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BRIEF OF AMICI CURIAE

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					                                     NO. 03-0195

                     IN THE SUPREME COURT OF TEXAS
______________________________________________________________________________

                                 U.S. SILICA COMPANY
                                         Petitioner

                                         v.

             ESTATE OF DONALD TOMPKINS, RUBY L. TOMPKINS,
                  DAWN MALDONADO, AND SHERRY LOPEZ
                                 Respondents.
______________________________________________________________________________

                          On Petition for Review from the
               Court of Appeals for the Ninth Judicial District of Texas
______________________________________________________________________________

                        BRIEF OF AMICI CURIAE
              COALITION FOR LITIGATION JUSTICE, INC. AND
                AMERICAN TORT REFORM ASSOCIATION
                      IN SUPPORT OF PETITIONER
______________________________________________________________________________

SHERMAN JOYCE                                      MANUEL LÓPEZ*
American Tort Reform Association                   State Bar No. 00784495
1101 Connecticut Avenue, N.W.                      ROBERT W. COWAN
Suite 400                                          State Bar No. 24031976
Washington, D.C. 20036                             Shook, Hardy & Bacon L.L.P.
(202) 682-1163                                     600 Travis, Suite 1600
 (202) 682-1022 (telecopy)                         Houston, Texas 77002-2911
                                                   (713) 227-8008
PAUL W. KALISH                                     (713) 227-9508 (telecopy)
MARK D. PLEVIN
Crowell & Moring LLP                               VICTOR E. SCHWARTZ
1001 Pennsylvania Avenue, N.W.                     LEAH LORBER
Washington, D.C. 20004                             Shook, Hardy & Bacon L.L.P.
(202) 624-2500                                     600 14th Street, N.W., Suite 800
(202) 628-5116 (telecopy)                          Washington, D.C. 20005
                                                   (202) 783-8400
OF COUNSEL                                         (202) 783-4211 (telecopy)

                                                   ATTORNEYS FOR AMICI CURIAE
                                                   * COUNSEL OF RECORD
                                            TABLE OF CONTENTS

                                                                                                                         Page

TABLE OF AUTHORITIES......................................................................................                iii
STATEMENT OF INTEREST ..................................................................................                   1
SUMMARY OF THE ARGUMENT.........................................................................                           2
ARGUMENT..............................................................................................................     3
         I.        SILICA LITIGATION: WHERE IT STANDS NOW.........................                                         3

         II.       THE LESSONS OF ASBESTOS LITIGATION.................................                                     5

         III.      THE “SOPHISTICATED USER” DOCTRINE PROVIDES A
                   TRADITIONAL AND SOUND RULE FOR SILICA CASES...........                                                  7

                   A.        Application Of An Objective Sophisticated User
                             Doctrine In Silica Sand Cases Is Consistent With
                             Texas Law and Sound Public Policy.........................................                   10

                             1.        Silicosis Hazards Associated With Abrasive
                                       Sandblasting And Other Industrial Sand Uses
                                       Have Been A Matter of Common Knowledge
                                       In The Industry For Decades..........................................              13

                             2.        The Objective Sophisticated User Standard
                                       Should Apply To Both Large And Small
                                       Industrial Sand Intermediary Users................................                 15
                    3.        Even If The Court Adopts A Subjective
                              Knowledge Rule, Mr. Tompkins’s Employers
                              Possessed Sufficient Expertise To Be
                              Characterized As “Sophisticated”
                              Intermediary Users .........................................................         17

          B.        Objective Application Of The Sophisticated User
                    Doctrine Places Responsibility For Workplace
                    Safety On The Party Best Suited To Communicate
                    An Effective Warning: Mr. Tompkins’s Employers. ................                               20

PRAYER .........................................................................................................   22


CERTIFICATE OF SERVICE........................................................................                     24




                                                       ii
                                  TABLE OF AUTHORITIES

                                                                                                     Page

CASES

Alm v. Aluminum Co. of Am.,
       717 S.W.2d 588 (Tex. 1986) ............................................................       20

Amchem Prods. v. Windsor,
     521 U.S. 591 (1997) .........................................................................   6

American Tobacco Co. v. Grinnell,
      951 S.W.2d 420 (Tex. 1997) ............................................................ 8, 16-17

Bean v. Baxter Healthcare Corp.,
      965 S.W.2d 656
      (Tex. App.—Houston [14th Dist. 1998, no pet.) .............................                    11

Bergfeld v. Unimin Corp.,
      226 F. Supp. 2d 970 (N.D. Iowa 2002) ............................................              11, 22

Bergfeld v. Unimin Corp.,
      319 F.3d 350 (8th Cir. 2003)............................................................       11, 14

Cason v. E.I. DuPont de Nemours & Co.,
      No. 01-94-01191-CV, 1997 WL 69858)
      (Tex. App.—Houston [1st Dist.] 1997, pet. denied)
      (not designated for publication) .......................................................       17

Caterpillar, Inc. v. Shears,
      911 S.W.2d 379 (Tex. 1995) ............................................................ 8, 12, 13

Crook v. Kaneb Pipe Line Operating P’ship, L.P.,
      231 F.3d 1098 (8th Cir. 2000)..........................................................        9, 11

Damond v. Avondale Indus., Inc.,
     718 So. 2d 551 (La. Ct. App. 1998) ................................................. 9, 12, 20

Davis v. Avondale Indus., Inc.,
      975 F.2d 169 (5th Cir. 1992)............................................................       11



                                                 iii
Dresser Indus., Inc. v. Lee,
      880 S.W.2d 750 (Tex. 1993) ............................................................    9, 13

Duncan v. Cessna Aircraft Co.,
     665 S.W.2d 414 (Tex. 1984) ............................................................     20

Goodbar v. Whitehead Bros.,
     591 F. Supp. 552 (W.D. Va. 1984)
     aff’d, Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985) ........................ passim

Gray v. Badger Mining Corp.,
      664 N.W.2d 881 (Minn. Ct. App. 2003) ..........................................            12, 14

Gray v. Manitowoc Co.,
      771 F.2d 866 (5th Cir. 1985)............................................................   12

Haase v. Badger Mining Corp.,
      No. 02-1681, 2003 WL 21800493
      (Wis. Ct. App. Aug. 6, 2003)
      (not designated for publication) .......................................................   12, 14

Helene Curtis Indus. Inc. v. Pruitt,
      385 F.2d 841 (5th Cir. 1967)............................................................   11

Higgins v. E.I. DuPont de Nemours & Co.,
      671 F. Supp. 1055 (D. Md. 1987) ....................................................       11

Hill v. Wilmington Chem. Corp.,
        156 N.W.2d 898 (Minn. 1968).........................................................     19

Humble Sand & Gravel, Inc. v. Gomez, 48 S.W.3d 487
     (Tex. App.—Texarkana 2001, pet. granted) .................................... passim

