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Suits blast sand suppliers for failing to warn of silica hazard.

Roger Bergfeld worked for John Deere's Dubuque, Iowa, foundry for over 14 years. His job, at various times, included melting iron, transferring the molten iron from the furnace to the production line, and testing the molds used for casting metals. When workers use sand to create, re-create, and recycle the molds, the sand fractures into fine particles containing high levels of silica and becomes airborne. The dust spreads throughout the foundry.

Though Bergfeld did not handle sand directly, the silica dust was in his working environment. John Deere did not provide respiratory protection devices to employees whose exposure was below "permissible" exposure limits set by the Occupational Safety" and Health Administration (OSHA)--so Bergfeld inhaled silica dust for 14 years. He now suffers from silicosis, a sometimes fatal disease in which fibrous growths develop in the lungs and slowly deteriorate the tissue.

Bergfeld sued the company that supplied the sand to his foundry, claiming it failed to warn him and other workers exposed to silica dust of the risks of developing silicosis. Though ultimately unsuccessful, the suit challenged the sufficiency of the OSHA standards for silica exposure--and employment lawyers say that argument holds promise for future litigation.

Injured workers around the country have filed lawsuits, claiming that warnings of the silica danger remain inadequate and that many workplaces do not have appropriate safety measures in place. Most workers who develop silicosis from workplace exposure cannot sue their employers (they are restricted to filing workers' compensation claims), but many are turning to the tort system to hold third-party suppliers of sand liable for injuries.

Claims against suppliers generally focus on failure to warn. The earliest warnings of the hazards of silica dust emerged in the 1970s and 1980s, but they were not common until the 1990s. When suppliers did issue warnings, they were often inadequate, the workers allege: Some were on large bags in small print, not noticeable to workers. Others were printed on shipping documents or other paperwork not provided to workers handling the sand.

One plaintiff's failure-to-warn case against a sand supplier went to trial last year in Texas. Harrell Horton developed a fatal form of silicosis alter working as a sandblaster--another occupation with high silica dust exposure--in the 1960s and 1970s. After the jury indicated that it would award substantial damages for medical expenses and, possibly, pain-and-suffering and punitive damages as well, the defendant settled. (Horton v. Lone Star Indus., Inc., No. 01-04284 H (Tex., Nueces County Dist. Ct. settled Feb. 28, 2003).)

"It was a great case from a warnings standpoint," said Horton's attorney, Jason Gibson of Houston. "During that time period, none of the companies that were involved with supplying products for that trade had any warnings."

Sophisticated-user defense

In several recent cases, defendants have argued that because the dangers of silica are well known in industries that use sand, employers such as foundries and sandblasting companies are "sophisticated users" that have a duty to warn their employees, relieving the suppliers of liability for injuries. The Eighth Circuit and several state appeals courts have agreed in cases involving foundry work, but this defense has not succeeded in cases brought by injured sandblasters.

Foundries are considered knowledgeable because of the long history of silicosis in that industry. In 1915, the American Foundrymen's Society first published standards for foundry safety, recommending that workers always wear respirators when exposed to silica dust. The organization has also coordinated efforts to educate workers about the disease. This history was evidence enough to convince the Eighth Circuit to rule in favor of the supplier in Bergfeld's case, based on the sophisticated-user doctrine, earlier this year.

In his suit, Bergfeld conceded that his exposure was within OSHA's permissible limits but argued that the supplier had a duty to warn him that there was still a risk of contracting silicosis at low exposure levels. The defense argued that John Deere's foundry was a large, well-established operation that had extensive knowledge of the dangers of silica exposure. The trial court agreed and granted summary judgment. The Eighth Circuit affirmed, noting that other courts, including the Third Circuit, had held that foundries were sophisticated users. (Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003).)

At least two state appeals courts have followed Bergfeld. (Gray v. Badger Mining Co., 664 N.W.2d 881 (Minn. Ct. App. 2003); Haase v. Badger Mining Co., No. 02-1681, 2003 WL 21800493 (Wis. Ct. App. Aug. 6, 2003).)

The outcome has been different in cases involving the sandblasting industry. Unlike foundry work, sandblasting is usually done by small companies, often by subcontractors--some self-employed--who move from work site to work site as needed. Courts generally have not considered these intermediaries knowledgeable enough about the dangers of silica dust to be "sophisticated users."

"In sandblasting, the concentration and exposures to silica are tar greater than in a foundry," said Bergfeld's attorney, Mike Martin of Houston, who has handled both kinds of cases.

