Decisions – Miss.S.Ct. – Jan. 29, 2015

Dependable Abrasives v. Richard Pierce –  silica  –  Pierce was a sandblaster for 16 years and has been diagnosed with silicosis.  He  filed suit against various manufacturers/ suppliers of silica-containing blasting sand and manufacturers of respirators designed to protect the wearer. Before trial, all defendants were dismissed other than Dependable Abrasives and one respirator defendant American Optical.  A four day trial was had after which a jury found for the defendants 11-1.  The trial judge, Billy Joe Landrum, granted Pierce’s motion for a new trial on the issue of failure to warn as to Dependable Abrasives.  Dependable Abrasives petitioned the Miss.S.Ct. for an interlocutory appeal which the Court granted. Dependable’s defense was that it never sold any of its sand to Pierce’s employers (in which case, there was no duty to warn Pierce or his employers). Pierce argues that “Despite the complete failure of the language on the sand bags to tell the sandblaster of the harm he faced, and that an expert testified it failed to be a warning at all, the jury determined  that there was no failure to warn.”  The Miss.S.Ct. reverses and renders. “[A]lthough the injury to Pierce was substantial, no causal link was established between the Dependable Abrasives product, Diamond Blast sand, and Pierce’s injuries. As such, the jury’s verdict was not against the overwhelming weight of the evidence.”

Yvonne Lovett v. Delta Regional Medical Systems workers comp.   Lovett was a security guard for Delta Regional Medical Center when she slipped and fell  experiencing injuries to her back and to her right knee. Months after returning to work at Delta, Lovett experienced dizziness and weakness and sought treatment and was diagnosed as having suffered a  mini-stroke.

Lovett ended up filing two workers’ comp. claims based on the two events which were consolidated. The ALJ  found that as a consequence of the slip-and-fall injury, Lovett had a thirty percent loss of wage-earning capacity, but that the mini-stroke claim was noncompensable. The administrative judge found certain subsequent medical expenses were not related to her employment and would not be covered. Both parties appealed. The Commission “affirmed in part and reversed in part, finding that there was not substantial evidence to support a thirty percent loss of wage-earning capacity, thus denying her permanent disability benefits, and that Delta would not be held responsible for the payment of Lovett’s treatment with two doctors who were outside the ‘requisite chain of referral.'”  . The Mississippi Court of Appeals affirmed the Commission’s judgment. Lovett v. Delta Regional Med. Ctr. The Miss.S.Ct granted cert.

Because we find that substantial evidence supports the Commission’s finding that Lovett did not receive a thirty percent loss of wage-earning capacity, we affirm in part. Since the administrative judge found that Lovett had suffered a thirty percent industrial loss, which was greater than the two percent functional loss, a separate award was not made. (See ¶ 8, infra). However, when the Commission reversed the administrative judge’s finding, it failed to then consider Lovett’s functional loss. Lovett raises Issue III for the first time in her petition for certiorari review, thus the issue is waived and may n t be considered by this Court. See Moreno v. State, 79 So. 3d 508, 509 (Miss. 2012).

The Court also grants interlocutory appeals in six cases where pcb plaintiffs and lawyers have filed suit against the pcb  plaintiffs’  former lawyers. Here’s the petition in one of them.  And another.   The defendants requested that the cases be transferred from the Chancery Court of Rankin County to Circuit. The chancellor denied the request. The Court grants all six appeals and consolidates them.

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