After Texas Court Avoids Question on Duty to Warn, Can Suppliers Relax?

The nation's silica litigation attorneys and their clients kept a close watch on a case decided last year in Texas that was supposed to help define the limits of liability for failure to warn of silicosis danger. It took nearly 2 years for the Texas Supreme Court to finally issue its decision in Humble Sand & Gravel Inc. v. Gomez, 146 S.W.3d 170 (Tex. 2004), holding that flint supplier Humble Sand & Gravel Inc. had no duty to warn companies whose employees used the product for abrasive blasting that there were risks associated with silica dust in the workplace. The reason the court gave for its decision was that the risks of silica dust in the workplace had been known for years and companies that regularly dealt with blasting materials were “sophisticated users.”

What the court did not rule on was the second key question posed by the case: whether the “sophisticated user” doctrine would also relieve an abrasive material supplier of the duty to warn its customers' employees ' who work with the product and are thus vulnerable to inhalation diseases ' that exposure to silica dust can lead to serious disease and death and that they should wear protective equipment when working with the product. A decision on this issue, the court stated, would have to be determined at a new trial. Therefore, the court remanded to the 60th District Court in Beaumont for a new trial. The decision reversed Texas' Sixth District Court of Appeals holding, which had affirmed a more than $2 million judgment for Raymond Gomez and his two children.

So, what became of that second question the court didn't answer in September? Should preventive measures be taken by the industry to avoid a potential new source of liability?

The Plaintiff's Story

Raymond Gomez contracted silicosis while working at and around abrasive blasting (sandblasting) for about 6 1/2 years, from 1984-1987 and again from 1991-1994, at plants in Texas. He worked for Spincote Plastic Coating Co, a company that employed approximately 1400 people in various locations around the country. Spincote was in the business of using abrasive blasting to clean and condition oil field tubing. Abrasive blasting at Spincote's plants was done inside a building in an area called the blast house.

Gomez was hired to work at a job that did not involve blasting, but was performed in the dusty environment of the building. He was given only a disposable paper mask that was held against his face with rubber bands. After his first month, Gomez was moved to a job that did involve blasting. At that point, he was provided an air-fed hood in addition to the paper mask and was shown how to use the hood properly. However, when the workers went on breaks or were performing jobs other than abrasive blasting jobs, they routinely took off their protective hoods.

Humble, a small, family- owned and-operated business with eight employees located in Oklahoma, provided flint for Spincote's operation. The company began packaging and selling flint for abrasive blasting in 1982. Humble sold flint both in bulk and in 100-pound bags, and only to industrial customers. From the beginning, Ron Humble, who ran the business with his father, knew that breathing the silica dust generated by abrasive blasting could cause silicosis and that the disease could be fatal. He also knew that he should put some sort of warning label on the bags, and after making inquiries of OSHA and a trade organization that yielded him no useful information, he decided to copy the following label used by a competitor, Independent Gravel, a company he understood had been in business for more than 50 years: “Warning! May be injurious to health if proper protective equipment is not used.” In addition to the warning on its bags, Humble provided its customers a Material Safety Data Sheet (“MSDS”) as required by OSHA regulations. The MSDS suffered the same dual inadequacies as the bag label: It failed to emphasize the severity of the health hazard – that it could be fatal – and failed to specify that the respirator used should not just be “approved” but air-fed.

In 1993, Humble began using the following more extensive warning on its bags: “Warning. Breathing dust of this product causes silicosis, a seriously disabling and fatal lung disease. An approved and well-maintained air-supplied abrasive blasting hood must be worn at all times while handling and using this product. Follow all applicable OSHA standards.” Ron Humble testified that he had known all of the additional details in this warning since 1982, but had not included them earlier because he had simply copied Independent Gravel's warning.