Joseph E. Seagram & Sons, Inc. v. McGuire,
      814 S.W.2d 385 (Tex. 1991) ............................................................    8

Martinez v. Dixie Carriers, Inc.,
      529 F.2d 457 (5th Cir. 1976)............................................................   11

Munoz v. Gulf Oil Co., 732 S.W.2d 62
     (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.)...............                     11



                                               iv
Phillips v. A.P. Green Refractories, Co.,
       630 A.2d 874 (Pa. Super. Ct. 1993) ................................................. 12, 15, 20

Sadowski v. Long Island R.R. Co.,
     55 N.E.2d 497 (N.Y. 1944) ..............................................................          13

Sara Lee Corp. v. Homasote Co.,
      719 F. Supp. 417 (D. Md. 1989) ......................................................            11

Sauder Custom Fabrication, Inc. v. Boyd,
      967 S.W.2d 349 (Tex. 1998) ............................................................ passim

Singleton v. Manitowoc Co.,
       727 F. Supp. 217 (D. Md. 1989) ......................................................           12, 20

Smith v. Walter C. Best, Inc.
       927 F.2d 736 (3d Cir. 1990) ............................................................. passim

Swayze v. McNeil Labs., Inc.,
      807 F.2d 464 (5th Cir. 1987)............................................................         17

U.S. Silica Co. v. Tompkins,
       92 S.W.3d 605 (Tex. App.—Beaumont 2002, pet. filed) ................ passim

Urie v. Thompson
       337 U.S. 163 (1949) .........................................................................   13

Wyeth-Ayerst Labs. Co. v. Medrano,
      28 S.W.3d 87 (Tex. App.—Texarkana 2000, no pet.) .....................                           17


PUBLICATIONS

Mark A. Behrens, Some Proposals for Courts Interested in
     Helping Sick Claimants and Solving Serious Problems
     in Asbestos Litigation, 54 Baylor L. Rev. 331 (2002) .....................                        6

Hon. Griffin B. Bell, Asbestos Litigation and Judicial
      Leadership: The Courts' Duty to Help Solve The
      Asbestos Litigation Crisis, Briefly, Vol. 6, No. 6,
      June 2002 (Nat’l Legal Center for the Pub. Interest
      monograph), available at <http://www.nlcpi.org>
      (last visited Sept. 24, 2003) ..............................................................     5

                                                   v
Alex Berenson, A Surge in Asbestos Suits, Many by Health
      Plaintiffs, N.Y. Times, Apr. 10, 2002, at A1 ..................................                 6

Jennifer Biggs et al., Overview of Asbestos Issues and Trends 3
       (Dec. 2001), <http://www.actuary.org/mono.htm>
       (last visited Sept. 24, 2003) ..............................................................   6

Bureau of Labor Statistics, U.S. Dep’t of Labor, National Census
      of Fatal Occupational Injuries in 2002, Sept. 17, 2002, at 7...........                         4

Stephen Carroll et al., Asbestos Litigation Costs and Compensation:
      An Interim Report 20 (RAND Inst. for Civil Justice, Sept. 2002) ...                             6

Stephen Carroll & Deborah Hensler,
      Facts and Figures About Asbestos Litigation:
      Highlights from the New Rand Study
      (RAND Inst. for Civil Justice, Jan. 2003) ........................................              6

Centers for Disease Control and Prevention, Extreme Heat,
      http://www.cdc.gov/nceh/hsb/extremeheat/
      (last visited Sept. 24, 2003) ..............................................................    4

Christopher Edley, Statement, The Fairness in
       Asbestos Compensation Act of 1999:
       Legislative Hearing on H.R. 1283,
       Before the House Comm. on the Judiciary,
       106th Cong. 4 (July 1, 1999) ...........................................................       6

Jonathan D. Glater, Suits on Silica Being Compared to
      Asbestos Cases, N.Y. Times, Sept. 6, 2003, at C1...........................                     3

Normal L. Haase,
     Current Silica Landscape—The
     Jurisdictions, Defendants and Beyond,
     Vol. 1, No. 6 Mealey’s Litig. Rep.: Silica 19 (1997) .......................                     5

Increase in Screening for Silica Exposure Victims in Texas,
      Vol. 1, No. 2 Mealey’s Litig. Rep. 31 (2002) ..................................                 5

Ingredients Might Be In Place To Make Silica The Next Asbestos,
      Best’s Ins. Wire, Sept. 10, 2003.......................................................         3


                                                  vi
Medical Monitoring and Asbestos Litigation--
      A Discussion with Richard Scruggs and Victor Schwartz,
      17 Mealey’s Litig. Rep.: Asbestos (Mar. 1, 2002)...........................                      4

Nat’l Inst. for Occupational Safety and Health
       U.S. Dep’t of Health and Human Servs.,
       Work-Related Lung Disease Surveillance
       Report 2002 (2002). .........................................................................   4

Restatement (Second) of Torts § 388 (1965) ............................................. passim

Restatement (Third) of Torts § 2, 5 (1997) .................................................           10, 12

Paul F. Rothstein, What Courts Can Do In The Face of The
       Never-Ending Asbestos Crisis, 71 Miss. L. J. 1 (2001) ...................                       6

Victor E. Schwartz & Leah Lorber, A Letter to the Nation’s
       Trial Judges: How the Focus on Efficiency Is Hurting You
       and Innocent Victims in Asbestos Liability Cases,
       24 Am. J. of Trial Advoc. 248 (2000)..............................................              7

Victor E. Schwartz & Rochelle M. Tedesco, The Law of Unintended
       Consequences in Asbestos Litigation,
       71 Miss. L.J. 531 (2001)...................................................................     7

Victor E. Schwartz & Russell W. Driver,
       Warnings in the Workplace: The Need For
       A Synthesis Of Law And Communication Theory,
       52 U. Cin. L. Rev. 38 (1983)............................................................        22

Pamela Sherrid, Looking for Some Million Dollar Lungs,
      U.S. News & World Rep., Dec. 17, 2001 ........................................                   5

Bob Sherwood, Weighing the risk from food and phones,
      Fin. Times, Apr. 28, 2003, at 12 ......................................................          3

Joseph E. Stiglitz et al., The Impact of Asbestos Liabilities
      on Workers in Bankrupt Firms, at 10
      (Sebago Assoc., Dec. 2002) .............................................................         6

Susan Warren, Silicosis Suits Rise Like Dust; Lawyers in
      Asbestos Cases Target Many of the Same Companies,
      Wall St. J., Sept. 4, 2003, at B5........................................................        3, 4

                                                  vii
                                    STATEMENT OF INTEREST

        The Coalition for Litigation Justice, Inc. (“Coalition”) was formed by insurers as a

nonprofit association to address and improve the toxic tort litigation environment. The

Coalition’s mission is to encourage fair and prompt compensation to deserving current

and future toxic tort litigants by seeking to reduce or eliminate the abuses and inequities

that exist under the current civil justice system.1 The Coalition files amicus curiae briefs

in important cases before state courts of last resort and the United States Supreme Court

that may have a significant impact on the toxic tort litigation environment.

