OF JUDGMENT: 02/24/2015
COUNTY CIRCUIT COURT HON. LAMAR PICKARD
ATTORNEYS FOR APPELLANT: MICHAEL JAMES BENTLEY SIMON TURNER
BAILEY W. WAYNE DRINKWATER, JR. WALTER T. JOHNSON JOSEPH
GEORGE BALADI COREY DONALD HINSHAW JOHN BURLEY HOWELL, III
ATTORNEYS FOR APPELLEES: DAVID NEIL McCARTY ROBERT ALLEN
SMITH, JR. TIMOTHY W. PORTER PATRICK MALOUF JOHN TIMOTHY
On May 13, 2013, a former construction worker, Robert Lee
Rankin Sr., filed a complaint in Jefferson County Circuit
Court against American Optical Corporation (AO) alleging an
injury of "lung disease and silica related conditions
caused by exposure to respirable crystalline silica"
while using defective respirators manufactured by AO.
Following trial on February 17-24, 2015, the jury returned a
total verdict of $14 million in favor of
According to the verdict form, the jury found by a
preponderance of the evidence that (1) Rankin had a
"silica-induced lung condition;" (2) Rankin did not
know nor should he have known before May 13, 2010, that he
had the "lung injury" that he alleged in the
lawsuit; (3) Rankin used a respirator manufactured or sold by
AO "while working in harmful concentrations of
silica;" (4) there was a defect in the design of an AO
product that proximately caused Rankin's silica-induced
lung condition; and (5) there was a defect in the warning of
an AO product that proximately caused Rankin's
silica-induced lung condition.
The jury awarded $4 million in noneconomic damages and $10
million in economic damages. The jury assigned 45% of fault
to AO and 55% to "Other Named and Unnamed Defendants
and/or Parties." The trial court entered a total judgment
against AO of $6.3 million, reflecting the jury's
apportionment of fault. AO filed a motion to amend the
judgment and a motion for a judgment notwithstanding the
verdict (JNOV) or, alternatively, for a new trial. The trial
court granted AO's motion to amend the judgment in part
and amended the noneconomic damages award from $1.8 million
to $1 million to comply with the statutory cap on noneconomic
damages. However, the trial court denied AO's motion for
a JNOV or, alternatively, for a new trial.
AO appeals, raising the following seven issues, restated for
I. Whether Rankin's claims are barred by the three-year
statute of limitations.
II. Whether Rankin proved that the design of the AO
respirators proximately caused his injury and that there was
a feasible design alternative.
III. Whether AO is entitled to judgment as a matter of law on
Rankin's failure to warn claim.
IV. Whether Rankin proved that his use of an AO respirator
proximately caused his injuries.
V. Whether Rankin proved a reasonable basis for the
allegation that his alleged damages were caused by silica
VI. Whether AO was deprived of its right to a fair trial in
an impartial forum.
VII. Whether the $14 million verdict was against the
overwhelming weight of the evidence.
It is necessary for the Court to address only the first issue
AO manufactured and sold respiratory protection products,
including the model 1050 and 1010 respirators or masks, which
were introduced in 1976 and 1985 respectively. The 1050 and 1010
were single use, disposable respirators designed to protect
individuals against pneumoconiosis and fibrosis producing
dusts such as silica. Both AO respirators were marketed for
use in textile, mining, quarrying, grinding, and rock
crushing operations, but not in abrasive blasting operations.
Rankin worked in the construction business for various
employers and independently from approximately 1965 though
2001. Rankin testified that he jackhammered and sandblasted
during his career in the construction business. Rankin identified
several different brands of respirators that he used
throughout his career while he jackhammered and sandblasted.
Two of the respirators that Rankin used while he jackhammered
and sandblasted were AO's 1050 and 1010. Rankin could not
recall how often or where he wore any specific respirator
that he identified. Rankin never saw any boxes, packaging, or
paperwork that came with the respirators, nor did anyone
teach him how to use the respirators.
Larry Brown, Rankin's former coworker, testified that he
worked with Rankin from 1980 to 1985. Brown testified that he
and Rankin performed carpentry, sandblasted, and jackhammered
during the entire five year period that they worked together.
Brown testified that there was "a lot of dust
created" when they sandblasted and jackhammered
concrete.Although Brown's testimony was
inconsistent, Brown ultimately testified that Rankin wore an
AO mask while jackhammering and sandblasting from 1980
Rankin's "long and complicated medical history"
was well documented at trial. Rankin first was diagnosed with
silicosis, an occupational lung disease, on January 14, 2014,
eight months after Rankin had filed his complaint in the
present case. Rankin also suffered from breathing problems
since 2000; had a heart attack in 2001; underwent open heart
surgery; had multiple strokes; had blood clots in his legs;
suffered pulmonary emboli; had seizure disorders; had Type II
diabetes; underwent leg amputation below the knee due to
diabetes; had peripheral vascular disease; had high
cholesterol; suffered from hypertension; had coronary artery
disease; had congestive heart failure; had chronic
obstructive pulmonary disease (COPD), a chronic lung disease;
and suffered from pulmonary interstitial lung disease.
