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From Products Liability Law Daily, January 30, 2015

No evidence linking deadly silicosis to sandman’s product

By Pamela C. Maloney, J.D.

A sandblaster failed to prove by a preponderance of the evidence that the sand he used in the course of preparing surfaces for painting had been supplied by Dependable Abrasives and that, therefore, there was a causal link between the sand and his silicosis, the Mississippi Supreme Court held, reversing the trial court’s grant of a new trial on the sandblaster’s failure-to-warn-claim (Dependable Abrasives, Inc. v. Pierce, January 29, 2015, Kitchens, J.).

Background. Richard Pierce, had been employed as a sandblaster and painter from 1976 until 1992. In the course of his work as a sandblaster, Pierce was exposed to the silica dust that was created when sand shot out of the sandblasting machines he used to prepare surfaces for painting. The sand, or silica dust particles, ricocheted off metal surfaces back in his direction and was inhaled. The silica dust particles lodged in his lungs, causing inflammation and then scar tissue that led to the development of silicosis, a disabling and deadly lung disease. Pierce sued a number of sellers and distributors of the sand, including Dependable Abrasives, alleging that Dependable was liable for his injuries because the company’s failure to provide adequate warnings of the dangers of the inhalation of respirable silica on its Diamond Blast sand bags caused his silicosis.

Procedural history. Following a jury verdict in favor of Dependable, the trial court granted Pierce a new trial on the ground that the jury’s finding that Dependable did not have a defective product because the company provided an adequate warning was against the overwhelming weight of the evidence. Dependable filed an interlocutory appeal to the Mississippi Supreme Court challenging the grant of a new trial on a number of issues. The state high court addressed a single dispositive issue, which was whether the overwhelming weight of the evidence presented at trial supported the grant of a new trial to the sandblaster in light of Dependable’s assertion that the sandblaster had never been exposed to its product.

Identification of product. The high court stressed that product exposure was a threshold question in a products liability case and that even accepting as true the sandblaster’s allegation that the warnings on Dependable’s sand were “grossly inadequate,” as postulated by the sandblaster’s ergonomics expert, there could be no recovery if the sandblaster failed to prove that the inadequate warnings caused his injuries.

The sandblaster testified that he had used several sands throughout his career and that he had recognized the Diamond Blast bag and logo. However, he could not recall where or when he had used or had been exposed to Diamond Blast sand. In addition, although he had been able to identify Dependable’s product, he could not correctly identify the sand itself, which he testified was white in color but was instead distinctly brown in color.

In rebuttal, Dependable’s former president testified that its sand had not been sold in bags until 1986 and that the company had never sold sand to any of the companies which had employed the sandblaster. In addition, the former president testified that Dependable had never shipped any of its sand to the states in which the sandblaster had worked. Based on the evidence, the court determined that the worker could have been exposed to sand supplied by Dependable only for a short period from April until November of 1986 and again during short periods of time in 1991 and 1992.

Based on this conflicting evidence, the Mississippi Supreme Court concluded that in ordering a new trial on the failure-to-warn, the trial court failed to analyze whether the jury’s determination of causation was against the overwhelming weight of the evidence. Because the sandblaster failed to provide sufficient evidence from which the jury reasonably could have concluded that he had been exposed to any appreciable amount of silica from Dependable’s products, he failed to prove by a preponderance of the evidence that Dependable’s Diamond Blast sand caused his silicosis. Thus, the jury’s verdict in favor of Dependable was not against the weight of the evidence, and the trial court’s grant of a new trial was reversed and the jury’s verdict reinstated.

The case is No. 2013-IA-01162-SCT.

Attorneys: Silas W. McCharen (Daniel Coker Horton & Bell, PA) for Dependable Abrasives, Inc. David Neil McCarty (David Neil McCarty Law) for Richard Pierce.

Companies: Dependable Abrasives, Inc.

MainStory: TopStory SCLIssuesNews WarningsNews BuildingConstructionNews ChemicalNews MississippiNews

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