PATRICIA A. RICKICKI and PATRICIA A
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STATE OF NEW YORK SUPREME COURT : COUNTY OF CATTARAUGUS ___________________________________________________ PATRICIA A. RICKICKI and PATRICIA A. RICKICKI as Executrix of the ESTATE OF DAVID P. RICKICKI, Index No. 53395 vs. Plaintiffs, BORDEN CHEMICAL, DIVISION OF BORDEN, INC., et al., Defendants. ----------------------------------------------------------------------------- MICHAEL C. CROWLEY and SHARON M. CROWLEY, Index No. 61024 vs. Plaintiffs, C-E MINERALS, INC., et al. Defendants. ____________________________________________________ ______________________________________________________________________________ DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ PRELIMINARY STATEMENT The issue before this Court remains whether remote silica sand suppliers have a duty to warn industrial customers that prolonged inhalational overexposure to silica can cause a lung disease, silicosis, which has been a matter of common knowledge in the industrial, labor, medical, and governmental communities since at least the middle of the last century, and which has been the basis of extensive regulations, by both the New York and federal governments, designed to protect industrial workers where silica sand is used. This issue was previously presented to this Court, which held that the remote silica suppliers had no duty to warn on all the facts and circumstances of these cases, and that any claimed breach of duty was not a proximate cause of the claimed injuries. Plaintiffs’ appealed from this Court’s decision order and the appeal came to be heard by the Appellate Division Fourth Department. By Memorandum and Order dated March 20, 2009, the Appellate Division Fourth Department modified in part the decision of this Court by reinstating the negligence and products liability causes of action insofar as those causes of action are based on a failure to warn. In modifying this Court’s decision the Fourth Department observed that plaintiffs’ expert submitted an affidavit detailing the differences between amorphous and crystalline silica, the effect that those two categories of silica have on lung health, and the additional measures needed to prevent inhalation of crystalline silica. The Appellate Court then concluded that an issue of fact existed as to whether defendants’ failed to warn with respect to the differences between amorphous and crystalline 2 silica and whether such a failure was a proximate cause of the injuries sustained by the plaintiffs.1 It is respectfully submitted that the issue of whether amorphous silica causes silicosis was never an issue in these moving defendants’ underlying motion for summary judgment and there is no evidence that Dexter was confused as to the differences in the dangers posed by amorphous versus crystalline silica. The parties do not dispute that crystalline silica poses a more serious potential hazard from prolonged inhalational overexposure than does amorphous silica. To the extent that plaintiffs’ employer, Dexter, treated amorphous silica as crystalline silica, Dexter would have overprotected its employees from amorphous silica. In either event, the discovery conducted after remand from the Appellate Division, along with the evidentiary display previously before this Court, shows that there is no genuine issue of material of fact for trial on duty, breach, or proximate cause. The cases arise from claims brought by two workers at one of many industrial plants of the Dexter Corporation (Dexter), which manufactured various products composed of epoxy resins, chemicals, fiberglass, and silica. The plaintiff-workers, Mr. Rickicki and Mr. Crowley, both worked in a ventilated area of a Dexter plant where component materials were blended together in large machines, for use in Dexter’s own proprietary manufacturing process. Both workers petitioned for, and won, workers’ compensation benefits, for claims of respiratory illness. Plaintiffs then sued the remote suppliers of component materials to Dexter, in civil actions, and the remote suppliers in turn impleaded Plaintiffs’ employer as a third-party defendant. 1 Submitted herewith and incorporated by reference is the entire record on appeal encompassing the papers previously submitted to this Court in support of defendants’ joint motion for summary judgment. References to the record on appeal will be made as [R. at ___]. 