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Judge denies retrial bid by coal ash disaster contractor

Jacobs Engineering argued that any jury in the second phase of litigation will rehash what's already been decided in the first phase of litigation.
Credit: TVA
Aerial view of the coal ash spill at TVA's Kingston Fossil Plant on Dec. 22, 2008.

KNOXVILLE, Tenn. — The engineering firm hired to clean up the 2008 coal ash disaster in Roane County won't get a new trial, a federal judge has ruled.

Jacobs Engineering sought a re-do in U.S. District Court in Knoxville over ongoing civil litigation that blames it for failing to properly protect workers who toiled amid the ash and its toxins.

Dozens of workers say they became sick from exposure to life-threatening elements such as arsenic, lead and mercury and that Jacobs failed to warn them about the dangers and wouldn't let some wear protective masks.

In November, a federal jury in Knoxville found in favor of the workers, determining Jacobs may indeed bear liability as a result of the cleanup. Lawyers are now preparing for a second phase to determine what if any damages Jacobs should have to pay the plaintiffs.

Jacobs, which had been hired by utility giant TVA, sought a new trial. It argued
 in part that any jury called in for the second phase will just re-examine what's already been reviewed by the first jury.

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However it tries to act now, the firm argues, it stands to lose.

Chief U.S. District Judge Tom Varlan, however, wrote in an order filed Thursday that Jacobs has options and there's no sure bet that it will lose during the second phase of litigation.

Any jury that is seated to consider compensation claims will be told that the first jury's verdict is binding: Jacobs breached its obligation to employees. Issues already considered won't be re-litigated, he wrote.

"(The first trial) dealt with Jacobs's conduct, and (the second trial) will deal with the effects of that conduct on individual plaintiffs," the judge wrote.

"The task for the (second jury) then, will be determining whether an individual plaintiff's exposure actually did cause the plaintiff's disease, and if so, the resulting damages, which does not overlap with any (first trial) issues."

If, as Jacobs argues, the jury in the second phase ends up finding negligence by Jacobs where the first jury did not, then that will have to be addressed, the judge wrote.

Varlan is hoping, however, that the case can be resolved without jury trials.

He's ordered lawyers for both sides to pick a mediator who can help them work through their claims. The lawyers have been given an extra 30 days to try to pick a mediator after failing to reach one in recent weeks.

Varlan also expects Jacobs and the workers to use a mediator in good faith for the next five months to try to resolve their differences.

The disaster took place in December 2008 after a dike holding liquid coal ash collapsed at TVA's Kingston  plant and spread across the nearby countryside. It cost more than $1 billion to repair.

Workers argue TVA should bear some responsibility for their health woes. TVA is not a party to the lawsuit.

TVA, however, recently acknowledged in a routine filing with the Securities and Exchange Commission that it could end up having to shoulder some of Jacobs' Engineering's lawsuit costs.

U.S. Reps. Tim Burchett, R-Knoxville, and Steve Cohen, D-Memphis, earlier this month sent a letter demanding answers to a series of questions about the spill and its effects. They say they're still waiting for the response.

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