        Founded in 1986, the American Tort Reform Association (“ATRA”) is a broad-

based coalition of more than 300 businesses, corporations, municipalities, associations,

and professional firms that have pooled their resources to promote reform of the civil

justice system with the goal of ensuring fairness, balance, and predictability in civil

litigation. For more than a decade, ATRA has filed amicus curiae briefs in cases before

federal and state courts that have addressed important liability issues.

        The Coalition for Litigation Justice, Inc. and the American Tort Reform

Association will pay the fee for preparing this brief.




1
        The Coalition includes the following: ACE-USA companies, Chubb & Son, a division of Federal Insurance
Company; CNA service mark companies, Fireman’s Fund Insurance Company, The Hartford Financial Services
Group, Inc., Argonaut Insurance Co., General Cologne Re, Liberty Mutual Insurance Group, the St. Paul Fire and
Marine Insurance Company, and the Great American Insurance Company.
                            SUMMARY OF THE ARGUMENT

       The toll of over three decades of asbestos litigation on the Texas and national

economies is well documented. Now, the potential for a similar crisis is emerging in

silica litigation. After years of relatively manageable dockets, the number of silica cases

is exploding – even though the mortality rate of workers exposed to silica is steadily

declining. Many of the claims appear to have been generated by law firm-sponsored

screenings – including the claim brought by the respondent in this case.

       This Court has before it an opportunity to curb the potential lawsuit explosion now

by applying sound legal principles to guide Texas courts in managing silica litigation.

Under the sophisticated user doctrine, a supplier of bulk goods, such as sand, has no duty

to warn end users of the risks presented by various uses of the product. Tort law

generally places the responsibility for injuries on the party in the best position to prevent

those injuries from occurring – here, employers who purchase industrial sand. The risks

of exposure to crystalline silica from abrasive blasting and other industrial uses of sand

have long been recognized within the community of industrial sand users. Given that

broad awareness, it is hornbook tort law that suppliers of bulk sand for industrial use

should have no duty to warn downstream users of the product.

       This Court should apply this objective standard in silica litigation as it has in other

contexts to avoid a case-by-case, subjective application of the doctrine. The subjective

application, applied by the court below, would require significant judicial resources with

regard to fact inquiries in every case, and lead to inconsistent application of the doctrine

in sand litigation.

                                              2
                                      ARGUMENT

I.    SILICA LITIGATION: WHERE IT STANDS NOW

      During the past year, the number of silica lawsuit filings has exploded, with many

of these cases brought by the same lawyers and law firms who for years specialized in

bringing asbestos personal injury lawsuits. See Ingredients Might Be In Place To Make

Silica The Next Asbestos, Best’s Ins. Wire, Sept. 10, 2003. One large insurance company

is handling more than 25,000 silica claims in 28 states – a tenfold increase from August

2002. See Susan Warren, Silicosis Suits Rise Like Dust; Lawyers in Asbestos Cases

Target Many of the Same Companies, Wall St. J., Sept. 4, 2003, at B5. During the first

six months of 2003, nearly 15,300 new claims were filed against Petitioner U.S. Silica,

up from about 5,200 claims for all of 2002 and roughly 1,400 claims in 2001. See

Jonathan D. Glater, Suits on Silica Being Compared to Asbestos Cases, N.Y. Times, Sept.

6, 2003, at C1. The Financial Times reported in April that “[s]ilicosis claims [in the

United States] are climbing at such a rate that one company has 17,000 suits against it –

and it just makes masks designed to protect people from silica dust.” Bob Sherwood,

Weighing The Risk From Food and Phones, Fin. Times, Apr. 28, 2003, at 12.

      One would expect that such an explosion in lawsuit filings would correspond to an

explosion in the incidence of silica health claims.     Yet there is no evidence of a

burgeoning silica medical crisis. For example, the National Institute of Occupational

Health (NIOSH) has studied silica-related injuries since the 1930s. Since that time,

silica-related deaths have declined dramatically. In fact, NIOSH reports that over the

past 30 years the annual number of silica related deaths has dropped nearly 84 percent, to

                                            3
187 in 1999 from 308 in 1990 and 1,157 in 1968. See Nat’l Inst. for Occupational Safety

and Health, U.S. Dep’t of Health and Human Servs., Work-Related Lung Diseases

Surveillance Report 2002 xxiv, 53, 54 (2002); Warren, Silicosis Suits Rise Like Dust,

supra, at B5. To put these figures into context, the U.S. Centers for Disease Control and

Prevention reports that on average, 400 people in the United States die each year from

extreme heat, see Centers for Disease Control and Prevention, Extreme Heat,

http://www.cdc.gov/nceh/hsb/extremeheat/ (last visited Sept. 24, 2003), and the Bureau

of Labor Statistics reports that 155 workers die annually in falls from rooftops. See

Bureau of Labor Statistics, U.S. Dep’t of Labor, National Census of Fatal Occupational

Injuries in 2002, Sept. 17, 2002, at 7.    A medical crisis also would reveal a national

pattern of lawsuit filings in large and populous states other than Texas, such as

California, Michigan, New York and Illinois. But most silica claims are filed in Texas

and Mississippi – so-called “magic jurisdictions” where plaintiffs are likely to make a big

recovery. See Medical Monitoring and Asbestos Litigation – A Discussion With Richard

Scruggs and Victor Schwartz, 17 Mealey’s Litig. Rep.: Asbestos, Mar. 1, 2002, at 1, 6

(prominent plaintiffs’ lawyer Mr. Scruggs describing “magic jurisdictions” as “areas

where what happens in court is irrelevant because the jury will return a verdict in favor of

the plaintiff”).

       Why? Plaintiffs’ attorneys who honed their skills on asbestos cases are seeking to

diversify their portfolios. The same lawsuit-generating tactics and mechanisms that

worked to generate claims for the asbestos-plaintiffs’ bar are now being exploited in the

silica sand context. These include plaintiff recruitment through mass screenings, mobile

                                             4
x-ray vans, and internet websites; claims based on acts and occurrences from decades

ago; subjective medical science that makes it easy to build questionable cases; and

consolidation of claims by impaired and unimpaired litigants.                           Plaintiff law firm-

sponsored screenings of potential silica plaintiffs have increased “immeasurably” during

the past few years. See Increase in Screening for Silica Exposure Victims Evidence in

Texas, Vol. 1 No. 2, Mealey’s Litig. Rep. Silica 31 (2002) (explaining that workers often

are required to sign attorney-fee contracts and grant power of attorney before screening

for silicosis at mobile x-ray vans).2 Indeed, the Respondent in this action, Mr. Tompkins,

was originally diagnosed with silicosis after responding to a lawyer’s newspaper

advertisement; his diagnosis was rendered by an ex-doctor who had been convicted of a

crime of moral turpitude. See Pet. for Review (Tompkins), at 1-2 (citing R.R. 11:191-93,

15:57 & 16:30-31, R.R. 16:5).