Two Texas appellate courts have ruled that the sophisticated-user doctrine does not relieve sand suppliers of their duty, to warn workers in the sandblasting industry. The plaintiff in the first case, Raymond Gomez, worked for Spincote, a midsize company, sandblasting oil-field pipes in Odessa and Corpus Christi. After three years of exposure to dust from silica-based flint, he developed silicosis and sued the sand supplier.

Gomez "actually saw the bags [of flint] and read the warning and relied on the warning," said his lawyer, Lance Bradley of Port Arthur. "The jury found that warning to be inadequate." Although the warning recommended that workers use protective equipment, Gomez thought it referred to eye protection and argued that neither Ire nor his employer knew the dust could cause lung disease.

The jury found for Gomez, and the supplier appealed, arguing that the sophisticated-user doctrine relieved it of liability. The appellate court disagreed. "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 ...," the court wrote. "Reliance is only reasonable if the intermediary knows or should know of the product's dangers." (Humble, Sand & Gravel, Inc. v. Gomez, 48 S.W.3d 487, 495 (Tex. Ct. App. 2001).)

The case is currently on appeal to the Texas Supreme Court. Oral arguments were made in October 2002, and at press time a decision had not yet been handed down.

Also in 2002, a second state appeals court heard similar arguments in a case brought by the family of Donald Tompkins, a sandblaster who died of silicosis. He had worked for several abrasive-blasting companies over three decades. After his death, Iris family sued U.S. Silica for failing to include a warning on the bags of sand it supplied to Tompkins's employers.

The company appealed the judgment for the family, citing the sophisticated-user doctrine. It also argued that because Tompkins allegedly did not heed the warnings on bags of sand provided by other companies, he presumably would not have heeded warnings if U.S. Silica had provided them in the 1960s and 1970s. The Court of Appeals disagreed, pointing to the small size of the companies Tompkins worked for and their lack of written safety materials or training programs for employees. (U.S. Silica Co. v. Tompkins, 92 S.W.3d 605 (Tex. Ct. App. 2002).)

Conflicting standards

Plaintiffs have raised several questions in arguing against the sophisticated-user doctrine: How knowledgeable must an employer be to be considered a sophisticated user? Although foundries may be well aware of the dangers of silica, what levels of exposure are safe?

In 1972, OSHA adopted formal standards setting the maximum exposure level for silica dust at 100 micrograms per cubic meter, averaged over a 10-hour workday. Two years later, the National Institute for Occupational Safety and Health (NIOSH) reported research on silica dust hazards and recommended a maximum exposure level of 50 micrograms. OSHA did not revise its regulation at the time, but in May 2002, the agency admitted that the standard was insufficient and announced an intention to revise it.

Workers' lawyers say OSHA's announcement raises questions important to silica litigation: Does a sand supplier have a duty to warn foundries and their employees that the agency's own standard is inadequate? If an employer does not know of the lower exposure level recommended by NIOSH, does that company quality as a knowledgeable, sophisticated user?

Martin raised this issue in Bergfeld. "Air sampling surveys ... revealed that the exposures [in Bergfeld's workplace] were not exceeding the OSHA standard, but they did exceed the NIOSH standard. So our argument was that the sand companies have a duty to warn that the current OSHA standard may not be safe, that there is a lower standard."

The argument was unsuccessful because the defense uncovered an early deposition of the foundry's industrial hygiene manager who said he knew of the NIOSH standard (though admissibility of this evidence was disputed). Still, Martin and other attorneys handling silica dust litigation think this argument holds promise for other cases.

Is there a safe level?

As for sandblasting, the 1974 NIOSH report advised against silica-based abrasives: "Uncontrolled abrasive blasting with silica sand is such a severe silicosis hazard that special attention must be given to this problem. Silica sand, and other materials containing more than l percent free silica, should be prohibited as an abrasive substance in abrasive-blasting cleaning operations." Several countries in Europe have already prohibited using sand for that purpose.

"Alternative abrasives are available that don't contain silica," said Martin. "The argument by NIOSH is that even when sandblasting with the appropriate protective equipment, you're not going to be protected fully from silica."

Sand suppliers have lobbied against initiatives to restrict the use of sand for three decades. "Meanwhile, we're still seeing a disease that has caused thousands, if not hundreds of thousands, of deaths over the years," Martin said. "We are still seeing this disease today because we haven't made fundamental changes."
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Author:Jurand, Sara Hoffman
Publication:Trial
Date:Dec 1, 2003
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