June 26, 2009 - Texas Cancer Victim Loses Lawsuit

---

Jurors deliberated for less than two hours Thursday before deciding against a Somerville, Texas, 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," a Galveston-based lawyer 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.

A Houston attorney 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.

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. Davis' lawyer, 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.

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," his attorney said Thursday afternoon.

During closing arguments Thursday, a defense attorney 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," his attorney told jurors Thursday.

Defense attorneys 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.

"It doesn't make sense, but it makes a good story," one BNSF attorney said.

Davis' attorney said that the defense attorneys' comments were an effort to muddy the water, "a continuation of what's been going on for about 100 years. It's deception."

One of Davis' attorneys 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."