability on Valley but split liability among the two sand manufactures and Howard s employer. The jury verdict must be affirmed. B. The Jury Heard Proof that Howard Was Certainly Exposed To Respirable Silica in Deadly Levels. The expert testimony in this case proved to a reasonable medical certainty that Howard was exposed indeed, overexposed to Valley s product. The jury s verdict should be affirmed. It is well-settled that causation is question of fact to be determined by the jury. Qualcomm Inc. v. American Wireless License Group, LLC, 980 So.2d 261, 274 (Miss. 2007); 30

Thompson v. Dung Thi Hoang Nguyen, 86 So.3d 232, 235 (Miss. 2012) ( Because causation is a question of fact for the jury, we affirm ). In Thompson, a defendant admitted liability, and the jury s only task was to determine what, if any, damage was proximately caused by [her] negligence. Id. at 240. The jury only gave the plaintiff four percent of [her] requested damages and the exact amount of her physical therapy bills, $9,131, and rejected the claim for the other 96% of damages. Id. at 238. At the end of the day, while the verdict may have been harsh, the Supreme Court ruled that [a] plaintiff has the burden of proof, and must offer evidence that persuades the jury... The jury is not required to believe or trust the evidence submitted by the plaintiff, and is free to accept all, part, or none of the plaintiff's evidence. Id. at 236-37. We have repeatedly held that the jury is responsible for judging the credibility of witnesses and the weight that should be attached to their testimony, the Mississippi Supreme Court held, in a case involving apportionment in a one-car accident where the driver may have been under the influence. Jackson v. Daley, 739 So.2d 1031, 1039 (Miss. 1999). Indeed, a jury verdict will stand unless the verdict illustrates bias, passion, and prejudice. Id. The jury heard extensive evidence that Howard was exposed to heavy levels of respirable silica in his decade of working around Valley s product. Howard testified that he worked around daily sandblasting at Mississippi Steel and Iron from 1960 to 1970. He told the jury that it was real dusty from the sandblasting, and that he ate a lot of sand. There was so much sandblasting going on that a neighbor actually complained about it, raising hell, and eventually compelling the company to put up a 16 foot wall to try and shield others on High Street from the dust. Howard remembered that sand was rough up there even when he operated a crane. Howard s co-worker Lee Burch remembered that sandblasting would go on in that time period an entire shift Sometimes it would be going on eight hours per day. Because the 31

inside of the plant was open, sandblasters in one area could still expose others down the way to respirable silica. Even Valley s expert Dr. Gregory testified that sandblasting was a regular occurrence from 1960 at least until 1970 at the steel yard. Lung specialist Dr. Haber testified that based on this estimated exposure levels, multiple hours a day for a decade, that it was a very, very long exposure. The expert testified that medical science recognized that bystanders to sandblasting could get silicosis from this exposure. Dr. Haber believed to a reasonable degree of medical certainty that Howard was exposed to a medically significant amount of respirable silica enough to contract silicosis. Dr. Haber s testimony was complemented by that of industrial hygienist Dr. Rose, who testified that Howard s exposure to respirable silica was very high, extremely high. The decade long exposure was especially significant, as was that both Howard and Mr. Burch recalled seeing visible clouds of sandy dust. Dr. Rose explained that this meant there was a high concentration of invisible and deadly respirable silica. This was not mere conjecture by Dr. Rose, but based upon a silicosis study of two Louisiana shipyards, both of which were steel yards like the one where Howard worked, and examined the silica exposure of crane operators the same occupation shared by Howard. Based up the scientific reasoning from this study, Dr. Rose testified that Howard was on the average over-exposed to the recommended levels of silica. This overexposure put him at an increased risk of contracting silicosis. This case echoes a recent decision by the Supreme Court where it recognized that a bystander had proved causation by showing he worked in a dusty, silica-rich environment. See Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442, 451 (Miss. 2015). In that case, a man worked as a laborer using a jackhammer to tear up concrete. Id. There was testimony from an expert that there was a scientific study showing that workers in that situation were over-exposed 32

