Humble Sand & Gravel v. Gomez, 06-00-00017-CV

• Decision Date: 12 June 2001
• Docket Number: No. 06-00-00017-CV,06-00-00017-CV
• Citation: 48 S.W.3d 487
• Parties: (Tex.App.-Texarkana 2001) HUMBLE SAND & GRAVEL, INC., Appellant v. RAYMOND GOMEZ, ET AL., Appellees
• Court: Texas Court of Appeals

Page 487

48 S.W.3d 487 (Tex.App.-Texarkana 2001)

HUMBLE SAND & GRAVEL, INC., Appellant v. RAYMOND GOMEZ, ET AL., Appellees

No. 06-00-00017-CV

Court of Appeals of Texas, Texarkana

Submitted Dec. 13, 2000

Decided June 12, 2001

On Appeal from the 60th Judicial District Court Jefferson County, Texas Trial Court No. A-152,368-A

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Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Justice Ross

Humble Sand & Gravel, Inc. appeals from a judgment awarding Raymond Gomez, et al., damages for personal injuries resulting from Gomez's use of a silica-based abrasive product (hereafter "silica flint" or "silica sand") supplied by Humble Sand. The jury found that the silica flint supplied by Humble Sand to Spincote, Gomez's employer, did not adequately warn users about the danger of the product. Humble Sand appeals to this Court, claiming that it had no duty to warn Gomez of the dangers of the silica flint because it only sold its product to sophisticated users. In the alternative, Humble Sand also contends that the trial court erred in preventing it from adequately presenting its causation defenses.

Gomez worked for Spincote at its facilities in Odessa and Corpus Christi from 1984 until 1987. Gomez performed abrasive blasting as part of his employment. Humble Sand supplied some of the abrasives used by Gomez. Gomez has subacute silicosis. Although he has no present impairment of lung function, he can no longer be exposed to dusty environments. Gomez presently works as a barber. Gomez would have become disabled from strenuous work within eight years, and he will become disabled from his current job within fifteen years. As a result of his exposure to silica dust, Gomez's life expectancy has been reduced by twenty to twenty-five years.

The connection between silica sand and silicosis has been well documented and known in the abrasives industry since the 1920's. Safety codes were enacted as early as 1938, and since the 1970's the Occupational Safety and Health Administration (OSHA) has required the use of air-supplied hoods for all employees engaged in abrasive blasting. OSHA also requires employers to develop operating procedures for the use of the protective hoods, to provide proper equipment to employees, to properly instruct employees on usage, and to ensure that the hoods are properly maintained and used. Spincote did not meet these standards.

Humble Sand packaged its silica flint in 100-pound bags. Humble Sand only sold its product to businesses using abrasive materials. Each bag contained a warning that stated:

WARNING!

MAY BE INJURIOUS TO HEALTH IF PROPER PROTECTIVE EQUIPMENT IS NOT USED.

Gomez testified that he saw this warning the first time he used a bag of the silica flint. He knew that breathing silica dust would be harmful, and he inquired about the proper safety precautions and followed the directions he was given. While blasting, Gomez wore an air-supplied hood with a paper dust mask underneath. Humble Sand's Material Safety Data Sheet, furnished to Spincote, recommended the use of air-supplied hoods for "eye protection." Gomez thought that the hood was to protect his face from the dangers of bounce-back particles, and he believed that the paper dust mask was for protection against nuisance dust. But the particles that penetrate the lungs are invisible to the naked eye, and an individual can inhale them without recognizing any danger. Humble Sand's Technical Fact Sheet, also furnished to Spincote, actually encouraged the reuse of the flint for blasting, which further breaks down the particles and caused Gomez even greater exposure because smaller particles are even more dangerous to the respiratory system. Humble Sand's Technical Fact Sheet did not mention silicosis or the harm that can result therefrom. At Spincote, the air-supplied hoses were too short, and the employees would remove their hoods while still in the dust-filled blast house. The hoods were also stored where dust collected in them, and there was testimony that the hoods were not in good condition.

Humble Sand's expert found that the warning on the bag did not inform Gomez that silica was an insidious, toxic hazard, about which the expert felt that Gomez had a right to be knowledgeable. In 1993, Humble Sand changed the warning on its bags of silica flint to read:

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.

Humble Sand was aware of the dangers of silicosis and the proper safety procedures when it placed the initial inadequate warning on its bags of silica flint. All of the knowledge imparted in the 1993 warning was known when Humble Sand first started selling silica flint in 1982.