Gomez testified that the first time he saw Humble's bags he noticed the warning labels they displayed and asked his foreman about them. His foreman replied that as long as Gomez wore his hood and mask, he would be all right. Gomez thought the phrase on Humble's label stating that the product could be “injurious to health” meant that dust rebounding off blasted surfaces could hurt when it struck the skin and was bad to breathe. The hood, he thought, was for protection from the flying dust and the paper mask was to prevent inhalation. Gomez testified that had he known how dangerous silica dust was, he never would have taken or kept a job working around it.

In November 1994, Gomez was diagnosed as having subacute silicosis due to a high exposure to silica dust. He left work at Sivalls Inc., where he was then working, and was never again employed in abrasive blasting. Gomez filed suit in Jefferson County against more than 20 defendants, including four suppliers of flint used as the abrasive in the blasting work, two suppliers of blasting equipment, 13 suppliers of protective gear worn by workers, and several job site owners. Gomez settled with all the defendants except Humble for a total of $389,200.

Known Risks of Silica Exposure

The parties all agreed that the health risks from inhaling silica dust had been well known for a very long time. Because of these hazards, OSHA regulations for abrasive blasting, originally promulgated in the early 1970s, require the use of respirators, or air-fed hoods, “constructed [to] cover the wearer's head, neck, and shoulders to protect him from rebounding abrasive.” These regulations also require employers to develop written procedures for selecting respirators, to instruct employees in their use, to keep respirators clean and well maintained, and to conduct frequent random inspections to ensure employee compliance.

Ken Gray, the general manager of the Spincote subsidiary in 1984, testified by deposition that it was Spincote's obligation to be aware of safety requirements, to provide a safe working environment including proper respiratory equipment, and to train its employees in safety procedures. He said that he relied on applicable regulations for safety information and not on any supplier's warning label. But Gray also testified that in 1982, when he took over Spincote, he did not know that inhaling silica dust could cause silicosis; he knew only that silica dust was a nuisance and that breathing it was not healthy. He had himself walked through the dusty blasting building as often as twice a day without wearing any respiratory protection. He wasn't sure of when he learned that inhaling silica could be fatal, saying at various times that it was as soon as the early 1980s or as late as December 1986.

Eldon Workman, a Spincote plant manager, testified by deposition that when he began working with silica products in the 1950s, he didn't know of their dangers, but that when he became Spincote's plant manager he understood that breathing silica dust could lead to silicosis and death, and that it was his responsibility to provide employees with this information. He said that Spincote's blasting employees were required to wear air-fed hoods, were reprimanded if they failed to do so, and were fired after three violations, but he wasn't asked why those working in an area contaminated with silica dust were not also required to wear such gear. Like Gray, however, Workman could not say definitely whether employees were ever told that inhaling silica dust could be fatal.

Outcome and Appeal

When Gomez's action against Humble went to trial in 1999, he had become licensed as a barber. Dr. Gary Friedman, board certified in internal medicine and occupational medicine, testified that while Gomez had suffered as yet few symptoms and no impairment, silicosis is a progressive disease, and given the extent and duration of his exposure, Gomez could expect significant disability within 8 years and full disability within 15 years. Dr. Friedman believed that Gomez, then 33, had a life expectancy of 20-25 years. The jury found that Gomez's injury was caused by Humble's unspecified negligence and awarded him damages of about $2 million.

On appeal, Humble did not challenge the jury's liability findings, including the inadequacy of its warning of the dangers of using flint in abrasive blasting. Rather, Humble argued that it had no duty to warn of those dangers because they were well known in the abrasive blasting industry; Humble sold only to industrial customers, and it was entitled to rely on those experienced industrial customers to provide their own employees (like Gomez) with all necessary information. A divided court of appeals rejected Humble's argument and affirmed the district court's judgment.

The Texas Supreme Court granted Humble's petition for review. (Shortly thereafter, Gomez died of injuries sustained in a car accident. The case went forward on behalf of other joined plaintiffs.) Humble renewed its argument that it was the plaintiff's employer, if anyone, who had the duty to warn Gomez. Gomez argued that regardless of anything Spincote should have done, Humble had a duty to warn him of two things: that inhaling silica dust could lead to disability and death, and that an air-fed hood should be worn around silica dust at all times. Employers like Spincote, Gomez contended, could not be relied on to provide these warnings.

