Mass Torts: State of the Art : Mass Torts Lawyer & Attorney : Vorys, Sater, Seymour & Pease Law Firm : Toxic Torts & Wrongful Death

Yesterday, the Texas Silica MDL Court granted a defendant’s no evidence summary judgment motion in a case in which the plaintiff alleged that pipes specified by the defendant to be sandblasted offsite and thereafter installed on its premises were either defective products or somehow an extension of the defendant’s premises over which it retained and exercised control. Plaintiff had sandblasted the pipes but had never actually worked at defendant’s facility. He was subsequently diagnosed with silicosis and “silica related lupus”.

Plaintiff claimed that the defendant’s specifications for a particular surface finish on the pipes, which plaintiff argued could only be achieved by using high silica containing flint or other abrasive, meant that the defendant exercised enough control over the manner of plaintiff’s work that it could be held liable for his injury. The defendant argued that there was no legal duty to the plaintiff and that there was no control that would give rise to Chapter 95 liability.

The Texas MDL court rejected plaintiff’s attempt to use premise liability theories to maintain product liability or negligence claims when there was no product created, manufactured or sold by the defendant and none of the acts allegedly responsible for his injuries occurred on the defendant’s premises. Plaintiff had admitted that there was no Texas case law to support his theory.
 

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In a decision significant for its discussion of Texas’ Chapter 95 premises liability scheme the 1st Court of Appeals today reversed a $4+ million judgment against Union Carbide and Hexion arising out of a mesothelioma case tried to verdict in Galveston and rendered a take nothing judgment in favor of both defendants.

Essentially the court held that there was no evidence of control sufficient to support a verdict against Union Carbide. Providing asbestos-containing gaskets to the plaintiff contractor was not control – especially as any asbestos exposure arose out of the manner in which he used them rather than any intrinsic property. Specifying asbestos-containing insulation be applied by other contractors was not control, employing other contractors who stirred up dust was not control and requiring and holding mandatory safety meetings for plaintiff’s supervisors was not control.

Interestingly however, on page 9 at footnote 7, the court spends considerable time discussing a jury question the plaintiff didn’t request that would have led to a jury considering whether a premises owner exercised control over some other contractor, such as an insulator, which in turn led to the plaintiff’s exposure. There’s clearly a hint here that the court doesn’t think the control inquiry is limited to whether premises owner exercised control over the manner in which plaintiff did his work but extends to whether the premises owner controlled the manner of the work of some other contractor who in turn injured the plaintiff. But the plaintiff didn’t ask for the question so too bad.

Regarding the claims against Hexion, the plaintiff’s employer, they appear not to have been the usual Article 16 Section 26 workers’ comp avoiding effort we typically see in Texas. Instead the plaintiffs appear to have latched on to the idea that Hexion was not actually the plaintiff’s employer during that period of time during which plaintiff worked for Hexion’s predecessor so that the comp act’s bar to common law claims against employers for on the job injuries wouldn’t apply. The court basically held that public policy argued for an expansive view of worker’s comp coverage. The plaintiff made a last ditch plea to have the court adopt the “dual persona” doctrine, which would have separated Hexion into with and without coverage entities. Noting that no Texas court has ever done so as a means for imposing liability on a covered employer otherwise immune to suit the court declined the invitation.

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