Under Texas products liability law, the lack of adequate warnings renders a product defective or unreasonably dangerous. Munoz v. Gulf Oil Co., 732 S.W.2d 62, 65 (Tex. App. Houston [14th Dist.] 1987, writ ref'd n.r.e.). In a situation where a duty to warn has been created, that warning must impart special knowledge. If that special knowledge already exists, then further information is not necessary. Id. at 66.

Warnings must be generally given to the ultimate user or consumer. Dole Food Co. v. N. Carolina Foam Indus., Inc., 935 P.2d 876, 880 (Ariz. Ct. App. 1996); Natural Gas Odorizing v. Downs, 685 N.E.2d 155, 163 (Ind. Ct. App. 1997). The duty to warn is nondelegable. Downs, 685 N.E.2d at 163. However, courts have crafted several exceptions which permit delegation of the duty to warn or which limit the general obligation of a distributor to supply warnings to the ultimate user or consumer. Id. These exceptions are largely based on the Restatement (Second) of Torts § 388 (1965).¹ Id.

A manufacturer, as well as all suppliers of a product, has a duty to inform users of hazards associated with the use of its products. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 591 (Tex. 1986). In certain situations, a manufacturer or supplier may depend on an intermediary to communicate a warning to the ultimate user of a product. However, the mere presence of an intermediary does not excuse the manufacturer from warning those users whom it should reasonably expect to be endangered by the use of its product. Id.

Even under the learned intermediary standard, when a warning to an intermediary is inadequate or misleading, the manufacturer remains liable for injuries sustained by the ultimate user. Id.; Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801 (Tex. 1978). The manufacturer must also have a reasonable assurance that the warning will be communicated to the ultimate user by the intermediary. Alm, 717 S.W.2d at 591-92; John Deere Co. v. May, 773 S.W.2d 369, 379 (Tex. App. Waco 1989, writ denied). The existence of a physician-patient relationship is crucial to the application of the learned intermediary doctrine. See Wyeth-Ayerst Labs. Co. v. Medrano, 28 S.W.3d 87, 93 (Tex. App. Texarkana 2000, no pet.); Khan v. Velsicol Chem. Corp., 711 S.W.2d 310, 313 (Tex. App. Dallas 1986, writ ref'd n.r.e.). Such a relationship does not exist in the situation at hand.

The pivotal inquiry of whether the sophisticated user defense is available is a fact-specific evaluation of the reasonableness of the supplier's reliance on the third party to provide the warning. Adkins v. GAF Corp., 923 F.2d 1225, 1230 (6th Cir. 1991). For the sophisticated user exception to apply, the intermediary must have knowledge or sophistication equal to that of the manufacturer or supplier, and the manufacturer must be able to reasonably rely on the intermediary to warn the ultimate consumer. Downs, 685 N.E.2d at 164. Reliance is only reasonable if the intermediary knows or should know of the product's dangers. Id. Actual or constructive knowledge may arise where either the supplier has provided an adequate explicit warning of such dangers or information of the product's dangers is available in the public domain. Id. Reliance on constructive knowledge, rather than actual knowledge, of the intermediary is more problematic in instances where the dangers of a product are more severe. Id. at n.13. The danger of silicosis is death.

A supplier does not fully discharge its duty by instructing and warning an employer. The supplier must give adequate instructions and warnings to the employees who actually use the product, if there is a practical means to do so. Khan, 711 S.W.2d at 316. A supplier may not be relieved from liability even if the employer has full knowledge of the danger. Id.; see Rourke v. Garza, 530 S.W.2d 794, 801 (Tex. 1975). When the supplier does not provide the product in bulk, but in containers that can be expected to reach the employees that use the product, the warnings and instructions on the label must be adequate. Khan, 711 S.W.2d at 316. It has been established, and not challenged in this appeal, that the warning Humble Sand placed on its bags during the relevant period was not adequate. Humble Sand's expert testified that Gomez had the right to be told that the silica in the dust could cause death. The expert also testified that Humble Sand had an obligation to warn Gomez about the hazards of its product. The ultimate consumer has to at least be put on notice of the dangers by a warning. The warning used here did not accomplish this. This is especially important considering that silica is an insidious danger which is not obvious to those, like Gomez, who worked with the silica flint.

Under the Restatement view, a court focuses on the conduct of the supplier of the dangerous product, not on the conduct of the intermediary. Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d 445, 464 (Md. 1992). Proof that...