Inadequate Warnings Not the Reason Behind Neglect of Safety

The court noted that there was no evidence presented that inadequate warnings to customers from Humble or any other flint supplier were the reason that operators like Spincote were often careless in conducting abrasive blasting and insufficiently motivated to provide for the safety of their workers. On the contrary, evidence had been provided that operators neglected safety despite their knowledge of the seriousness of silicosis and the standards, industrial and legal, for abrasive blasting. The two warnings Gomez did contend Humble should have given were of dangers well known, though largely unheeded, in the abrasive blasting industry. Therefore, the court concluded that flint suppliers like Humble had no duty to warn customers like Spincote and Sivalls that inhaling silica dust could be disabling and fatal and that workers must wear air-fed hoods; that information had long been commonly known throughout the industry. Blasting operators' disregard of the risks to their employees of inhaling silica dust was not for want of additional information that flint suppliers should have furnished, but for want of care.

Failure to Warn Gomez

The court also found, however, that it was equally well established on the record that the dangers of silica dust were not generally known to workers like Gomez employed in abrasive blasting operations. Workman, Spincote's foreman, testified that he had worked as a blaster for years before learning of the danger of silicosis. Gomez testified that when he first saw that word, he did not know what it meant and that he thought silica dust was like the dust he swept out of his garage. His and Workman's experiences were typical of the industry workforce.

Humble had every reason to believe that Spincote knew of the dangers of using flint in abrasive blasting, since they were common knowledge in the industry, and at least some reason to believe that Spincote would communicate its knowledge to Gomez, since it was required by law to do so, even though many such operators did not warn their employees. Therefore, the court found that it could not fairly be said that Humble had no reason to believe that abrasive blasting workers would be told the dangers of silica dust. Humble argued that this should be the end of the analysis.

Still, it was widely known that employers in the abrasive blasting industries were often remiss in communicating the dangers of silica dust to their employees. Referring to Restatement (Second) of Torts 388, it was noted that if another party ' such as operators like Spincote ' is known to be careless and inconsiderate, the supplier of hazardous products will have reason to think that its warnings will not get through to the workers. The question of the duty of a supplier to warn the end user then becomes a matter of comparing the magnitude of the risk against the burden imposed. Among the factors to be considered are the risks posed by the use of the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user ' here, on the label placed on the bag. Also to be included in the considerations are the social, economic, and political questions; the risk, foreseeability, and likelihood of injury; the social utility of the actor's conduct; the magnitude of the burden of guarding against the injury; the consequences of placing the burden on the defendant; and whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.

Based on the record before it, the court felt that it could not determine whether a duty should be imposed on flint suppliers like Humble to provide their customers' employees the limited warnings Gomez argued he should have been given. Still, the court was unpersuaded that the record held enough evidence to conclude that a duty to warn should not be imposed. That evidence would have to be brought out in a new trial.

The court also concluded that the burden was on Humble to demonstrate that, based on the factors the court set out here, the legal duty that a supplier ordinarily has to warn end users of product dangers should not be imposed on suppliers of flint in bags. This shifting of the usual burden of proof from the plaintiff ' who would normally be required to prove that a duty existed ' to the defendant ' who is now being asked to prove that it did not have a duty to Gomez and others in his situation ' was warranted, the court stated, because of three factors. First, in most situations, a supplier's duty to warn is assumed, and Humble had provided no proof that a warning on its bags would not have reached employees of their customers. Second, Humble was in a better position to discern how its product would be used in its numerous customers' workplaces than a worker in a single one of those workplaces would. And, finally, case law precedent had generally treated as a defense the argument that an intermediary absolved a product supplier of its duty to warn end users.

