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After a wait of almost two years, the Texas Supreme Court ruled 6-2 in a silicosis case that a flint supplier had no duty to warn a company whose workers engaged in abrasive blasting of the risks of working around silica dust because those risks had been commonly known for years. However, the court left unresolved a key issue in Humble Sand & Gravel Inc. v. Gomez, et al. — whether the “sophisticated user doctrine” — relieved the flint supplier of a duty to warn its customers’employees that inhaling silica dust can be fatal and that they should wear air-supplied protective hoods at all times when working around the dust. The court reversed a 2-1 decision by Texarkana’s 6th Court of Appeals, which had affirmed a more than $2 million judgment for Raymond Gomez and his two children, and remanded the case to the 60th District Court in Beaumont for a new trial. Texas Supreme Court Justice Nathan Hecht, author of the majority opinion, wrote: “We cannot determine from this record that a duty should be imposed on flint suppliers like Humble to provide their customers’ employees the limited warnings Gomez argues should have been given. … By the same token, we cannot say from the record that a duty to warn should not be imposed on flint suppliers.” The long-awaited decision draws criticism from attorneys for Gomez and Humble Sand, which petitioned the Supreme Court to review the case. “We’re almost at square one still,” says Lance Bradley, Gomez’s attorney and a partner in Port Arthur’s McPherson, Monk, Hughes, Bradley, Wimberley & Steele. “It took them two years since oral arguments to come back and say, ‘We need more information,’” Bradley says. Dallas attorney Michael Jung, a Strasburger & Price partner who represented Humble Sand on appeal, says this was the oldest argued case on the Supreme Court’s docket. The court heard arguments in the case on Oct. 30, 2002. “I think we’re pretty happy” with the result, Jung says. But Humble Sand attorney Mike Dotson, the principal in the Dotson Law Offices in Beaumont, Texas, says there is “another battle to be fought” with regard to a supplier’s duty to inform its customers’ workers about the risks involved in using a product. “It was not as clear-cut as it could have been,” Dotson says of the majority opinion. “Humble Sand has no duty to warn its customers, [but] that doesn’t end the story,” he adds. While the Supreme Court excused Humble from having to warn Gomez’s employer of the dangers, the court shifted the burden of proof to the defendant with regard to whether a warning should have been given to the end-users of the product. “We think the burden should have been on Humble to show that the warning Gomez contends flint suppliers should have given would not have been effectual,” Hecht wrote in the opinion. Whether a flint supplier had a duty to warn abrasive blasting operators’employees during the period when Gomez was employed depends on balancing several factors, the court held. Those factors are: the likelihood of serious injury from a supplier’s failure to warn; the burden on a supplier of providing a warning; the feasibility and effectiveness of such a warning; the reliability of employers to warn their employees; the existence and efficacy of other protections imposed by regulatory agencies; and the social utility of requiring, or not requiring, suppliers to warn. According to the opinion, the factors must apply industrywide, not just to this case. The issue, Hecht wrote for the majority, is whether the original manufacturer has “a reasonable assurance” that its warning will reach those endangered by using its product. In a dissenting opinion, Justice Harriet O’Neill wrote that by conflating duty and causation and combining select elements of different exceptions to a product supplier’s general duty to warn, the majority concludes that the case should be retried to allow Humble to prove that it owed no duty to workers such as Gomez. “If I were Humble, I would surely appreciate the second chance, but I wouldn’t have a clue what to do,” O’Neill wrote in dissent. The majority’s analysis raises a myriad of questions that “will likely prove to be problematic, at best, if not unanswerable,” O’Neill wrote. Justice Michael Schneider joined her in the dissenting opinion. Bradley and Dotson say it’s unlikely the case will be retried but decline further comment. DUTY TO WARN According to the Supreme Court’s majority opinion, Gomez, an oilfield equipment company employee who contracted silicosis while working around abrasive blasting in the 1980s and 1990s, sued Humble and approximately 20 other defendants — including suppliers of flint, suppliers of blasting equipment, suppliers of protective gear worn by workers and several jobsite owners — in 1995. Silicosis is a disease of the lungs. Gomez alleged in his petition to the 60th District Court that Humble failed to provide him adequate warning that he was at risk of contracting the disease unless he wore an air-fed protective hood at all times when working around silica dust. According to the Supreme Court’s majority opinion, the warning that Humble Sand placed on its bags of flint silica prior to 1993 read: “Warning! May be injurious to health if proper protective equipment is not used.” Gomez and his two children, who joined in the suit, settled with all of the defendants, except Humble Sand, for $389,200 and then obtained a $2 million judgment against Humble Sand in 1999 following a jury trial in the 60th District Court. Gomez subsequently died in a 2001 car crash. In June 2001, a divided 6th Court of Appeals held that Humble Sand’s sophisticated-user defense did not absolve the company from liability for failing to place adequate warnings about the risks of using silica on bulk bags containing its product. Justice Donald R. Ross wrote the majority opinion in which then-Justice Ben Z. Grant joined. William J. Cornelius, chief justice of the 6th Court at the time the case was considered, wrote in a dissenting opinion that evidence in the case showed Humble Sand furnished its product only to sophisticated users. As a matter of law, Humble Sand had no duty to warn Gomez of the risks of using the product, Cornelius wrote. The Supreme Court’s decision disappointed Texas Watch, a statewide consumer advocacy organization that had urged the high court in an amicus curiae brief not to adopt a broad sophisticated-user defense. “Bottom line, this decision potentially reduces the obligation for suppliers of dangerous products to warn hard-working Texas employees of the hazards posed by their products,” says Wendell Ware, an attorney and policy director for Texas Watch. “The court has given the supplier of a disabling and potentially deadly product another chance to avoid liability,” Ware says. Richard Faulk, author of an amici curiae brief submitted to the Supreme Court on behalf of the American Chemistry Council and the Texas Chemical Council, sees positives and negatives in the court’s decision. Faulk, a partner in and the environmental practice group leader at Houston’s Gardere Wynne Sewell, says the court’s recognition that sophisticated-user principles apply in an industrial setting is a welcome development. “Beyond that victory, however, the suppliers received no predictable assurance that their behavior in any particular case will or will not relieve them from liability,” Faulk says. Although the Supreme Court held that the existence of a duty was a question of law, the court also held that it did not have enough facts — despite a lengthy trial — to make a decision, Faulk says. And while the court held that proof of a legal duty and its violation generally was a part of the plaintiffs’ burden of proof, it shifted that burden in silicosis cases — and presumably in other toxic-tort cases — to the defendant to prove the reasonableness of relying on a knowledgeable intermediary or employer, he says. Faulk says the court’s decision is much more encouraging for chemical manufacturers, whose products are sold to industrial customers primarily in bulk shipments, such as tank trucks or barges, than for other types of suppliers, who supply products in bags or other packages. By making the “duty” decision depend upon the facts of each specific case, the Supreme Court majority makes defending such cases more complex than ever and assures that Texas trial and lower appellate courts will continue to grapple with the sophisticated-user issue for many years, while the Supreme Court can avoid the controversy, he says. The decision does guarantee that in Texas cases, suppliers can use sophisticated-user principles to develop records that may, under the proper circumstances, excuse them from liability, Faulk says. But he says their victory is neither complete nor comprehensive. “Instead, the Humble Sand decision sets the stage for protracted and unpredictable fact-intensive litigation,” Faulk says.

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