http://www.lexisnexis.com/mealeys/news.aspx Headline Silica Legal News from LexisNexis® en-us http://www.lexisnexis.com/mealeys/images/lexismealeyslogo.gif 130 29 http://www.lexisnexis.com/mealeys/news.aspx Copyright 2012 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank JACKSON, Miss. - A man's lawsuit for silicosis injuries did not toll the statute of limitations for his son's subsequent wrongful death claim because the two actions were separate and distinct, a divided Mississippi Supreme Court said May 3, reversing a trial court ruling and holding that the wrongful death action is time-barred (Empire Abrasive Equipment Corp., et al. v. Henry S. Morgan Jr., individually and on behalf of all wrongful death beneficiaries of Henry Morgan S. Sr., Nos. 2010- 00247, 2010-00250 and 2010-00255, Miss. Sup., 2012 Miss. LEXIS 217). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MOUNT VERNON, Ill. - Proceedings before a U.S. Department of Labor (DOL) district director do not collaterally estop a former coal miner from seeking workers' compensation benefits from a state agency because the DOL action is an investigation, not an adjudication, an Illinois appeals court held April 30 in reversing a trial court ruling (Donald Edmonds v. Illinois Workers' Compensation Commission, et al., No. 5-11-0118, Ill. App., 5th Dist., 2012 Ill. App. LEXIS 317). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank RICHMOND, Va. - The Fourth Circuit U.S. Court of Appeals affirmed a retired coal miner's benefits award on May 15, rejecting an employer's argument that an administrative law judge (ALJ) violated federal law by relying on the preamble to the Black Lung Benefits Act (BLBA) amendments (Harman Mining Co., et al. v. Director, Office of Workers' Compensation Programs, U.S. Department Of Labor, et al., Nos. 05-1620, 11-1450, 4th Cir.; 2012 U.S. App. LEXIS 9775). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHARLESTON, W. Va. - The West Virginia Supreme Court of Appeals on April 24 affirmed the denial of additional permanent partial disability benefits for occupational pneumoconiosis, saying the petitioner failed to present evidence that the disease had progressed (Ronald H. Clevenger v. West Virginia Office Of Insurance Commissioner, et al., No. 101504, W. Va. Sup., 2012 W. Va. LEXIS 197). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MOUNT VERNON, Ill. - A state workers' compensation commission ruling upholding an arbitrator's benefit award to a former coal miner was not against the manifest weight of the evidence, an Illinois appeals court held April 30, reversing a trial court decision (Consolidation Coal Co. v. Illinois Workers' Compensation Commission, et al., No. 5-10-0460, Ill. App., 5th Dist., 2012 Ill. App. Unpub. LEXIS 975). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CINCINNATI - A Sixth Circuit U.S. Court of Appeals panel on April 16 affirmed the denial of benefits to a coal miner on the grounds that only one blood gas study out of several indicated a possible disability from pneumoconiosis (Robert Collett v. Chas Coal LLC, et al., No. 11-3007, 6th Cir., 2012 U.S. App. LEXIS 7769). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHARLESTON, W. Va. - The widow of a worker diagnosed with occupational pneumoconiosis is not entitled to death benefits because his history of heart problems was a more significant factor in his death, the West Virginia Supreme Court of Appeals held April 13, affirming the denial of benefits (Caroline Scarberry, widow of Henry Scarberry v. West Virginia Office Of Insurance Commissioner, et al., No. 101601, W. Va. Sup., 2012 W. Va. LEXIS 229). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW ORLEANS - A Louisiana appellate panel on May 9 affirmed a trial court's award of compensatory damages to class representatives in litigation over silica, sand and dust contamination from sandblasting (Helene Benn Jones, et al. v. Capitol Enterprises Inc., et al., No. 2011-CA-0956, La. App., 4th Cir.; 2012 La. App. LEXIS 639). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-9%20Mealey%27s%20Litig.%20Rep.%20Silica%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank WHEELING, W.Va. - A railroad successfully alleges a scheme to file fraudulent asbestos claims against it that includes the use of a discredited asbestos and silica diagnosing physician, a West Virginia federal judge held May 3 in denying a motion to dismiss (CSX Transportation Inc. v. Robert V. Gilkison, et al., No. 05-202, N.D. W.Va.; 2012 U.S. Dist. LEXIS 61719; See February 2012, Page 9). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Silica%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - A federal appeals court on April 3 refused to hear an employer's petition for review of a benefits award to a coal miner's widow, holding that it had already concluded that the amended Patient Protection and Affordable Care Act (PPACA) does not violate procedural due process (ITEC., et al. v. Director, Office of Workers' Compensation Programs, U.S. Department of Labor, et al., No. 10-3126, 3rd Cir., 2012 U.S. App. LEXIS 6619). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Silica%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank RICHMOND, Va. - A benefits review board abused its discretion in ruling that an employer was deprived of due process in an earlier hearing, which resulted in the denial of survivor's benefits to a coal miner's widow, a federal appeals court held March 12 (Mary Louise Lusk v. Slab Fork Coal Co., et al., No. 11-1654, 4th Cir., 2012 U.S. App. LEXIS 5272). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Silica%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ABINGDON, Va. - A Virginia federal judge on March 29 rejected a former coal miner's contention that a decision denying him disability benefits for pneumoconiosis was not supported by substantial evidence because his functional capacity had been improperly determined (Steve R. Blackwell v. Michael J. Astrue, Commissioner of Social Security, No. 11-00032, W.D. Va., 2012 U.S. Dist. LEXIS 43145). