Published Friday, June 26, 2009 6:05 AM
Somerville cancer victim loses lawsuit
By JANET PHELPS
janet.phelps@theeagle.com
CALDWELL --Jurors deliberated for less than two hours Thursday before deciding against a Somerville man who blames his cancer on his former employer.
Dennis Davis, 56, sued Burlington Northern Santa Fe Railway, alleging that the company deliberately misled its workers at the railroad tie-manufacturing plant in Somerville while exposing them to carcinogenic chemicals.
Attorneys for BNSF said Thursday that the verdict showed that "Somerville is fine."
"This should be good news to the city of Somerville. I really think this lawyer-driven situation has cost them tourism and other business ... because of the false rumors that have been spread," Galveston-based lawyer Doug Poole said. "This is junk science. There's nothing there."
Lawyers for both sides, along with Davis' friends and family, packed the tiny courtroom Thursday to hear closing arguments.
District Judge Reva Towslee-Corbett ordered the courtroom doors opened and several rows of benches arranged in the hallway to contain the overflow crowd.
Davis' attorneys asked jurors for at least $45.4 million in damages.
Houston attorney Jared Woodfill, who represented Davis, said he was surprised that jurors came to their decision so quickly.
"It sends a bad message to plants all over the country that it's OK not to provide protective equipment to your employees," he said.
Dozens of lawsuits have been filed against BNSF, the nation's second-largest railroad company, and Koppers Industries Inc., which bought the Somerville plant in 1995.
Poole said this trial -- which lasted about nine weeks -- was the second-longest in the railroad's history.
This is the second time a jury has ruled in favor of BNSF in a Somerville cancer case. Woodfill, who represents about 400 other plaintiffs, says it's not over yet.
"This is a war. This is just one battle in a war to make these folks do the right thing and take care of the folks they have injured," he said. "I'm not giving up on Somerville or the men who gave their lives to this plant."
The 100-year-old railroad tie-manufacturing plant is Somerville's largest employer. Davis worked there from 1971 until 1995.
He was diagnosed in 2006 with cancer that has since spread to his lungs, liver, appendix and skin. For much of the trial, Davis sat hunched over in the courtroom with a surgical mask covering his face.
He was diagnosed in 2006 with cancer that has since spread to his lungs, liver, appendix and skin. For much of the trial, Davis sat hunched over in the courtroom with a surgical mask covering his face.
His wife, who is also a plaintiff in the suit, said her husband put off his last three chemotherapy treatments so he could be well enough to attend the trial.
Davis "is taking it hard, but he's taking it a lot better than we expected," Woodfill said Thursday afternoon.
During closing arguments Thursday, Poole told jurors that they had a duty to disregard sympathy in making their decision. Davis' case, he said, was "long on sympathy, short on science, short on truth."
Witnesses called by Davis' attorneys testified about contamination at the plant and said they were not given any safety equipment.
"Everywhere you went in this plant, you were dealing with a highly toxic product, and there was no way to keep it off of you," Woodfill told jurors Thursday.
Poole pointed to reports from government regulatory agencies that found no unsafe conditions at the plant and showed jurors a picture of one of Davis' daughters as a child in a diaper wearing his work boot. The boot and carpet in the photo are clean.
Davis' attorneys have said the company purposely misled government regulators and Somerville residents -- burning treated wood at night so it wouldn't be seen or smelled.
Over the past two weeks, BNSF witnesses told jurors that there was no scientific link between chemical exposure and the type of cancers Davis has.
BNSF attorneys showed Davis' videotaped deposition and pointed to inconsistencies in his testimony including the date he received safety equipment. Poole said Thursday that Davis' story was "a bunch of hooey."
"It doesn't make sense, but it makes a good story," he said.
Poole's comments, Woodfill said, were an effort to muddy the water, "a continuation of what's been going on for about 100 years. It's deception."
Another Davis attorney, Rachel Mor, told jurors Thursday that this was a "David and Goliath" case, asking Davis to stand and take off his surgical mask for the first time since the trial started.
"This is the face of a hero," she said. "This is the face of a man who is willing to face down a Goliath."
Comments
8 comment(s) found!
Posted by:
Nurse who cares On:
Tuesday, July 14, 2009 9:48 PM
Comment Title: Sommerville Cancer Victim
Please people, how can one jury in one part of the country find the Railroad not liable but the United States ninth court of appeals found them liable in Febuary 2009. Mr. Davis-God Bless You and may he help you-if not him try the Attorneys in this case Burlington No. & Santa Fe R. Co. v. United States (07-1601); Shell Oil Co. v. United States (07-1607) posted on Cornell University Law School web site http://topics.law.cornell.edu/supct/cert/07-1601 Ruling came down in 2007 but as we guessed the company will just keep appealing until all the victims are already dead so they don't have anyone to fight. Unfortunately it still has to go to the Supreme Court for the final ruling. In Burlington No. & Santa Fe R. Co. v. United States and Shell Oil Co. v. United States, the U.S. Supreme Court will determine if, under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), a manufacturer is liable, as an arranger, for spilling or leaking a hazardous substance while delivering that substance to a purchaser and clarify when, under CERCLA, a court may impose joint and several liability or may, instead, reasonably apportion liability among responsible parties. The Supreme Court's decision will likely impact manufacturers and purchasers of hazardous substances, owners and lessees of contaminated lands, cleanup of contaminated lands, and reimbursements to federal and state governments If the government is so worried about the price of national healthcare-medicare costs, ect... then why does it let these corporations get buy with driving up the number of cancer cases and the costs of environmental clean up that they will eventually have to pay for? I guess they are robing Peter to pay to Paul- Jobs today for the employees of the plants- who pay in tax dollars- so those tax dollars can pay a small portion of the inflated healthcare costs when the employees get ill. Kind of like another loan with Super high interest aye?