        It appears that the plaintiffs’ bar is trying to turn silica into the “next asbestos.”3

We will provide a brief summary of asbestos litigation to show why the court should

establish clear rules for silica litigation now.

II.     THE LESSONS OF ASBESTOS LITIGATION

        The problems created by asbestos litigation have been well-documented. See, e.g.,

Hon. Griffin B. Bell, Asbestos Litigation and Judicial Leadership: The Courts' Duty to

Help Solve The Asbestos Litigation Crisis, Briefly, Vol. 6, No. 6, June 2002 (Nat’l Legal

2
         See also Pamela Sherrid, Looking for Some Million Dollar Lungs, U.S. News & World Rep., Dec. 17,
2001, at 36 (“screening firms advertise in towns with many aging industrial workers or park x-ray vans near union
halls”).
3
        Norman L. Haase, Current Silica Landscape—The Jurisdictions, The Defendants and Beyond, Vol. 1, No. 6
Mealey’s Litig. Rep.: Silica 19, 20 (Feb. 2003).

                                                       5
Center for the Pub. Interest monograph), available at <http://www.nlcpi.org> (last visited

Sept. 24, 2003); Mark A. Behrens, Some Proposals for Courts Interested in Helping Sick

Claimants and Solving Serious Problems in Asbestos Litigation, 54 Baylor L. Rev. 331

(2002); Paul F. Rothstein, What Courts Can Do In The Face of The Never-Ending

Asbestos Crisis, 71 Miss. L. J. 1 (2001). The number of asbestos cases pending

nationwide doubled from 100,000 to more than 200,000 during the 1990s; 90,000 new

cases were filed in 2001 alone. Most of these claimants are not sick and may never

develop an asbestos-related disease.4

        The litigation has left unprecedented devastation in its wake, including 67

corporate bankruptcies and counting; approximately 60,000 jobs lost; eroded pension

funds and stock prices; clogged court dockets; and lengthy delays for compensation of the

truly injured because of claims by litigants who are not sick.5 The RAND Institute for

Civil Justice predicts that the litigation will worsen, and that the number of claims yet to

be filed could range from 1 million to 3 million. See Stephen Carroll et al., Asbestos

Litigation Costs and Compensation: An Interim Report 77 (RAND Inst. for Civil Justice,

Sept. 2002).


4
         See The Fairness in Asbestos Compensation Act of 1999: Legislative Hearing on H.R. 1283, Before the
House Comm. on the Judiciary, 106th Cong. 4 (July 1, 1999) (statement of Christopher Edley, Jr., Professor,
Harvard Law School); Alex Berenson, A Surge in Asbestos Suits, Many by Healthy Plaintiffs, N.Y. Times, Apr. 10,
2002, at A1; Jennifer Biggs et al., Overview of Asbestos Issues and Trends 3 (Dec. 2001),
<http://www.actuary.org/mono.htm> (last visited Sept. 24, 2003); Stephen Carroll et al., Asbestos Litigation Costs
and Compensation: An Interim Report 20 (RAND Inst. for Civil Justice, Sept. 2002).
5
          See Stephen Carroll & Deborah Hensler, Facts and Figures About Asbestos Litigation: Highlights from the
New Rand Study (RAND Inst. for Civil Justice, Jan. 2003); Joseph E. Stiglitz et al., The Impact of Asbestos
Liabilities on Workers in Bankrupt Firms, at 10 (Sebago Assoc., Dec. 2002); Amchem Prods. Inc. v. Windsor, 521
U.S. 591, 631 (1997) (Breyer, J., concurring) (noting that “up to one half of asbestos claims are now being filled by
people who have little or no physical impairment”).

                                                         6
       How did the asbestos litigation problem get so bad? Early in the litigation, courts

began to treat asbestos cases differently from other product liability cases, changing both

substantive and procedural rules. See Victor E. Schwartz & Leah Lorber, A Letter to the

Nation’s Trial Judges: How the Focus on Efficiency Is Hurting You and Innocent Victims

in Asbestos Liability Cases, 24 Am. J. of Trial Advoc. 248, 253-60 (2000). By lowering

the legal barriers and moving the cases along quickly, the hope was that asbestos claims

ultimately would disappear. These attempts to promote efficiency in the handling of

asbestos cases instead attracted more and more plaintiffs, with weaker claims. See id. at

249-50; Victor E. Schwartz and Rochelle M. Tedesco, The Law of Unintended

Consequences in Asbestos Litigation, 71 Miss. L. J. 531 (2001).

       The lesson of asbestos is instructive, because silica litigation is at a tipping point.

The filings that occurred in the last year indicate that the plaintiffs’ bar intend to make a

serious push to turn silica into “the next asbestos.” If this Court makes it clear up front

that hornbook tort law principles apply to silica litigation, many of the excesses of the

asbestos litigation can be avoided in the silica litigation environment. Equipping Texas

courts with clear and well-developed legal tools before a litigation crisis develops

represents sound public policy, and should keep personal injury silica sand lawsuits from

spiraling out of control.

III.   THE “SOPHISTICATED USER” DOCTRINE PROVIDES A
       TRADITIONAL AND SOUND RULE FOR SILICA CASES

       The prospect of runaway silicosis litigation is real. The present appeal and a

companion case, Humble Sand & Gravel, Inc. v. Gomez, 48 S.W.3d 487 (Tex. App.—


                                              7
Texarkana 2001, pet. granted), afford this Court an important opportunity to direct the

future course of silica sand litigation in Texas before it reaches asbestos-like proportions.

       A bright-line rule from this Court, based upon the traditional tort law

“sophisticated user doctrine,” would empower Texas courts to maintain sound tort law

and public policy rules in silica sand lawsuits. This Court has already effected sound

policy decisions by adopting definitive rules that promote judicial efficiency and

certainty in contexts analogous to this one. See, e.g., Sauder Custom Fabrication, Inc. v.

Boyd, 967 S.W.2d 349, 350-51 (Tex. 1998); Am. Tobacco Co. v. Grinnell, 951 S.W.2d

420, 428-30 (Tex. 1997); Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 383 (Tex. 1995);

Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991). This

case presents another such opportunity. Absent a bright-line test, Texas courts would be

forced to parse out—for potentially thousands of silica sand plaintiffs statewide—

questions of fact concerning both plaintiffs’ and defendants’ individual, subjective

awareness of the hazards of working with and around silica sand, spawning thousands of

mini-trials in case after case.