What the Decision Means

There was frustration on all sides when the decision came down. Lance Bradley, Gomez's attorney and a partner in Port Arthur, TX's McPherson, Monk, Hughes, Bradley, Wimberley & Steele, noted that “it took them 2 years since oral arguments to come back and say, 'We need more information.'” Mike Dotson, the principal in the Dotson Law Offices in Beaumont, TX, which represented Humble Sand and Gravel, pronounced the decision to be “not as clear-cut as it could have been.”

Dotson's statement just about summed it up: A supplier of raw materials in silica-related cases may or may not have a duty to warn its customers' employees. It all depends on the facts of the particular case. “As Justice Harriet O'Neill said in her dissent, “If I were Humble, I would surely appreciate the second chance ' but I wouldn't have a clue what to do.”

As it turns out, a second chance was all Humble needed. With the untimely and coincidental death of the primary plaintiff from a cause unrelated to his silica exposure, the case simply ran out of steam. “In light of Raymond Gomez's passing away due to a motor vehicle accident, it is virtually impossible to retry the case,” said plaintiff attorney Bradley, “so there will not be a new trial.”

Many questions remain for industry players. Although the plaintiff in Humble was tragically killed, bringing his lawsuit to a screeching halt, the questions the Texas Supreme court posed to the trial court remain as warnings to companies that sell blasting materials or other products that could be used by unwitting employees of so-called “sophisticated users” of those products. Compliance with OSHA and other industry standards may not be enough to protect companies from employees' lawsuits. Because of this, raw material suppliers should be advised to make more concerted efforts to reach the working man with the warnings their employers might never give.

An answer to the questions posed by Humble may still be forthcoming, however. In U.S. Silica v. Estate of Tompkins, No. 03-0195 (1/21/05), a case that involves a similar allegation ' that a flint supplier failed to warn its customer's end-user employees of the dangers of silica injury ' Texas' Supreme Court in January reversed an award of damages and remanded for determination of the same questions it posed to the Humble trial court.

Janice G. Inman, Esq. is editor-in-chief of this newsletter.

The nation's silica litigation attorneys and their clients kept a close watch on a case decided last year in Texas that was supposed to help define the limits of liability for failure to warn of silicosis danger. It took nearly 2 years for the Texas Supreme Court to finally issue its decision in Humble Sand & Gravel Inc. v. Gomez , 146 S.W.3d 170 (Tex. 2004), holding that flint supplier Humble Sand & Gravel Inc. had no duty to warn companies whose employees used the product for abrasive blasting that there were risks associated with silica dust in the workplace. The reason the court gave for its decision was that the risks of silica dust in the workplace had been known for years and companies that regularly dealt with blasting materials were “sophisticated users.”

What the court did not rule on was the second key question posed by the case: whether the “sophisticated user” doctrine would also relieve an abrasive material supplier of the duty to warn its customers' employees ' who work with the product and are thus vulnerable to inhalation diseases ' that exposure to silica dust can lead to serious disease and death and that they should wear protective equipment when working with the product. A decision on this issue, the court stated, would have to be determined at a new trial. Therefore, the court remanded to the 60th District Court in Beaumont for a new trial. The decision reversed Texas' Sixth District Court of Appeals holding, which had affirmed a more than $2 million judgment for Raymond Gomez and his two children.

So, what became of that second question the court didn't answer in September? Should preventive measures be taken by the industry to avoid a potential new source of liability?

The Plaintiff's Story

Raymond Gomez contracted silicosis while working at and around abrasive blasting (sandblasting) for about 6 1/2 years, from 1984-1987 and again from 1991-1994, at plants in Texas. He worked for Spincote Plastic Coating Co, a company that employed approximately 1400 people in various locations around the country. Spincote was in the business of using abrasive blasting to clean and condition oil field tubing. Abrasive blasting at Spincote's plants was done inside a building in an area called the blast house.