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Posted by:
Loser Police On:
Saturday, June 27, 2009 12:02 PM
Comment Title:
Somerville is Loserville.
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Posted by:
On:
Saturday, June 27, 2009 12:13 AM
Comment Title: Somerville
The water tables the contaminants, (mostly Creasote, and Napthalene) were placed in were below the normal level of Lake Somerville. Unfortunately this does not help Somerville residents. (Check topography maps.) I was married to a third generation Treating Plant offspring. We never were able to carry a child to term. Check the ingredients in tobacco smoke, (proven carcinogen), and Creasote and Napthalene. The proven mutation causing chemicals are identical in all. Since these chemicals are vapors like steam, or carbon dioxide the only truly protective equipment from these would be compressed breathing air and a sealed suit. I wonder when these have been provided.
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Posted by:
On:
Friday, June 26, 2009 2:17 PM
Comment Title: Wrong decision
The railroad IS responsible for the stink (which is more than an odor, it is a toxic fume), the cancer, and the failure of Somerville to attract other businesses. This jury made a mistake. What kind of proof will a jury need? When will the railroad make the decision to do the right thing IN SPITE OF winning repeated lawsuits?
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Posted by:
On:
Friday, June 26, 2009 1:17 PM
Comment Title: FALSE WITNESS/SPOKE IT ON HIMSELF
NOW MR DAVIS NEEDS TO PREPARE TO MEET HIS CREATOR ASKING FOR FORGIVENESS,THE LOVE OF MONEY IS THE ROOT.AS FOR ME AND MY FAMILY WE WILL SERVE THE LORD.MR DAVIS TRADED HIS GOOD HEALTH FOR GREED BUT THIS TIME GOD WAS NOT IN IT.HE LOST. NOW WILL MR DAVIS SELL ALL HIS WORLDLY GOODS AND MOVE OUT OF SOMERVILLE?? AND WHY WOULD HE AND HIS FAMILY STAY AFTER ALL THE DAMAGE HAS BEEN DONE.AND WHO WILL HE GET TO PAY HIS DEBITS.SOMERVILLE HAS LOST MUCH PEOPLE CALLING TO FIND OUT IF THE LAKE IS SAFE THE MOTELS OR SAFE AND FOOD PREPARED WITH SOMERVILLE WATER. WILL HE NOW SUE THE TEAM OF LAWYERS,THE JUDGE.THE JURY,ME, YOR FAMILY,WHEN DOES IT STOP????!WHAT WOULD WE BE DOING IF WE KNEW WE MAY ONLY HAVE A YEAR OR TWO??AND NOW THAT HE'S SCARED HIS GRAND CHILDERN AND OTHERS CHILDERN TO THE POINT THEY OR AFRAID TO DRANK,SWIM.BATH.GO TO SCHOOL.THE HARM WILL AFFECT BURLESON CO.SOMERVILLE AND ALL THE LITTLE TOWNS AROUND FOR A LONG TIME.HE WANT BE REMEMBERED AS A HERO OR MARTOR.BUT SOME ONE WHO SUED&SUED AND LOST. GOD BLESS SOMERVILLE &ALL THE LITTLE GUYS WORKING HARD FOR THIER FUTURE
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Posted by:
On:
Friday, June 26, 2009 1:14 PM
Comment Title: _______________RAILROADED_______________
I wouldn't want an Eagle reporter to give the names of those who served on this jury but it would sure be interesting to know just which citizens "railroaded" the victim in this case.
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Posted by:
On:
Friday, June 26, 2009 10:15 AM
Comment Title: How else can we control Corporations
The verdict is in and the case is over. Justice is served. Corp. are mindless, souless, bodyless organizations designed for the sole purpose of profit. Without civil law they can not be punished or controlled if they injure society. Yes, it times time and money to try lawsuits but that is what makes our country strong. They go both ways but without them children would still burn in nylon nightgowns, arsenic would still be pumped into Bryan lake and the area, there would be less lighting in parking garages and lots, buildings would be fire hazards and on and on. I wish there was an easier more just way but there is not. God bless America and lets not give up more of our individual rights.
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Posted by:
On:
Friday, June 26, 2009 8:50 AM
Comment Title: Unfortunate but JUST
We all feel sorry for Mr. Davis but his lawsuit was totally unfounded. There have been decades of monitoring of the facility and safety policies and while it may smell bad from time to time it is just not hazardous. All he did was take up ten weeks of the lives of jurors, cost Burleson County thousands of dollars and black the eye of a good small town that is trying to survive tough economic times. The Texas Legislature needs to pass a loser pays law.
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