3 Silica, chemically silicon dioxide, occurs naturally as a mineral and major component of rocks in the earth’s crust. Naturally occurring silica is predominantly crystalline (silica sand, quartz, amethyst, sandstone, quartzite, etc.), and is indispensable in many finished products, such as glass, fiberglass, ceramics, paints, coatings, and in many industrial processes, such as metal foundries, abrasive blasting, water filtration, oil and gas production, and golf course construction. See Regis, “Frame the Sandbox to Sandblasting: Regulation of Crystalline Silica,” 17 Pace Envt’l L. Rev. 207, 208 n. 8 (1999). Silica also occurs naturally in a non-crystalline state, otherwise known as amorphous silica with different physical properties and biological effects. Two common examples of naturally occurring amorphous silica are diatomaceous earth and opal. Amorphous silica can also be produced synthetically, and manufactured amorphous silica is often used industrially. In its natural state, silica is harmless, but if silica dust is aerosolized in sufficiently high concentrations, and breathed for prolonged periods of time, it may cause silicosis. Silicosis occurs in several forms. The most serious, fatal, variety is “acute silicosis,” which results from extremely high levels of silica exposure, over relatively short periods of months or a few years. Acute silicosis today is extremely rare. Id. at 208 n. 9. “Accelerated” silicosis results from heavy silica exposures, over the course of five to 10 years, and involves serious disability. Simple or chronic silicosis, the most common type of silicosis in this country, usually occurs after 10 or more years, at excessive but relatively lower levels of exposure. Mild simple chronic silicosis is diagnosed as an X-ray change, typically without impairment or disability, but which may require removing a worker from the source of exposure. Id. Plaintiffs both claim to have silicosis. Defendants believe, based upon discovery, that Mr. Rickicki had non-impairing simple silicosis, and Mr. Crowley’s claim of simple silicosis 4 remains disputed. Resolution of the disputes relating to Plaintiffs’ medical condition, however, is not material to this motion. What is material is Dexter’s knowledge of the hazard of silica overexposure. On this issue, the proof is undisputed that the chemical formulation and processing of Dexter’s products took place under the supervision of a professional chemist, Mr. Hornburg, who joined Dexter in 1950, after teaching chemistry at St. Bonaventure’s University. Upon his arrival at Dexter, Hornburg understood fully that excessive exposure to silica caused silicosis, and that the employer had to guard and protect against overexposure. To that end, Dexter conducted monitoring of “air contaminants,” and when necessary, installed ventilation equipment, and required masks or respirator use in certain designated areas. In addition to Hornburg’s knowledge, Dexter had available to it, throughout the Plaintiffs’ employment period, the services of its worker’s compensation carriers’ technical staff. Two of those insurance carriers had large staffs of industrial hygienists and technical personnel, to help Dexter assess its workplace conditions and protect its workers against overexposures. Throughout the Plaintiffs’ work histories, and for decades before, Dexter had an obligation to provide safe working conditions, under New York common law, and under state regulations that specifically covered silica overexposure. These regulations, from at least 1956 until today, comprehensively specified worker education and warnings, air monitoring, ventilation, and, where necessary, appropriate respirators. If state law were not enough, the federal government entered the field in 1970, at or before either Plaintiff began work at Dexter, with similar comprehensive OSHA regulation of industrial silica use in the workplace. In this context, Unimin and U.S. Silica began to supply Material Safety Data Sheets (MSDSs) in the early 1970s, with package and invoice warnings, and “dear customer” letters following in the mid-1970s. Those warning communications were driven by changes and uncertainty about 5 product liability law with the advent of “strict liability,” but they were never undertaken because of a belief that industrial customers were somehow unaware of the common knowledge of the hazards of silica. Indeed, both the New York Court of Appeals and the United States Supreme Court, in the 1940s, rejected employers’ claims of ignorance of silica hazards, on grounds that the hazards were common knowledge among industrial employers. On these facts, more fully described below, plaintiffs’ claims are legally untenable. The sophisticated intermediary defense 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 ….” Crook v. Kaneb Pipe Line Operating Partnership, 231 F.3d 1098, 1102 (8th Cir. 2002)(applying Nebraska law). This expression of common sense