to respirable silica. Id. at 452. Importantly, there is no dispute that multiple exposures to respirable silica cause the type of harm the man claimed the lung disease of silicosis. Id. Like in Holmes, there was corroborated testimony that Howard s workplace was very dusty. The testimony far exceeds Holmes, because in that case, the actual silica content of the shattered concrete was uncertain. Id. at 451. In this case, it is undisputed that Valley s bagged sand was used at Howard s workplace. Just as in Holmes, there is a scientific study on point that supported the conclusion that Howard was overexposed to respirable silica. Importantly, the same expert in Howard s case, Dr. Vernon Rose, was the same expert whose theory of causation was approved by the Supreme Court in Holmes. Id. at 452. There was more than sufficient evidence for the jury to determine that Howard s exposure to Valley s product caused his injuries. The verdict must be affirmed. C. Valley Completely Failed to Warn Howard of Any Dangers. Because Valley utterly failed to warn of the fatal risks of respirable silica, and because it actually admitted this failure was unreasonable, and expert testimony detailed how this failure hurt Howard, the verdict must be upheld. The law in Mississippi is that a jury is to weigh expert testimony, and judging the expert s testimony and weight to be accorded thereto is the province of the jury. Fleming v. Floyd, 969 So.2d 868, 878 (Miss. 2007) (internal quotations and citations omitted). For the jury may consider the expert testimony for what they feel that it is worth, and may discard it entirely. Id. (internal quotations, citations, and alterations omitted). This Court, of course, is not the jury... The weight and credibility of the witnesses, primarily experts, was for the jury, who were free to accept or reject whatever part of their testimony they chose. Id. (internal quotations and citations omitted); Robinson, 51 So.3d at 950 n.5 (internal quotations and citations omitted) ( The credibility of a witness is a question of 33

fact for the jury to resolve ). In Robinson, the case was fully fleshed out at trial and the Court ruled it would not second guess the jury. Id. at 950. This issue presents a classic battle of qualified experts a battle that was decided by the jury, which believed and accepted the testimony of the plaintiffs expert... We will not usurp the jury s role, especially in light of the substantial circumstantial evidence contained within the case. Id. This case was also a battle of the experts, but it was not close. It is uncontested that there was no warning at all on Valley s product. If there had been, and if Valley had warned that its product could cause a fatal lung disease, Howard testified that he would have walked out of his job. Valley outright admitted it knew it should have warned of the danger. Valley s former president admitted in 1990 in a handwritten letter that he ran the company until 1976, and During this period of time all of us in the industry were aware of the health hazards inherent in the sandblasting industry. Through its former executive, Valley also conceded that Any responsible executive in this industry would have known should have known that many European countries had banned the use of silica sand as early as 1949. (emphasis added). Howard s expert, industrial hygienist Dr. Rose, explained that Valley was in the best position to warn about the risks of its product. Importantly, Dr. Rose testified that by 1960 when Howard was working around its sand Valley should have known and been aware of the hazards of respirable silica. This dovetails exactly with Valley s former president s admission that the company knew or should have known as well. Dr. Rose continued that by 1960, it was well known that sandblasting created a hazard of silicosis, and sandblasting had been known as a hazard for silicosis since the 1900s, 1910, 1920. By the time Howard worked on High Street, certainly in 1960 it was out there that respirable silica could cause silicosis. The expert termed Valley s failure to warn 34

reprehensible. This failure to warn deprived people like Howard of the ability to know about the dangers they were facing in the workplace, and the company simply should have warned that its product could cause silicosis and could be fatal. When asked if there was any excuse for Valley to have failed to warn about the dangers of its product, the expert said None at all, sir. Bizarrely, on appeal Valley claims that There is no proof in the record that Mississippi Valley knew of the dangers posed by silica exposure, including silicosis, during Barnett s 1960-1970 exposure period. Principal Brief, at 23. This utterly ignores one of the most damning pieces of evidence in the entire case: its own former president s handwritten admission that any responsible executive knew or should have known that silica exposure could be fatal. It also ignores that Dr. Rose testified that since the turn of the 20th century it was known that respirable silica could cause silicosis, and certainly by 1960 it was known. The jury in Hinds County heard ample evidence that Valley failed to warn, including damning admissions by its own former president, and there was expert testimony that this failure was reprehensible. The jury verdict was based on sufficient evidence and must be upheld. V. Punitive Damages and Attorney s Fees Were Properly Awarded. Because there was overwhelming evidence that Valley s conduct was reckless and in gross disregard of Howard s safety, the jury s award of punitive damages was warranted. Further, it is an almost universal rule that attorney s fees are justified once a jury has found that punitive damages should be imposed. Even if that were not true, Valley failed to include the order granting attorney s fees in the Record, which means the issue is beyond review by this Court. A. Punitive Damages Were Properly Awarded. Punitive damages were proper because of the grotesque conduct exhibited by Valley, which included the company admitting that its product could cause life-threatening injuries 35