Gomez was hired to work at a job that did not involve blasting, but was performed in the dusty environment of the building. He was given only a disposable paper mask that was held against his face with rubber bands. After his first month, Gomez was moved to a job that did involve blasting. At that point, he was provided an air-fed hood in addition to the paper mask and was shown how to use the hood properly. However, when the workers went on breaks or were performing jobs other than abrasive blasting jobs, they routinely took off their protective hoods.

Humble, a small, family- owned and-operated business with eight employees located in Oklahoma, provided flint for Spincote's operation. The company began packaging and selling flint for abrasive blasting in 1982. Humble sold flint both in bulk and in 100-pound bags, and only to industrial customers. From the beginning, Ron Humble, who ran the business with his father, knew that breathing the silica dust generated by abrasive blasting could cause silicosis and that the disease could be fatal. He also knew that he should put some sort of warning label on the bags, and after making inquiries of OSHA and a trade organization that yielded him no useful information, he decided to copy the following label used by a competitor, Independent Gravel, a company he understood had been in business for more than 50 years: “Warning! May be injurious to health if proper protective equipment is not used.” In addition to the warning on its bags, Humble provided its customers a Material Safety Data Sheet (“MSDS”) as required by OSHA regulations. The MSDS suffered the same dual inadequacies as the bag label: It failed to emphasize the severity of the health hazard – that it could be fatal – and failed to specify that the respirator used should not just be “approved” but air-fed.

In 1993, Humble began using the following more extensive warning on its bags: “Warning. Breathing dust of this product causes silicosis, a seriously disabling and fatal lung disease. An approved and well-maintained air-supplied abrasive blasting hood must be worn at all times while handling and using this product. Follow all applicable OSHA standards.” Ron Humble testified that he had known all of the additional details in this warning since 1982, but had not included them earlier because he had simply copied Independent Gravel's warning.

Gomez testified that the first time he saw Humble's bags he noticed the warning labels they displayed and asked his foreman about them. His foreman replied that as long as Gomez wore his hood and mask, he would be all right. Gomez thought the phrase on Humble's label stating that the product could be “injurious to health” meant that dust rebounding off blasted surfaces could hurt when it struck the skin and was bad to breathe. The hood, he thought, was for protection from the flying dust and the paper mask was to prevent inhalation. Gomez testified that had he known how dangerous silica dust was, he never would have taken or kept a job working around it.

In November 1994, Gomez was diagnosed as having subacute silicosis due to a high exposure to silica dust. He left work at Sivalls Inc., where he was then working, and was never again employed in abrasive blasting. Gomez filed suit in Jefferson County against more than 20 defendants, including four suppliers of flint used as the abrasive in the blasting work, two suppliers of blasting equipment, 13 suppliers of protective gear worn by workers, and several job site owners. Gomez settled with all the defendants except Humble for a total of $389,200.

Known Risks of Silica Exposure

The parties all agreed that the health risks from inhaling silica dust had been well known for a very long time. Because of these hazards, OSHA regulations for abrasive blasting, originally promulgated in the early 1970s, require the use of respirators, or air-fed hoods, “constructed [to] cover the wearer's head, neck, and shoulders to protect him from rebounding abrasive.” These regulations also require employers to develop written procedures for selecting respirators, to instruct employees in their use, to keep respirators clean and well maintained, and to conduct frequent random inspections to ensure employee compliance.

Ken Gray, the general manager of the Spincote subsidiary in 1984, testified by deposition that it was Spincote's obligation to be aware of safety requirements, to provide a safe working environment including proper respiratory equipment, and to train its employees in safety procedures. He said that he relied on applicable regulations for safety information and not on any supplier's warning label. But Gray also testified that in 1982, when he took over Spincote, he did not know that inhaling silica dust could cause silicosis; he knew only that silica dust was a nuisance and that breathing it was not healthy. He had himself walked through the dusty blasting building as often as twice a day without wearing any respiratory protection. He wasn't sure of when he learned that inhaling silica could be fatal, saying at various times that it was as soon as the early 1980s or as late as December 1986.