       Texas courts should not have to bear this burden. As shown below, numerous

jurisdictions outside Texas have upheld sophisticated user defenses (also known as

“sophisticated purchaser,” “bulk supplier,” “knowledgeable intermediary,” and/or

“learned intermediary” defenses) in silica sand cases. Historical facts, and even this

Court’s own precedent, show that the dangers of silicosis associated with industrial sand

uses have been common knowledge in the abrasive sandblasting and foundry industries



                                              8
for over a century. See Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 751 (Tex. 1993). As

the United States Court of Appeals for the Eighth Circuit observed,

               [The] rule of the “sophisticated user” is no more than an
               expression of common sense as to why a party should not be
               liable when no warnings or inadequate warnings are given to
               one who already knows or could reasonably have been
               expected to know of [a product’s] dangers . . . . Otherwise, it
               would be an effort to shift liability to one who had no duty to
               act. We expect the law in ordinary circumstances to apply a
               common sense rule.

Crook v. Kaneb Pipe Line Operating P’ship, L.P., 231 F.3d 1098, 1102 (8th Cir. 2000)

(applying Nebraska law). This Court too should adopt this common sense rule.

         As a foundational matter, the Court should note that “sand” is not an engineered or

designed product, but is instead a naturally occurring substance. As the Louisiana Court

of Appeal observed, sand “constitutes a playground on the beach, and it has many uses

from filling gardens and lawns to mixing with concrete to filling sand boxes. That the

sand may be dangerous to the sandblaster is not the fault of the sand but in the use to

which sand is put.” Damond v. Avondale Indus., Inc., 718 So. 2d 551, 552 (La. Ct. App.

1998).

         In the context of abrasive sandblasting, sand is a basic industrial commodity.

Sand is typically sold in bulk or in large containers, and transportation costs are a large

part of the value of the delivered material. Moreover, industrial sand suppliers and other

similarly situated businesses, who ship raw materials to diverse industries, cannot easily

identify how their product will be used in a given workplace, who will use it, and what

warnings would be appropriate. See, e.g., Smith v. Walter C. Best, Inc., 927 F.2d 736,


                                              9
740 (3d Cir. 1990) (applying Ohio law) (explaining that because sand was delivered in

bulk and the plaintiffs did not participate in the delivery process, the employer was in a

better position to convey warnings to its employees). As the drafters of the Restatement

(Third) of Torts explained with regard to sellers of bulk materials, “[t]o impose a duty to

warn would require the seller to develop expertise regarding a multitude of different end-

products and to investigate the actual use of raw materials by [employers] over whom the

supplier has no control.” Restatement (Third) of Torts § 5 cmt. c (1997).

       A.     Application Of An Objective Sophisticated User Doctrine In Silica
              Sand Cases Is Consistent With Texas Law and Sound Public Policy

       The sophisticated user doctrine is based on Restatement (Second) of Torts § 388

(1965). Section 388 provides that one who supplies a product for another to use is liable

to those whom the supplier expects to use the product if (1) the supplier knows or has

reason to know the product is likely to be dangerous for the use for which it is supplied;

(2) the supplier has no reason to believe that product users will realize the product’s

dangerous condition; and (3) the supplier fails to exercise reasonable care to inform the

product users of the product’s dangerous condition.         Stated differently, a product

supplier’s duty to warn an end-user of the product is triggered only if the supplier has no

reason to believe that the product user will recognize the product’s dangerous

propensities. See Goodbar v. Whitehead Bros., 591 F. Supp. 552, 561 (W.D. Va. 1984),

aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985) (applying Virginia law)

(“when the supplier has reason to believe that the purchaser of the product will recognize

the dangers associated with the product, no warnings are mandated”).


                                            10
         The sophisticated user doctrine derives from Section 388 comment n, which

recognizes that often products do not pass directly from the supplier to the end-user, but

instead pass through one or more intermediaries (e.g., wholesalers, distributors, retailers

and employers) before winding up in the hands of the end-user. Comment n observes

that, in all such cases, the question may arise as to whether the person supplying the

product exercised the requisite reasonable care by informing the intermediary, rather than

the end-user, of the product’s hazards. In this respect, comment n and the sophisticated

user doctrine are akin to Texas’s “learned intermediary” doctrine, which relieves

pharmaceutical manufacturers of the duty to warn individual patients of risks associated

with doctor-prescribed medications. See, e.g., Bean v. Baxter Healthcare Corp., 965

S.W.2d 656, 662 (Tex. App.—Houston [14th Dist.] 1998, no pet.) The Texas learned

intermediary doctrine focuses on the lack of contact between a drug company and the

patient, as well as the physician’s role in prescribing the medicine and weighing the risks

and benefits to the patient. See id.

         At least one Texas court of appeals and numerous other courts have upheld

sophisticated (learned) intermediary user defenses to silica sand and other product

liability claims.6 These courts have consistently held that a product manufacturer or


6
          See, e.g., Munoz v. Gulf Oil Co., 732 S.W.2d 62, 66 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d
n.r.e.); Davis v. Avondale Indus., Inc., 975 F.2d 169, 173 (5th Cir. 1992) (applying Louisiana law); Martinez v. Dixie
Carriers, Inc., 529 F.2d 457, 464 (5th Cir. 1976) (applying federal admiralty law); Helene Curtis Indus. Inc. v.
Pruitt, 385 F.2d 841, 858 (5th Cir. 1967) (applying Oklahoma law); Bergfeld v. Unimin Corp., 319 F.3d 350, 353-55
(8th Cir. 2003) (applying Ohio law); Crook v. Kaneb Pipe Line Operating P’ship, L.P., 231 F.3d 1098, 1102 (8th
Cir. 2000) (applying Nebraska law); Smith v. Walter C. Best, Inc., 927 F.2d 736, 740 n.3 (3d Cir. 1990) (applying
Ohio law); Bergfeld v. Unimin Corp., 226 F. Supp. 2d 970, 977 (N.D. Iowa 2002); Singleton v. Manitowoc Co., 727
F. Supp. 217, 226 (D. Md. 1989); Sara Lee Corp. v. Homasote Co., 719 F. Supp. 417, 424 (D. Md. 1989); Higgins
v. E.I. DuPont de Nemours & Co., 671 F. Supp. 1055, 1061 (D. Md. 1987); Goodbar v. Whitehead Bros., 591 F.
Supp. 552, 566 (W.D. Va. 1984), aff’d sub nom., Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985) (applying Virginia

                                                         11
supplier has no duty as a matter of law to warn an intermediary of dangers about which

the intermediary either knew or should have known. Indeed, these decisions parallel this

Court’s repeated holding that “the duty to warn is limited in scope, and applies only to

hazards of which the consumer is unaware.” Sauder, 967 S.W.2d at 350-51; Caterpillar,

911 S.W.2d at 382. Sauder clarified that a “consumer” in the products liability context is

defined as “an ordinary user of the product,” which is “not necessarily the same as that of

an ordinary person unfamiliar with the product.” Sauder, 967 S.W.2d at 351 (citing, e.g.,

Gray v. Manitowoc Co., 771 F.2d 866, 870-71 (5th Cir. 1985) (applying Mississippi law)

(precluding a crane operator from recovering because the existence of a blind spot was

common knowledge to construction workers, so no warning was required)). Sauder also

recognized that this limitation on the duty to warn conforms to the language of the

Restatement (Third) of Torts: Products Liability, which states: “In general, a product

seller is not subject to liability for failing to warn or instruct regarding risks and risk

avoidance measures that should be obvious to, or generally known by, foreseeable

product users.” Restatement (Third) of Torts: Prod. Liab. § 2, cmt. j (1997) (emphasis

added).

