Kingston coal ash settlement: What it means for the cleanup workers who sued

Attorneys for the Kingston coal ash workers and Jacobs Solutions told Knox News on Tuesday, May 23, they have settled the ongoing lawsuits the workers filed over health problems they say were caused by their work cleaning up the catastrophic 2008 coal spill.

"After years of litigation and lengthy negotiations, the parties have entered into a confidential settlement agreement which will resolve all of the cases," said the joint statement from plaintiffs lawyer Greg Coleman and Jacobs Solutions lawyer Dwight Tarwater.

Workers began filing lawsuits about 10 years ago, saying they suffered health problems from cleaning up the Tennessee Valley Authority's Kingston coal ash spill in 2008, when a dike holding back a slurry of coal ash broke and released 5.4 million cubic yards of waste that engulfed nearby homes and surged into the Emory River Channel in Roane County.

The suits were filed by workers against TVA's contractor, previously known as Jacobs Engineering, which was in charge of sitewide safety and health. The workers cited an array of health problems they say were caused by coal ash exposure, including lung cancer, coronary artery disease, leukemia, chronic obstructive pulmonary disease and emphysema.

Here's what we know about the implications of a settlement between the two sides, even without specific details of an agreement.

It's taken almost 10 years to settle, and it could've been longer

"The typical personal injury case settles anywhere between one and three years. Cases like this one are highly complex. So it's not surprising that it took longer to reach a settlement, but 10 years is still a really long time for a case like this," said Alex Long, an expert in torts and a law professor at the University of Tennessee at Knoxville.

The cases were settled while both parties were awaiting a judgment from the Tennessee Supreme Court that could have critically influenced whether some of these workers or families would be able to proceed to a second trial. The second trial would have required each worker to prove to a jury that their health problems were caused by the actions of Jacobs, which was in charge of safety at the spill site during cleanup.

Long said if there had not been a settlement, or if the Tennessee Supreme Court had decided in favor of Jacobs in an argument the company was making in an ongoing case about whether a state law should be considered in the case, "you were looking at at least another year and probably longer before this case was ever finally resolved."

What does the coal ash settlement include?

Knox News does not know how much money the two sides settled on, but here's what we do know:

• Money from the settlement would pay for the attorney fees for the workers' lawyers, who took this case on contingency.

• Had the case proceeded to trial, the families could have received a maximum of $750,000 for pain and suffering and up to $500,000 or double their compensatory damages. This is because the state of Tennessee caps damages on personal injury cases. The families also could have received compensation for economic damages such as their hospital bills and monetary losses.

• The amount received in any settlement likely would be less than what could have been awarded if they had won the second phase of the trial, but by agreeing to a settlement the workers eliminated the risk they would receive nothing if they lost at trial.

Settlements can mean something different for everyone

More than 220 cases were filed by workers and more than 100 cases by workers' spouses. For some, it has been up to 10 years since the court battle started and almost 15 years since the Kingston spill.

The settlement means some workers who couldn't afford their medical bills can start paying for treatment.

"So one of the main goals of civil litigation is to make the victims whole to fully compensate them for their losses. The law is not perfect in this regard, and so it's difficult to fully compensate someone for their emotional distress or the death of a loved one," Long said. "That said, the victims are getting some compensation here, which will hopefully make them somewhat whole."

A settlement also means the end of the uncertainty over whether these families might actually be paid. The cases were on hold as the Tennessee Supreme Court considers a case about the state's silica statute, which could have dealt a knockout blow to the plaintiffs if the court sided with Jacobs Solutions. (More on the silica statute below.)

If the state Supreme Court rules in favor of the workers, the cases would have proceeded to a second trial where each worker would have had to prove their individual condition was caused by exposure to coal ash at the Kingston spill site.

But it isn't necessarily about the money or just about the money for these families. For some, taking a settlement means never getting a legal judgment that signifies justice.