Eldon Workman, a Spincote plant manager, testified by deposition that when he began working with silica products in the 1950s, he didn't know of their dangers, but that when he became Spincote's plant manager he understood that breathing silica dust could lead to silicosis and death, and that it was his responsibility to provide employees with this information. He said that Spincote's blasting employees were required to wear air-fed hoods, were reprimanded if they failed to do so, and were fired after three violations, but he wasn't asked why those working in an area contaminated with silica dust were not also required to wear such gear. Like Gray, however, Workman could not say definitely whether employees were ever told that inhaling silica dust could be fatal.

Outcome and Appeal

When Gomez's action against Humble went to trial in 1999, he had become licensed as a barber. Dr. Gary Friedman, board certified in internal medicine and occupational medicine, testified that while Gomez had suffered as yet few symptoms and no impairment, silicosis is a progressive disease, and given the extent and duration of his exposure, Gomez could expect significant disability within 8 years and full disability within 15 years. Dr. Friedman believed that Gomez, then 33, had a life expectancy of 20-25 years. The jury found that Gomez's injury was caused by Humble's unspecified negligence and awarded him damages of about $2 million.

On appeal, Humble did not challenge the jury's liability findings, including the inadequacy of its warning of the dangers of using flint in abrasive blasting. Rather, Humble argued that it had no duty to warn of those dangers because they were well known in the abrasive blasting industry; Humble sold only to industrial customers, and it was entitled to rely on those experienced industrial customers to provide their own employees (like Gomez) with all necessary information. A divided court of appeals rejected Humble's argument and affirmed the district court's judgment.

The Texas Supreme Court granted Humble's petition for review. (Shortly thereafter, Gomez died of injuries sustained in a car accident. The case went forward on behalf of other joined plaintiffs.) Humble renewed its argument that it was the plaintiff's employer, if anyone, who had the duty to warn Gomez. Gomez argued that regardless of anything Spincote should have done, Humble had a duty to warn him of two things: that inhaling silica dust could lead to disability and death, and that an air-fed hood should be worn around silica dust at all times. Employers like Spincote, Gomez contended, could not be relied on to provide these warnings.

Inadequate Warnings Not the Reason Behind Neglect of Safety

The court noted that there was no evidence presented that inadequate warnings to customers from Humble or any other flint supplier were the reason that operators like Spincote were often careless in conducting abrasive blasting and insufficiently motivated to provide for the safety of their workers. On the contrary, evidence had been provided that operators neglected safety despite their knowledge of the seriousness of silicosis and the standards, industrial and legal, for abrasive blasting. The two warnings Gomez did contend Humble should have given were of dangers well known, though largely unheeded, in the abrasive blasting industry. Therefore, the court concluded that flint suppliers like Humble had no duty to warn customers like Spincote and Sivalls that inhaling silica dust could be disabling and fatal and that workers must wear air-fed hoods; that information had long been commonly known throughout the industry. Blasting operators' disregard of the risks to their employees of inhaling silica dust was not for want of additional information that flint suppliers should have furnished, but for want of care.

Failure to Warn Gomez

The court also found, however, that it was equally well established on the record that the dangers of silica dust were not generally known to workers like Gomez employed in abrasive blasting operations. Workman, Spincote's foreman, testified that he had worked as a blaster for years before learning of the danger of silicosis. Gomez testified that when he first saw that word, he did not know what it meant and that he thought silica dust was like the dust he swept out of his garage. His and Workman's experiences were typical of the industry workforce.

Humble had every reason to believe that Spincote knew of the dangers of using flint in abrasive blasting, since they were common knowledge in the industry, and at least some reason to believe that Spincote would communicate its knowledge to Gomez, since it was required by law to do so, even though many such operators did not warn their employees. Therefore, the court found that it could not fairly be said that Humble had no reason to believe that abrasive blasting workers would be told the dangers of silica dust. Humble argued that this should be the end of the analysis.