through invisible and silent means. The Final Judgment against Valley included $500,000 for punitive damages. It was not an abuse of discretion for the trial court to allow the issue of punitive damages to go to the jury to determine if a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard. Bradfield v. Schwartz, 936 So.2d 931, 936 (Miss. 2006) (applying abuse of discretion standard to whether punitive damages consideration was proper). In order to warrant the recovery of punitive damages, there must enter into the injury some element of aggression or some coloring of insult, malice or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule. Id. (internal quotation and citation omitted). Once proceeding to that phase, Measurement of the amount is solely fettered to the jury s discretion. United American Ins. Co. v. Merrill, 978 So.2d 613, 636 (Miss. 2007) (internal quotations and citations omitted). There are then factors that should be considered to assess the amount, including what amount would punish the wrongdoer and deter it from future action, and whether the amount will serve as a deterrent for other wrongdoers. Id. While Valley protests the trial advancing to the punitive damages phase, the case law is clear that once compensatory damages have been determined, the circuit court should have automatically proceeded to the punitive damages phase of the trial, where the judge and jury could then focus on the issue of punitive damages. Bradfield, 936 So.2d at 939 (emphasis added). There was ample proof that the punitive phase was warranted. Through its former company president, Frank Bogran, Valley admitted during the course of trial that it had continued to sell silica to consumers and other companies for use in sandblasting and other applications despite its knowledge of the dangerous effects, and did not warn of the deadly 36

effects of silica inhalation. Valley also admitted that it knew or should have known that its product could cause harm to bystanders, and yet it still did not adequately warn. Indeed, the jury saw and heard the rarest of all evidence: actual admissions that Valley was actually liable for the harm it caused. The core piece of evidence counsel for Howard argued supported punitive damages was the 1990 letter by Mr. Bogran. In his bold all-caps handwriting, Valley s former president wove together a startling series of concessions: that all of us in the industry knew of the dangers of silica, and that Any responsible executive knew or should have known of the dangers of respirable silica, since it had been banned overseas for decades. Standing alone, this letter was sufficient to proceed to the punitive damages phase. Coupled with the other evidence and testimony from the trial, punitives were certainly warranted. Mr. Bogran had testified that the company bore liability for its actions: I say Mississippi Valley because it was selling sand had some, obviously some responsibility. He had even admitted he even left the company because he could no longer stomach selling the silica without letting people know that it could kill. When asked if the reason you left in 1976 was because you made a decision that blasting could not be done safely with silica sand, Mr. Bogran testified I agree. 37

Once the punitives phase began, the jury again considered the 1990 letter, and was given a new piece of evidence to examine a subsequent 1994 letter from Mr. Bogran that dug in even deeper on Valley s failures. All of us in the industry have known, or should have known, the silicosis danger present since the early 1970s, he wrote. Valley did not rebut Mr. Bogran s admissions or these two letters with any other letters or expert testimony. This was ample evidence to support a punitive damages verdict. Valley also mischaracterizes one sentence of an argument made at trial in order to soften the repeated concessions of its former president. On appeal, the company spends an entire page of its brief arguing that counsel for Howard supported the claim for punitive damages by pointing to other misconduct of which Valley was accused. See Principal Brief, at pages 30-31. First of all, since Valley did not make any objection to this argument at trial, this argument is waived. See InTown, 67 So.3d at 719 (failure to preserve error through a contemporaneous objection creates a procedural bar). Nor does the transcript bear out Valley s meager protest, as it is clear that counsel for Howard was simply rebutting the company s argument that it was punitives proof because it had an alleged net worth of zero. Both sides had been arguing over that point, with Valley pointing to a ruling by the Warren County Circuit Court about punitive damages, after which Howard s lawyer pointed out a recent Supreme Court decision gutting Valley s argument. See 41:744-45. And we ve also had another judgment against Mississippi Valley subsequent since Judge Patrick s ruling where we were allowed punitive damages down in Jones County against the same defendant, was the entirety of the statement by Howard s counsel which simply 38