        Therefore, if the risks of silicosis were common knowledge within the industry

well before and during the time that Mr. Tompkins worked as an abrasive sandblaster,

sand suppliers like U.S. Silica had no duty to warn Mr. Tompkins or other workers



law); Gray v. Badger Mining Corp., 664 N.W.2d 881, 884-85 (Minn. Ct. App. 2003); Damond v. Avondale Indus.,
Inc., 718 So. 2d 551, 552 (La. Ct. App. 1998); Phillips v. A.P. Green Refractories Co., 630 A.2d 874, 881-83 (Pa.
Super. Ct. 1993); Haase v. Badger Mining Corp., No. 02-1681, 2003 WL 21800493, ¶ 14 (Wis. Ct. App. Aug. 6,
2003) (not designated for publication).

                                                       12
exposed to silica dust of such dangers as a matter of Texas law. As shown below, the

health risks of exposure to silica and the need for protective measures have been widely

known within the abrasive blasting industry for years. Instead of having “no reason” to

believe that a user will realize the risk, sand suppliers have every reason to believe that

they will.

              1.     Silicosis Hazards Associated With Abrasive Sandblasting
                     And Other Industrial Sand Uses Have Been A Matter of
                     Common Knowledge In The Industry For Decades

       Texas law provides that the duty to warn is limited to hazards of which ordinary

users of a product are unaware. See Sauder, 967 S.W.2d at 350-51; Caterpillar, 911

S.W.2d at 382. In addition, the obviousness of a particular risk is an objective, not a

subjective, determination under Texas law. See Sauder, 967 S.W.2d at 350; Caterpillar,

911 S.W.2d at 383.

       This Court observed ten years ago that inhaling silica dust may cause respiratory

disease, “a risk that has been recognized for more than a century.” Dresser, 880 S.W.2d

at 751. More than fifty years ago, the United States Supreme Court observed that “[i]t is

a matter of common knowledge that it is injurious to the lungs and dangerous to health to

work in silica dust, a fact which defendant was bound to know.” Urie v. Thompson, 337

U.S. 163, 180 (1949) (approving of and quoting Sadowski v. Long Island R.R. Co., 55

N.E.2d 497 (N.Y. 1944) (emphasis added)).

       This theme runs through many silica cases. See, e.g., Gomez, 48 S.W.3d at 493

(“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 . . .

                                            13
.”); Bergfeld v. Unimin Corp., 319 F.3d 350, 354 (8th Cir. 2003) (applying Ohio law)

(describing one intermediary’s knowledge of the dangers of silica going back to the

1930s, as well as the “generalized industry knowledge”); Smith, 927 F.2d at 741 (“it was

reasonable for the sand suppliers to assume [the intermediary] knew of the dangers of

silica given the state of common medical knowledge at all relevant times [and] the

various statutes and regulations governing silica . . . .”) (emphasis added); Gray v.

Badger Mining Corp., 664 N.W.2d 881, 884 (Minn. Ct. App. 2003) (observing that for

over 100 years, the foundry industry has been aware of some dangers from the inhalation

of silica); Haase v. Badger Mining Corp., No. 02-1681, 2003 WL 21800493 ¶ 24 n.2

(Wis. Ct. App. Aug. 6, 2003) (not designated for publication) (noting that the National

Silicosis Conference was held in 1937, which featured the film “Stop Silicosis, and the

report of which addressed silicosis prevention in industrial settings, recommending

measures for employers to take on behalf of their workers).        In addition, both the

petitioner’s brief in Gomez and Petitioner’s brief below in Tompkins, along with the

record in both cases, are replete with evidence of decades-old, well-documented,

industry-wide knowledge of silicosis hazards related to industrial sand use. See, e.g.,

Brief for Appellant at 5-7 (Tompkins); Brief for Pet. at 6-7 (Gomez). Finally, Ohio

enacted a statute setting forth maximum exposure levels for airborne silica in the

workplace to protect that state’s workers in 1947. (10 R.R. 66; 14 R.R. 101.) Texas

adopted a similar statute in 1958.      (10 R.R. 66.)     OSHA regulations governing

sandblasting operations and setting maximum airborne silica levels took effect in 1970.



                                           14
         Thus, from an objective standpoint, dangers associated with the use of silica sand

have been a matter of common knowledge among industrial sand users for decades. As a

result, industrial sand suppliers have no duty to warn employers or users of silicosis

hazards associated with their product. See, e.g., Smith, 927 F.2d at 740 n.3 (“when the

supplier has reason to believe that the purchaser of the product will recognize the dangers

associated with the product, no warnings are mandated”); Goodbar, 591 F. Supp. at 561

(same); Phillips v. A.P. Green Refractories Co., 630 A.2d 874, 881 (Pa. Super. Ct. 1993),

(holding that industrial sand users knew or should have known of the silicosis hazard).

               2.     The Objective Sophisticated User Standard Should Apply To
                      Both Large And Small Industrial Sand Intermediary Users

         The Tompkins court of appeals’ rejection of the sophisticated user doctrine

exemplifies the type of individualized factual inquiry this and other Texas courts should

avoid.     The Tompkins court declined to apply the sophisticated user doctrine, as

advocated by the dissent in Gomez, “because Tompkins’ employers were not

sophisticated intermediary users in the sense that the employer in [Gomez] might have

been.” U.S. Silica Co. v. Tompkins, 92 S.W.3d 605, 609 (Tex. App.—Beaumont 2002,

pet. filed). Despite a well-documented history of the abrasive industry’s knowledge

about potential hazards of silica exposure, the court of appeals subjectively evaluated Mr.

Tompkins’s and his employers’ awareness of silicosis risks, noting, for example, that

U.S. Silica’s then-general counsel testified that he “did not know what Mr. Tompkins’

employers knew at the time . . . .” Tompkins, 92 S.W.3d at 610.




