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John Ulizio’s company sells sand. Just sand. It’s the second-most common substance on the earth-next to water. Sand is in everything from playgrounds to sidewalks, glass to golf courses. And it’s deadly. Or it can be, at least when fine particles of silica-a natural component in almost all forms of sand-are inhaled consistently over a long period of time, according to the International Agency for Research on Cancer. About 24,000 claims for such injuries, known as silicosis, are pending against Ulizio’s company, U.S. Silica. But it is uncertain whether those claims are viable-the vast majority of them were filed last year, mostly by industrial workers. One strict liability case against a different supplier, Haas v. Badger Mining Corp., No. 02-1681, was dismissed by the Wisconsin Supreme Court this summer. The problems associated with U.S. Silica’s challenges may be more pronounced because of an estimated 50,000 claims currently leveled against the sand industry. But other sellers of the most basic of products-including wood, water and soil-also face litigation over the language of their labels. Yet the question remains: Do disclaimers and warnings actually do anyone any good? “It’s called ‘sensory overload,’ ” said Cornell Law School Professor James A. Henderson Jr., who describes the failure to warn as “ the most mischievous of all legal doctrines.” If products contain too many warnings, the important information is lost amid a sea of other disclaimers, he said. The other problem, he said, is “putting ideas” into users’ heads, especially if using the product requires simple common sense. “It’s like saying, ‘don’t pound salt into your ear,’ ” he said. The type of product that U.S. Silica sells is almost everywhere. It is used to manufacture windows, swimming pools, concrete, tile and thousands of other products. And that’s part of the problem. “You can’t not use sand. You can’t manufacture glass without sand,” said Ulizio, who is an attorney and president of the 750-employee company in Berkeley Springs, W.Va. So what is a company like Ulizio’s to do when it sells a naturally occurring, ubiquitous product used in the manufacturing of so many of life’s necessities? “We have warned up and down the wazoo,” said Nathan Schachtman, one of U.S. Silica’s defense attorneys who practices with McCarter & English in Philadelphia. A 50-pound bag of the company’s stuff is plastered with warnings and disclaimers in three different languages. Whether purchasers speak French, Spanish or English, U.S. Silica hopes they’ll be duly notified of the dangers of sand. Ulizio is skeptical. “Even with all of those warnings on the bag, the company will still get sued by people who claimed they didn’t see the warning,” Ulizio said. ‘Sophisticated users’ But a strong contingent of the plaintiffs’ bar asserts that U.S. Silica and other sand companies are liable to sandblasters and other industrial workers. Part of their claims allege that the defendants should have informed its buyers, usually manufacturing companies, that workers should wear respirators when using the product. “They slapped a warning on certain bags they themselves say was ineffective,” said Mikal Watts, with the Watts Law Firm in Corpus Christi, Texas. He is serving as lead counsel in some of the claims. “They made little effort or no effort to let users know how to use a dangerous product,” he added. The sand suppliers, however, assert that customers were “sophisticated users” who knew of silica’s dangers and were responsible for warning their workers. Sufferers of silicosis, a condition similar to emphysema, mainly include construction workers, sandblasters and brick workers. U.S. Silica’s warning, in part, states that silica dust can cause silicosis and cancer. It also alerts users not to use the product for sandblasting. The company’s conundrum, brought about by its product’s common use and the hazards associated with it under certain conditions, means that lawsuits are just part of the costs-albeit expensive ones-of doing business, Henderson said. “A company would just have to treat a certain amount of it as background noise, as attacks on the enterprise,” he said. Henderson added that whether those lawsuits are successful is another matter, depending on the jurisdiction. “You can find a place that will listen where most others won’t,” he said. U.S. Silica is defending most of its actions in Texas and Mississippi. The lumber industry has also had its share of background noise. Wood apparently is not safe, at least the kind that’s been pressure treated. Nearly all lumber-90% by some estimates-used in construction and in furniture is treated with chemicals to keep it from rotting, and studies have shown that it can cause nasal cancer if the sawdust is inhaled. Viewed by some lawyers as the next asbestos-type litigation opportunity, dozens of cases were filed against makers and distributors of lumber treated with arsenic, a naturally occurring substance known to cause cancer. Most claims have failed. Last year, a federal judge in Miami declined to certify a class action in Jacobs v. Home Depot, 219 F.R.D. 549. Other tests have shown that sawdust from nontreated pine is harmful as well. In fact, purchasers of wood from two lumber companies can download a nine-page warning of the hazards of untreated pine. Water has not escaped litigation either. Nestle, the parent company of Poland Spring Natural Spring Water, earlier this year settled a class-action alleging that the bottled water’s label misled customers about whether the product was actually spring water derived from the Poland Spring in Maine, a source of water arguably healthier than that from the tap. Savalle v. Nestle, No. 03-CV-1204. Potting soil has its own set of caveats. Some bags warn that the product is intended only for consumers and not as a commercial growing medium. The reason? “Liability,” answered Robert LaGasse, executive director of the Mulch and Soil Council in Virginia. He explained that if a commercial grower uses potting soil designed for residential use, and a crop of bell peppers fails to flourish, the soil company could be responsible for the grower’s losses, without the warning.

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