Firm Shareholders James L. Ware and Wes Sprague won a summary judgment in a benzene case in a traditionally difficult venue for defendants, Beaumont, Jefferson County, Texas. The plaintiff was a long time welder who worked for a leading contractor in several refineries and rubber manufacturing facilities in Jefferson County, Harris County, and Galveston County. The allegations were that the welder helped wash tools in benzene on a daily basis leading to his development of myelodysplastic syndrome (MDS) leaving him unable to work and in need of lifetime medical care. The plaintiff’s deposition as to the firm client varied from the initial testimony of exposure which were identical as to each premise. At most the testimony supported there being a “residue” of liquid inside pipes on occasion which the plaintiff asked his helper to dry with rags before he welded them. In addition to the contradictions in liability evidence, the plaintiff’s condition of MDS was refuted and his symptoms may have been caused in whole or part by a 40 pack year history of cigarette smoking. The firm client’s defense rested on the application of independent contractor law embodied in § 95 Tex. Civ. Prac. & Rem. Code which places the burden of proof on the plaintiff to establish that the premise owner exercised actual control over the details of the welder’s work and that the premise owner had actual knowledge of the hazardous condition which caused the plaintiff’s injury. The defendant also asserted that the opinions of the plaintiff’s expert industrial hygienist regarding dose of asbestos exposure did not meet the requirements of the Texas Supreme Court case of Borg Warner v. Flores, 232 S.W. 3rd 765 (Tex. 2007). The trial court agreed with the firm’s lawyers positions and granted the summary judgment.
No Evidence Motion for Summary Judgment