                                             15
       The Gomez court of appeals likewise attempted to narrow the sophisticated user

doctrine by creating a requirement that the supplier present evidence that it affirmatively

investigated the intermediary/employer’s knowledge. Gomez, 48 S.W.3d at 495, 500-501

(“The pivotal inquiry . . . is a fact-specific evaluation of the reasonableness of the

supplier’s reliance on the third party to provide the warning. . . . There is no evidence in

the record of any attempts by Humble Sand to ascertain the knowledge of Spincote’s

management or employees . . . .”); compare Goodbar, 591 F. Supp. at 561 (“Defendant

suppliers   made     no    effort   to   attempt    to   determine     the   extent   of   the

[employer/intermediary’s] knowledge about silicosis. I find this to be of no consequence

here because even without making any actual inquiry, the Defendant suppliers could

reasonably assume that the [employer/intermediary] had substantial expertise in this

area”; the suppliers could also assume that the employer/intermediary “would perform its

legal obligations as well as protect[] its own financial interest”).

       If the Court continues to adhere to a subjective rule, potentially every silicosis

lawsuit will necessarily involve fact questions on issues regarding which employers and

which workers possessed what knowledge, when they possessed it, and how and when

each supplier determined the extent of the knowledge.

       This is specifically the type of fact-intensive inquiry this Court rejected in Grinnell

with regard to individual smokers’ subjective awareness of the general health risks of

smoking. See Grinnell, 951 S.W.2d at 428-430. Based primarily on historic and recent

legal precedent, Surgeon General statements and other federal government policy

positions, magazine articles, books, and other documents in the public domain, this Court

                                              16
declared the general health dangers attributable to cigarettes were commonly known to

the community at large at least since 1952. Id. The Court now has before it similar

evidence supporting a conclusion that silicosis dangers have been commonly known (to

the community of abrasive sandblasting firms, foundries, and other industrial sand users)

since at least the early 20th century. See Sauder, 967 S.W.2d at 351 (holding that a

“consumer” in the products liability context is defined as “an ordinary user of the

product”).

         Finally, treating small regional employers, such as those in Tompkins, as “less

sophisticated” and different from a larger, national operation, such as that in Gomez, is

analogous to arguments under the learned intermediary doctrine that certain

intermediaries are “less learned” than others. Texas and other courts have rejected such

arguments.7

                  3.       Even If The Court Adopts A Subjective Knowledge Rule,
                           Mr. Tompkins’s Employers Possessed Sufficient Expertise
                           To Be Characterized As “Sophisticated” Intermediary Users

         Mr. Tompkins was employed by Newsome & Work Sandblasting Company

(“Newsome”) in Akron, Ohio (1968-72); A.S.B. Industries, Inc. (“ASB”) in Akron


7
         See, e.g., Wyeth-Ayerst Labs. Co. v. Medrano, 28 S.W.3d 87, 93 (Tex. App.—Texarkana 2000, no pet.)
(deeming “advanced practice nurse” equivalent of prescribing physician for purposes of the learned intermediary
doctrine); Swayze v. McNeil Labs., Inc., 807 F.2d 464, 470-71 (5th Cir. 1987) (applying Mississippi law) (upholding
learned intermediary defense despite fact that nurse anesthetist, rather than a doctor, administered the patient an
overdose of an extremely potent anesthetic); Cason v. E.I. DuPont de Nemours & Co., No. 01-94-01191-CV, 1997
WL 69858, at *13 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (holding that chemical engineer who designed
jaw implant was a learned intermediary, even though, as plaintiffs’ argued, engineer was not a biologist, pathologist,
toxicologist, nor medical doctor) (not designated for publication); c.f. Goodbar, 591 F. Supp. at 561 (“Plaintiffs
submit that the defendant suppliers made no effort to attempt to determine the extent of the foundry’s knowledge
about silicosis. This is of no consequence because even without making any actual inquiry, the suppliers could
reasonably assume that the foundry had substantial expertise in this area and that it would perform its legal
obligations as well as protecting its own financial interest.”) (emphasis added).

                                                         17
(1973-77); and F.W. Gartner Company in Houston, Texas (1982-86). Newsome and

ASB were both professional blasting companies that specialized in abrasive blasting for

utility companies in several states.

       While Newsome and ASB were both regional firms with fewer employees than the

1400-worker, national company in Gomez, the evidence shows that at the time of Mr.

Tompkins’s employment, these companies were well aware that silica sand was

dangerous to breathe. One Newsome employee, the son of the company’s founder,

testified that he learned that exposure to silica sand was “hazardous,” “disabling,” and

had the “potential to cause death” when he began working there in 1970. (17 R.R. 130-

31.) He was also told that he should wear protective equipment as a safeguard. (17 R.R.

130-31.) An ASB employee, who began working there in 1967, testified that ASB told

him about the hazards of silica sand during a meeting that took place the day before he

started working. (17 R.R. 100, 115.) Newsome and ASB provided Mr. Tompkins and

other employees with air-fed hoods and paper masks to protect them from airborne silica

in the workplace. (10 R.R. 64.) PGS, U.S. Silica’s predecessor, sent ASB a Material

Safety Data Sheet in 1976 that included a warning about the hazards of silica sand and

informed ASB of steps to take in protecting employees from the hazards of silica in

abrasive blasting. PGS also then provided an OSHA document with guidelines for

monitoring silica dust in the workplace, respirator use, and protection and training of

employees. (11 R.R. 169-70; PX 24.)

       Despite this and other evidence showing that these professional abrasive blasting

companies were keenly aware of the potential health risks of silica exposure, the

                                          18
Tompkins court simply refused to acknowledge that these companies had the requisite

knowledge about potential risks to constitute “sophisticated intermediary users.”

Tompkins, 92 S.W.3d at 609-10. If the intermediary’s subjective knowledge is to be an

issue at all, the question should not be whether Mr. Tompkins’s employers had perfect

knowledge, but rather whether they knew the product was dangerous and how it was

dangerous. See Hill v. Wilmington Chem. Corp., 156 N.W.2d 898, 902 (Minn. 1968)

(holding, in a bulk supplier case, “[i]f [the intermediary] had adequate knowledge of the

dangerous propensities of the product sold by Shell, no further duty rested on Shell to

give additional warning”) (emphasis added).

      Here, the intermediary employers had at least “adequate knowledge” of the

“dangerous propensities” of sand. They knew that the danger consisted of the possibility

of breathing respirable silica dust, and they provided respiratory protective equipment

specifically to alleviate that danger. See Tompkins, 92 S.W.3d at 607-609. If this Court

chooses to impose a subjective knowledge standard for determining whether an employer

can be considered a sophisticated user, the Court should embrace a very practical

formulation of what constitutes adequate knowledge. Section 388 of the Restatement

(Second) of Torts requires that a bulk supplier warn of product dangers if it has no

reason to believe that the product’s users will realize the hazards. Given the wealth of

knowledge in the abrasive blasting industry and the actual knowledge of Mr. Tompkins’s

employers, U.S. Silica did have reason to believe that those companies would be aware of

the dangers.



