DEPENDABLE ABRASIVES, INC.
COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF JONES COUNTY. DATE OF JUDGMENT: 06/19/2013. TRIAL JUDGE: HON. BILLY JOE LANDRUM. TRIAL COURT ATTORNEYS: SILAS W. MCCHAREN, EUGENE M. HARLOW, ROBERT ALLEN SMITH, JR., PATRICK C. MALOUF.
REVERSED AND RENDERED.
FOR APPELLANT: SILAS W. MCCHAREN, B. STEVENS HAZARD, SANDRA DENISE BUCHANAN, MATTHEW TOXEY VITART, EUGENE M. HARLOW.
FOR APPELLEE: DAVID NEIL MCCARTY, ROBERT ALLEN SMITH, JR., TIMOTHY W. PORTER, PATRICK C. MALOUF, JOHN TIMOTHY GIVENS.
BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., NOT PARTICIPATING.
¶1. Richard Pierce has a debilitating and deadly disease known as silicosis. Having worked for many years as a sandblaster, preparing surfaces for painting, Pierce sued, among multiple defendants, sellers of sand including Dependable Abrasives, alleging that Dependable's failure to provide adequate warnings of the dangers of the inhalation of respirable silica caused his silicosis and rendered Dependable strictly liable. The jury returned a verdict for Dependable Abrasives and the trial court granted Pierce a new trial. Aggrieved, Dependable Abrasives filed an interlocutory appeal in this Court. But, although the injury to Pierce was substantial, no causal link was established between the Dependable Abrasives product, Diamond Blast sand, and Pierce's injuries. As such, the jury's verdict was not against the overwhelming weight of the evidence. We therefore reverse and render.
FACTS AND PROCEDURAL HISTORY
¶2. Pierce worked as a sandblaster and painter from 1976 until 1992. According to Pierce's trial testimony, this involved a work week of five to seven days, depending on weather, and workdays of eight to ten hours. A sandblasting machine shoots out sand at a high rate of speed through a nozzle, which is wielded by the machine's user, in order to clean surfaces for painting. Pierce testified that the sand proceeds from the nozzle at a rate of 500 miles
per hour and that, when sand hits metal, it ricochets back in the direction of the machine's user. In 1992, Pierce changed careers to become a truck driver because he " couldn't stand the paint fumes." But in March of 2012, Pierce was making a delivery in New Orleans when suddenly he could not catch his breath. During a five-day hospital stay, Pierce was diagnosed with silicosis.
¶3. Dr. Steven Haber, a pulmonologist, testified at trial on behalf of Pierce, explaining that " [s]ilicosis is a disease of the lungs related to inhaling these crystalline silica particles" which are " like little shards of glass." He continued that the particles " get deep into the lung and they cause inflammation and then scar tissue. And it's the scar tissue that causes [the] disease silicosis." A " disabling disease," silicosis is " caused by breathing dust that contain[s] small pieces of crystalline silica." However, the " crystalline silica is so small that you can't see it with the naked eye. And it's like little shards of glass that will get into the lungs." Those " very small pieces get into the lungs and they get trapped in there. And they cut the lung and they scar the lung." But unfortunately, according to Dr. Haber, medicine has no cure for silicosis: " There's no stopping it. There's no slowing it down." He went on to say that the greater the respirable silica exposure, the greater the adverse effect on the lungs: " at the higher dose you get a much more exuberate response to the scar tissue." The dose to which Pierce was exposed " was substantial," according to Dr. Haber. As such, Dr. Haber estimated Pierce's life expectancy: " I certainly wouldn't be surprised if" Pierce were to die " in three or four years, but death " certainly would be likely" within seven years.
¶4. Industrial hygienist Dr. Vernon Rose described silica as a " silent killer," because it " provides no warning of any type to the individual who is going to be harmed." Rose, tendered as an expert witness in the field of industrial hygiene, continued: " And that is applicable to sand and especially the type of sand, the form of sand that can cause disease, which is different than the sand in your children's play box and sand box, if you will." Respirable silica " can't be seen." In fact, " these particles that get into. . . the worker's lungs [are] ten microns or less in diameter. Human hair is about 75 to 90 microns in diameter." In the context of sandblasting, where it strikes metal and fractures, the silica then becomes respirable, but " it has no taste" and " it has no odor," and therefore " the harmful form of the size of the sand has no warning properties."
¶5. Because silica is a " silent killer," companies producing sand warn users of the toxic and deadly nature of the product. Pierce called Dr. Edward Karnes, an expert in ergonomics, or the discipline " concerned with an evaluation of the human factors that are involved in the design and use of products, equipment, and facilities," to testify to the adequacy of warnings placed on Dependable Abrasives' sand. Dr. Karnes testified that manufacturers placing products in the marketplace " are in the best position to know about the hazards associated with their product." As such, manufacturers of products have an obligation to eliminate the hazard, to provide some type of guard against the hazard, or to warn users of the hazards. Dr. Karnes testified that the warning on Dependable Abrasives' product, Diamond Blast sand, was " [g]rossly inadequate," because, among other reasons, it failed to inform the user of the product of the latent, fatal danger of respirable silica.
¶6. The former president of the now-dissolved Dependable Abrasives, Inc., James Dickerson, was called at trial as an adverse witness by Pierce. Dickerson,
who had been owner and president of Dependable Abrasives from 1985 to 1998, testified that he sold Diamond Blast sand, which was marketed exclusively for sandblasting. Dickerson testified that he sold sand throughout Mississippi, Louisiana, and Alabama to eighty or ninety customers, but he had no sales receipts or records because they had been destroyed in a fire. According to Dickerson, eighty percent of his company's sand was sold in Louisiana, fifteen percent was sold in Mississippi, and five percent was sold in Alabama. Dickerson testified that, of the eighty or ninety customers to whom he sold, he personally knew ninety percent of them and had actually been to and delivered the sand to their work sites.
¶7. Dependable Abrasives bought the sand, processed it, " bagged it and sold it in bulk in tanker trucks." But Dependable Abrasives had not sold bagged sand until April of 1986: " [i]n the beginning it was mostly probably around 90 percent bulk sand; 10 percent bag sand. Eventually bagged sand grew to be about 20 percent." Dickerson testified that, while all his competitors sold white sand, he sold ...