Dr. Steven Haber, a physician board certified in internal and
pulmonary medicine as well as a certified B-reader, testified
on behalf of Rankin. A B-reader is a physician certified by
the National Institute for Occupational Safety and Health
(NIOSH) to read x-rays for dust diseases of the lung such as
silicosis and asbestosis. Dr. Haber explained that silicosis
is a type of pneumoconiosis or "dust disease of the
lung" caused by inhaling crystalline silica. Dr. Haber
testified four criteria are required before a diagnosis of
silicosis can be made, which are: (1) an x-ray showing scar
tissue; (2) a history of exposure to silica; (3) a latency
period; and (4) a clinical evaluation to determine if there
was another reason for the scar tissue.
Dr. Haber testified that respirable silica may be generated
during construction activities such as jackhammering and
sandblasting. He said that disrupting or breaking up
materials through jackhammering and sandblasting causes
crystalline silica to become airborne in high concentrations.
Dr. Haber testified that the inhalation of silica causes scar
tissue or fibrosis to form in the interstitial or tissue part
of the lung, which results in an incurable and progressive
lung disease known as silicosis.
On January 14, 2014, Dr. Haber personally interviewed and
examined Rankin "regarding possible occupational lung
disease." Dr. Haber took Rankin's occupational
history and reviewed Rankin's medical records, including
x-rays and CT scans, as well as deposition testimony of
Rankin and his coworkers. Dr. Haber gave the following
summary of Rankin's occupational history based on his
interview with Rankin:
[Rankin] was in the construction industry from about 1965
until 2001 when he left work. He had significant occupational
exposures to silica dust. The sources of that silica dust was
from sandblasting, jackhammering, construction work and being
around others who were doing that sort of activity. He, over
his like 35 years of work, had done about ten years or so of
sandblasting. He worked around other sandblasting or
jackhammering or doing activities that were producing silica
dust. And that he would experience sand in the nose or the
mouth while he's doing some of these activities and over
man years, primarily from sandblasting and concrete work
starting in the 1960s.
On January 14, 2014, Dr. Haber diagnosed Rankin with chronic
silicosis that was incurable and likely to progress. Dr.
Haber testified that, although Rankin's heart problems
were not caused by silicosis, the heart problems were
"exacerbated" by silicosis.
Dr. Obie McNair, a board certified internal medicine
physician and former board certified pulmonolgist, also
testified for Rankin. Dr. McNair opined that Rankin's
x-rays revealed "findings consistent with
silicosis." Dr. McNair testified that Rankin's COPD
was caused by simple silicosis, by exclusion. Dr. McNair
based the conclusion on "articles [that] said that
silic[a] exposure can also cause COPD." Dr. McNair
explained that he "deduced" that Rankin's COPD
was "quite possibly related to his silica
Dr. McNair testified that Rankin's diabetes, stroke,
heart attack, peripheral vascular disease, seizure disorder,
hypertension, high cholesterol, and heart failure were not
caused by silica exposure. Dr. McNair also testified that
Rankin's medications for diabetes and cholesterol were
not related to silica exposure. Dr. McNair was asked on cross
examination whether Rankin's medication isordil had
anything to do with silica exposure. In response, Dr. McNair
mentioned a peer reviewed journal article (Liu Article)
containing a study of 40, 000 Chinese workers who were
exposed to silica. Over the objection of AO's counsel,
Dr. McNair testified that, according to the article, people
who had low level exposure to silica were at an increased
risk of dying from heart related complications.
Dr. McNair testified that he did not know whether
Rankin's silicosis would progress at all. Dr. McNair also
testified that Rankin's life expectancy would be
shortened due to the number of his medical problems. Dr.
McNair also opined that Rankin's COPD and chronic
silicosis contributed to or exacerbated Rankin's
right-sided heart disease. Dr. McNair also testified that
Rankin's left-sided heart disease is not attributable to
COPD. When asked whether Rankin's left-sided heart
disease was attributable to silicosis, Dr. McNair again
mentioned that, according to the Liu article, people with
exposure to silica had an increased risk of ischemic heart
disease. Dr. McNair was asked whether Cozaar, a medication
for congestive heart failure, was related to silica. Dr.
McNair explained that silica could be indirectly related to
congestive heart failure, according to the Liu article. Dr.
McNair opined that damaged lungs generally affect the
At the close of Rankin's case in chief, AO moved for a
directed verdict, arguing that Rankin's claims are barred
by the statute of limitations because Rankin knew he had a
lung injury before May 13, 2010. The trial court denied the
motion and AO proceeded with its case in chief. AO called Dr.
Malcom Taylor, a cardiologist who treated Rankin in 2013, to
the stand. Dr. Taylor testified that Rankin had left-sided
heart disease and the right side of his heart was normal.
Although Dr. Taylor did not see any problem with Rankin's
lungs, he referred Rankin to a pulmonologist at the request
of Rankin's wife, Jean. Dr. Taylor testified that
silicosis could lead to COPD, and silicosis could cause lung
AO also called to the stand Dr. Demondes Haynes, a board
certified pulmonary and critical care physician. Dr. Haynes
opined that Rankin did not have silicosis or any occupational
lung disease. Dr. Haynes opined that silicosis does not cause
congestive heart failure or make congestive heart failure
worse. Dr. Haynes testified that Rankin's x-rays dated
January 19, 2010, and April 3, 2013, did not indicate
silicosis. Dr. Haynes opined that Rankin did not have COPD.
Dr. Haynes also opined that Rankin did not have lung disease
or interstitial lung disease.