                                           19
       B.     Objective Application Of The Sophisticated User Doctrine Places
              Responsibility For Workplace Safety On The Party Best Suited To
              Communicate An Effective Warning: Mr. Tompkins’s Employers

       This Court places a premium on ensuring that responsibility is imposed on parties

“according to their ability to prevent the harm.” Duncan v. Cessna Aircraft Co., 665

S.W.2d 414, 425 (Tex. 1984). A party’s position in the chain of distribution is a factor to

be considered in making the determination as to the existence of a duty to warn product

users directly. See Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 596 (Tex. 1986)

(Gonzalez, J., dissenting).

       Accordingly, sound policy reasons support objective application of the

sophisticated user doctrine. First, the doctrine places the duty to warn on the party best

suited to ensure workplace safety—here, Mr. Tompkins’s employers. Second, the burden

falls on the party in the best position to know of the product’s potential uses—thereby

enabling that party to communicate safety information to the ultimate user based upon the

specific use to which the product will be put. See Haase, 2003 WL 21800493, ¶ 21; see

also Singleton v. Manitowoc Co., 727 F. Supp. 217, 226 (D. Md. 1989) (holding that

employer was in a better position to get warnings to the ultimate users of the product—its

employees—and to enforce attendance at safety meetings and adherence to safety

policies); Phillips, 630 A.2d at 881 (holding, in a silica sand case, that it would be

prohibitively expensive and unduly burdensome to require suppliers to warn each worker

and continually monitor them to make sure they were wearing their respirators; therefore,

the sand suppliers could not feasibly reduce the risk to end-users). Indeed, while a

supplier might know that its sand may be used for sandblasting, it has absolutely no

                                            20
control over how the user conducts its operations in this regard. See Damond, 718 So. 2d

at 553.

          Moreover, several courts have identified some of the more obvious problems

associated with imposing such a duty to warn on sand suppliers:

                          • The identification of the users or those exposed to its products
                            would require a constant monitoring by the suppliers in view of
                            the constant turnover of the work force;

                          • The manner in which the sand products are delivered (often in
                            bulk);

                          • No guarantee that written product warnings would ever reach the
                            workers involved in sandblasting, casting, or those in the
                            immediate vicinity;

                          • Only the employer itself would be in position to provide the good
                            housekeeping measures, training, and warnings to its workers on
                            a continuous and systematic basis necessary to reduce the risk of
                            silicosis;

                          • The sand suppliers must rely on the employer to convey any
                            safety information to its employees;

                          • The confusion arising when multiple suppliers and the employer
                            each try to cope with the awesome task of instructing the
                            workers; and

                          • In a commercial setting, it would be totally unrealistic to assume
                            that the suppliers would be able to exert pressure on industrial
                            customers to allow the suppliers to come in and educate their
                            workers on the hazards of silicosis.8




8
          Restatement § 388 comment n also lists several factors to be considered in determining whether a seller has
acted reasonably in relying on an intermediary to pass on relevant information. These include (1) the dangerous
condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the
reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of risk
involved; and (6) the burdens imposed on the supplier by requiring that he directly warn all users. See Smith, 927
F.2d at 739-40 (citing Goodbar, 591 F. Supp. at 557).

                                                        21
Bergfeld v. Unimin Corp., 226 F. Supp. 2d 970, 978-79 (N.D. Iowa 2002) (citing

Goodbar, 591 F. Supp. at 562); see also Smith, 927 F.2d at 739-40 (citing Goodbar, 591

F. Supp. at 557, 561).

       Ultimately, the employer is legally bound to provide a safe workplace for its

employees, and should bear the responsibility of warning its employees of workplace

hazards. Only the employer is in the position to ensure workplace safety by training,

supervising, and using proper safety equipment.         Designating the manufacturer or

supplier as an absolute insurer of its product removes economic incentives that encourage

employers to protect employees’ safety. See Goodbar, 591 F. Supp. at 567 (citing Victor

E. Schwartz & Russell W. Driver, Warnings In The Workplace: The Need For A

Synthesis Of Law And Communication Theory, 52 U. Cin. L. Rev. 38, 43 (1983)).

       Indeed, as the Restatement (Second) of Torts points out, “[m]odern life would be

intolerable unless one were permitted to rely on others doing what they normally do,

particularly when it is their duty to do so.” Restatement (Second) of Torts, § 388, cmt. n

(1965). Employers are duty bound to provide safe work environments, and should also

bear the responsibility of communicating workplace hazards to their employees.

                                        PRAYER

       WHEREFORE, PREMISES CONSIDERED, Amici Curiae, the Coalition for

Litigation Justice, Inc. and the American Tort Reform Association, respectfully pray that

this Honorable Court consider the foregoing matters in reaching its decision in this case.




                                            22
     Respectfully Submitted,

     SHOOK, HARDY & BACON L.L.P.


     By:
           Manuel López
           Texas Bar No. 00784495
           Robert W. Cowan
           Texas Bar No. 24031976

     JP Morgan Chase Tower
     600 Travis Street, Suite 1600
     Houston, Texas 77002-2911
     (713) 227-8008
     (713) 227-9508 (telecopy)

     VICTOR E. SCHWARTZ
     LEAH LORBER
     Shook, Hardy & Bacon L.L.P.
     600 14th Street, N.W.
     Suite 800
     Washington, D.C. 20005
     (202) 783-8400
     (202) 783-4211 (telecopy)

     Attorneys For Amici Curiae,
     Coalition for Litigation Justice, Inc.
     and American Tort Reform Association

     PAUL W. KALISH
     MARK D. PLEVIN
     Crowell & Moring LLP
     1001 Pennsylvania Ave., N.W.
     Washington, D.C. 20004
     (202) 624-2500

     SHERMAN JOYCE
     American Tort Reform Association
     1101 Connecticut Avenue, NW
     Suite 400
     Washington, DC 20036
     (202) 682-1163

     Of Counsel

23
                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Brief of Amici Curiae has been

served on all parties to this appeal by first class certified mail, return receipt requested, on

this ______ day of _________________, 2003 as follows:

       Jeffery T. Nobles
       Jack E. Urquhart
       Allyson L. Mihalick
       Beirne, Maynard & Parsons, L.L.P.
       1300 Post Oak Boulevard, Suite 2500
       Houston, Texas 77056
       ATTORNEYS FOR PETITIONER

       Daryl L. Moore
       Storey, Moore & McCalley, P.C.
       1005 Heights Boulevard
       Houston, Texas 77008
       ATTORNEYS FOR RESPONDENTS

       Guy G. Fisher
       Provost & Umphrey
       P.O. Box 4905
       Beaumont, Texas 77704
       ATTORNEYS FOR RESPONDENTS

       Lance Lubel
       Heard, Robins, Cloud, Greenwood & Lubel, L.L.P.
       910 Travis St., Suite 2020
       Houston, Texas 77002
       ATTORNEYS FOR RESPONDENTS




                                                           Robert W. Cowan

				
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