"There is a tension not only among people, but sometimes even within a single person about what they want. In many cases, they simply need the money that tort suits provide to pay their medical bills and take care of their lost wages. That is a very practical concern. But they also want justice or vindication, and those two impulses are often in tension," said Christopher Robinette, a tort law expert and law professor at the Southwestern Law School in Los Angeles.

Some workers from the Kingston cleanup have died over the past 10 years, and for some, a dollar amount cannot be put on a life. Jacobs paying up means the end of the workers' cases, but not the end of these families' pain, suffering and anger.

Last week: Tommy Johnson, one of the Kingston cleanup workers who sued over coal ash exposure, dies

"Unless there's an admission of fault by the defendant, there's still an open question as to whether the defendant truly was at fault, and sometimes that's important to the victim," Long said.

What does this mean for coal ash cases in the United States?

The coal ash workers' cases have been a landmark in setting the stage for coal ash cases, but a settlement does not necessarily mean a precedent has been set for future coal ash exposure cases.

"The fact that plaintiffs won a phase one jury trial, meaning that general causation was established, is certainly positive for future cases," Robinette said. "But due to a lack of precedent, meaning an appellate court decision, it will have limited impact going forward."

Related: EPA wants to expand coal ash rule. Here's what it adds to protect disposal site neighbors

What does this mean for coal ash cases for states with a silica statute like Tennessee's?

Before the cases were settled, Jacobs raised a question: Do coal ash cases fall under the Tennessee Silica Claims Priorities Act, a law that is restrictive to injuries related to silica exposure? Silica is a component of coal ash.

The federal court judge hearing the workers' cases asked the Tennessee Supreme Court to decide whether the lawsuits would fall under the Silica Act. If they did, many or all of the cases could be tossed. If they didn't, the cases could proceed to a second individual trial.

While coal fly ash is primarily silica, it is important to know silica is the most common element in the Earth's crust. And coal ash doesn't just contain silica; it is composed of heavy metals and possibly elements that emit radiation.

"Coal ash contains contaminants like mercury, cadmium, chromium, and arsenic associated with cancer and various other serious health effects," the Environmental Protection Agency said in a recent news release about coal ash disposal regulations.

The state Supreme Court heard arguments last June about whether the state law would apply, and no ruling has been made. Lawyers for Jacobs and the workers agreed in April to wait 90 days for the decision from the state Supreme Court.

Given the settlement, any decision from the court likely will remain unpublished, but since Jacobs raised the question, coal ash cases that come through Tennessee or other states with similar silica laws might have to answer that question.

"Without a definitive ruling from the Tennessee Supreme Court, it's an open question as to what that statute really means and how much protection it affords potential defendants," Long said. "If a similar set of facts comes up again, it's entirely possible that same issue regarding interpretation of that act will come up again."

What does this mean for TVA?

TVA was never sued in the original lawsuits but the federal agency's actions were at the center of the lawsuit since the Kingston coal ash spill was TVA's environmental disaster. TVA hired Jacobs as the contractor in charge of sitewide safety and health, a contract a 2018 jury found Jacobs had violated, exposing the workers to the ash and putting them at risk. Jacobs' actions, the jury found, could have caused 10 health conditions and diseases the workers experienced.

Since the 2018 verdict, Jacobs has tried to claim immunity, saying as a contractor it is entitled to the same immunity provided to TVA. In its final attempt, Jacobs appealed to the Sixth Circuit and claimed that because TVA is a government agency and would have been immune to the lawsuit, Jacobs should be immune as well. That final attempt was shot down in spring 2022 when the Sixth Circuit Court of Appeals said that, had TVA been sued originally it would not have qualified for immunity, so Jacobs did not qualify for immunity.

The Sixth Circuit opinion raises the question of whether TVA is now open to similar lawsuits.

"The court held that even if cleaning up coal ash was a governmental function, these lawsuits are legitimate. Therefore, TVA may be forced to defend more lawsuits in the future," Robinette said.

Anila Yoganathan is an investigative reporter. Email anila.yoganathan@knoxnews.com. Twitter @AnilaYoganathan.

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This article originally appeared on Knoxville News Sentinel: Kingston coal ash settlement: What it means for the workers who sued