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Silica%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SYRACUSE, NY - The maker and supplier of silica-containing products used to manufacturer ceramic dinnerware argues in a third-party complaint filed Dec. 14 in New York court that dinnerware manufacturers must defend it in silica exposure litigation brought by an employee of the manufacturers (Unimin Corp. v. Syracuse China Co., et al., No. 2010-1098, N.Y. Sup., Onondaga Co.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Silica%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PIKEVILLE, Ky. - A Kentucky couple sued two respirator manufacturers for product liability in federal court on April 5, alleging that the defective masks caused the husband to develop pneumoconiosis while working for several coal mining companies (Chuck Bentley, et al. v. American Optical Corp., et al., No. 12-00034, E.D. Ky., Southern Div.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Silica%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PIKEVILLE, Ky. - A coal miner with pneumoconiosis and his wife on April 5 sued three respirator makers in a federal Kentucky court, alleging that the defendants knew or should have known that their products were defective (Ricky Sturgill, et al. v. 3M Co., as successor by merger to Minnesota Mining & Manufacturing Co. and/or its predecessors successors in interest, No.12-00035, E.D. Ky., Southern Div.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Silica%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank JACKSON, Miss. - An insurer on Jan. 6 removed a garnishment action brought by a sandblaster's widow to a Mississippi federal court, arguing that the action involves parties from different states (Rutha Eastman as Administratrix of the Estate of Robert H. Eastman II v. Mississippi Valley Silica Co., et al., No. 12-00008, S.D. Miss., Western Div.; See November 2011, Page 7). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Silica%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank WASHINGTON, D.C. - A proposed rule implementing amendments to the Black Lung Benefits Act that were enacted in Section 1556 of the Patient Protection and Affordable Care Act of 2010 (PPACA) was introduced by the U.S. Department of Labor's Office of Workers' Compensation Programs (OWCP) on March 30. http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Silica%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - The 10th Circuit U.S. Court of Appeals affirmed lifetime and survivor's benefits awards to a coal miner's widow on Feb. 28, holding that a benefits review board panel had the authority to reinstate the awards after they were vacated by an administrative law judge (ALJ) (Bridger Coal Co. v. Director, Office of Workers' Compensation Programs, United States Department Of Labor, et al., No. 11-9531, 10th Cir.; 2012 U.S. App. LEXIS 4023). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Silica%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank RICHMOND, Va. - The Fourth Circuit U.S. Court of Appeals on March 1 rejected an employer's arguments that an administrative law judge (ALJ) did not adequately consider medical experts' testimony refuting the diagnosis of legal pneumoconiosis in a coal miner who smoked (Southern Appalachian Coal Co. v. Alan L. Adkins, et al., No. 10-2286, 4th Cir.; 2012 U.S. App. LEXIS 4394). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Silica%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - A coal company unsuccessfully argued that a miner's benefits award was precluded by four previous claims and that the award was not supported by new evidence, the Third Circuit U.S. Court of Appeals ruled March 2, affirming a decision by an administrative law judge (ALJ) (Canterbury Coal Co. v. Director, Office of Workers' Compensation Programs, United States Department Of Labor, et al., No. 11-2049, 3rd Cir.; 2012 U.S. App. LEXIS 4295). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Silica%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHARLESTON, W. Va. - The West Virginia Supreme Court of Appeals on Feb. 15 affirmed findings that a widow was not entitled to occupational pneumoconiosis death benefits because medical records indicated that the disease did not substantially contribute to his death (Betty Estep, v. West Virginia Office Of Insurance Commissioner, et al., No. 101258, W.Va. Sup. App.; 2012 W. Va. LEXIS 54). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Silica%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHARLESTON, W.Va. - Evidence showed that a worker died from congestive heart failure and atherosclerosis, not pneumoconiosis, the West Virginia Supreme Court of Appeals concluded Feb. 17 in affirming the denial of a widow's benefits (Mary Gannon v. West Virginia Office Of Insurance Commissioner, et al., No. 101392, W. Va. Sup. App.; 2012 W. Va. LEXIS 71). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Silica%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CINCINNATI - A unanimous Sixth Circuit U.S. Court of Appeals panel on Feb. 7 overturned an award of black lung benefits to a miner because the administrative law judge applied the wrong evidence standard when reviewing the claim (Island Creek Coal Co. v. Harold Calloway, No. 09-4589, 6th Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Silica%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MILWAUKEE - A group of foundry workers asked a Wisconsin federal court on Feb. 8 to certify a class of employees who are seeking payment for time spent donning and doffing gear protecting them from silica dust in certain departments of the company (Ryan Dekeyser, et al. v. Thyssenkrup Waupaca Inc. d/b/a Waupaca Foundry Inc., No. 08-488, E.D. Wis.; See February 2012, Page 12). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Silica%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW YORK - The corporate parents of a manufacturer named in hundreds of silica and asbestos bodily injury suits argued to a New York federal court in an Aug. 8 filing that primary and excess insurers must pay the underlying defense costs. An excess insurer responded Feb. 3 disputing the issue of "trigger of coverage" (Danaher Corp. v. Travelers Indemnity Co., et al., No. 10-0121, S.D. N.Y.).