Still, it was widely known that employers in the abrasive blasting industries were often remiss in communicating the dangers of silica dust to their employees. Referring to Restatement (Second) of Torts 388, it was noted that if another party ' such as operators like Spincote ' is known to be careless and inconsiderate, the supplier of hazardous products will have reason to think that its warnings will not get through to the workers. The question of the duty of a supplier to warn the end user then becomes a matter of comparing the magnitude of the risk against the burden imposed. Among the factors to be considered are the risks posed by the use of the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user ' here, on the label placed on the bag. Also to be included in the considerations are the social, economic, and political questions; the risk, foreseeability, and likelihood of injury; the social utility of the actor's conduct; the magnitude of the burden of guarding against the injury; the consequences of placing the burden on the defendant; and whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.

Based on the record before it, the court felt that it could not determine whether a duty should be imposed on flint suppliers like Humble to provide their customers' employees the limited warnings Gomez argued he should have been given. Still, the court was unpersuaded that the record held enough evidence to conclude that a duty to warn should not be imposed. That evidence would have to be brought out in a new trial.

The court also concluded that the burden was on Humble to demonstrate that, based on the factors the court set out here, the legal duty that a supplier ordinarily has to warn end users of product dangers should not be imposed on suppliers of flint in bags. This shifting of the usual burden of proof from the plaintiff ' who would normally be required to prove that a duty existed ' to the defendant ' who is now being asked to prove that it did not have a duty to Gomez and others in his situation ' was warranted, the court stated, because of three factors. First, in most situations, a supplier's duty to warn is assumed, and Humble had provided no proof that a warning on its bags would not have reached employees of their customers. Second, Humble was in a better position to discern how its product would be used in its numerous customers' workplaces than a worker in a single one of those workplaces would. And, finally, case law precedent had generally treated as a defense the argument that an intermediary absolved a product supplier of its duty to warn end users.

What the Decision Means

There was frustration on all sides when the decision came down. Lance Bradley, Gomez's attorney and a partner in Port Arthur, TX's McPherson, Monk, Hughes, Bradley, Wimberley & Steele, noted that “it took them 2 years since oral arguments to come back and say, 'We need more information.'” Mike Dotson, the principal in the Dotson Law Offices in Beaumont, TX, which represented Humble Sand and Gravel, pronounced the decision to be “not as clear-cut as it could have been.”

Dotson's statement just about summed it up: A supplier of raw materials in silica-related cases may or may not have a duty to warn its customers' employees. It all depends on the facts of the particular case. “As Justice Harriet O'Neill said in her dissent, “If I were Humble, I would surely appreciate the second chance ' but I wouldn't have a clue what to do.”

As it turns out, a second chance was all Humble needed. With the untimely and coincidental death of the primary plaintiff from a cause unrelated to his silica exposure, the case simply ran out of steam. “In light of Raymond Gomez's passing away due to a motor vehicle accident, it is virtually impossible to retry the case,” said plaintiff attorney Bradley, “so there will not be a new trial.”

Many questions remain for industry players. Although the plaintiff in Humble was tragically killed, bringing his lawsuit to a screeching halt, the questions the Texas Supreme court posed to the trial court remain as warnings to companies that sell blasting materials or other products that could be used by unwitting employees of so-called “sophisticated users” of those products. Compliance with OSHA and other industry standards may not be enough to protect companies from employees' lawsuits. Because of this, raw material suppliers should be advised to make more concerted efforts to reach the working man with the warnings their employers might never give.

An answer to the questions posed by Humble may still be forthcoming, however. In U.S. Silica v. Estate of Tompkins, No. 03-0195 (1/21/05), a case that involves a similar allegation ' that a flint supplier failed to warn its customer's end-user employees of the dangers of silica injury ' Texas' Supreme Court in January reversed an award of damages and remanded for determination of the same questions it posed to the Humble trial court.

Janice G. Inman, Esq. is editor-in-chief of this newsletter.