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From Products Liability Law Daily, March 24, 2014

Whether defective safety equipment caused worker’s silicosis goes to jury

By Pamela C. Maloney, J.D.

A worker who developed silicosis from overexposure to silica provided sufficient evidence to raise a question of fact as to whether allegedly defective safety equipment provided by named manufacturers and suppliers proximately caused his injuries, the Georgia court of appeals ruled. The court also determined that the evidence did not support a finding that, as a matter of law, the worker knew of the dangers of using certain protective gear made or supplied by these companies while sandblasting (Fouch v. Bicknell Supply Co., March 21, 2014, Miller, M.).

Background. Enrico Fouch was diagnosed with silicosis as a result of his overexposure to silica sand during the approximately 11 years he worked as a sandblaster. Mr. Fouch eventually received a double-lung transplant. He filed strict liability defective design and negligent failure to warn against Mine Safety Appliances Company, Bicknell Supply Company, and Miles Supply of Elberton, companies that manufactured or supplied safety equipment used by Fouch while sandblasting. The trial court granted Mine Safety’s motion for a summary judgment finding that (1) Fouch failed to present evidence showing the amount of exposure he experienced while using the company’s safety products, and (2) the companies had no duty to warn Fouch of the known risks associated with sandblasting. The worker appealed the trial court’s decision.

Proximate cause. In overruling the trial court’s decision, the appellate court found that worker did not have to establish exposure to a threshold amount of silica to prove causation. In cases involving toxic chemicals, a plaintiff “must offer proof of general causation—that exposure to a substance is capable of causing a particular injury or disease—and proof of specific causation—that exposure to a substance under the circumstances of the case contributed to his illness or disease.” The court pointed out that although both types of causation involved the question of the concentration levels to which the worker had been exposed, there was no specific requirement that the worker show specific air measurement readings or dosage amounts in order to establish causation. Instead, in toxic tort cases, proof of causation generally required reliable expert testimony that there was a reasonable probability that defendants’ conduct caused the injury. The court also noted that in a case involving multiple tortfeasors, there was no requirement that one company’s product must be the sole cause; instead, an individual’s conduct need only constitute a contributing cause.

The undisputed evidence showed that Fouch contracted silicosis as a result of his sandblasting employment. By definition, silicosis results only from an overexposure to silica. Therefore, the court concluded, Fouch did not have to establish that he was exposed to a specific threshold level of silica necessary to induce silicosis. In addition, expert testimony established that Fouch was not given an air-supplied hood—the only acceptable respirator recognized for use during abrasive sandblasting. According to Fouch’s experts, he was given only an air-supplied respirator, which allowed overexposure to the toxic chemical. This was enough evidence of specific causation to overcome Mine Safety’s summary judgment motion.

Duty to warn. The appellate court also determined that a question of fact remained as to whether these companies had a duty to warn Fouch of the dangers posed by sandblasting while using their safety products. Although manufacturers and distributors have no duty to warn of dangers that are obvious or generally known, there was a factual issue as to whether Fouch was aware of the specific risks of using the products at issue. A study, known as the Boeing Study, which was made publicly available in the 1970s, revealed that small employers were neither aware of nor fully appreciated the hazards of sandblasting or the potential for developing silicosis as a result of sandblasting. The supervisor who trained Fouch at his first place of employment wrongly believed that an air-supplied respirator and mask, as opposed to an air-supplied hood, were sufficient respiratory protection against the dangers of sandblasting with silica sand, while the person who trained Fouch at his second job site wore the same equipment as Fouch did when he sandblasted—meaning, according to Fouch’s experts, that both were subject to overexposure. It was undisputed that neither of Fouch’s employers supplied the proper equipment that would have adequately protected Fouch while he was sandblasting.

Fouch’s industrial hygienist expert also testified that small sandblasting companies like the two that employed Fouch, relied on manufacturers and suppliers of sandblasting products to provide accurate and complete information about the products. The experts testified that the warnings were inadequate to warn Fouch properly that their equipment should not be used for the type of sandblasting he was doing and, in fact, advertised their products for use in sandblasting and failed to warn that they should not be used for sandblasting. Thus, the trial court’s conclusion that Fouch was charged as a matter of law with the knowledge of the dangers of using the non-air-supplied hoods and respirators was not supported by the evidence.

The case number is A13A2252.

Attorneys: Ansel Franklin Beacham III (Law Office of Ansel Franklin Beacham) for Enrico Fouch. Jay M. Barber (Lewis, Brisbois, Bisgaard & Smith LLP) for Bicknell Supply Co.

Companies: Bicknell Supply Co.; Mine Safety Appliances Co.; Miles Supply of Elberton, Inc.

MainStory: TopStory WarningsNews DesignManufacturingNews IndustrialCommercialEquipNews ChemicalNews GeorgiaNews

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