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
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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 ___].
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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 is manifestly supported by the law of New
York, the law of its sister states, and in leading scholarly statements, such as those of the
American Law Institute (ALI).
The application of the defense is especially appropriate in these cases, not only for the affirmative showing of Dexter’s knowledge, along with supererogatory warnings from the remote silica sand suppliers, but also for what has not, and cannot be shown. There is, for instance, no evidence that Defendants had superior or secret information about silica hazards.
There is no evidence that silica cannot be used safely, or that Dexter lacked any information necessary to use silica safely in its Olean workplace. Importantly, there is absolutely no evidence that the Defendants knew that Dexter might have overexposed its employees, or that it could not or would not provide a safe workplace with respect to the use of their silica materials, or that Dexter was such a notoriously incompetent employer that the Defendants, as remote vendors, should have known that Dexter was not providing a safe workplace to its employees.
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The sophisticated intermediary defense speaks to the industrial realities that face sellers
of raw commodities, such as silica, which are used in myriad products and applications. Silica
suppliers are in business of mining and supplying a natural commodity, for uses unfamiliar to the
mining industry. Buyers are most familiar with their own specifications and needs, as well as
how their manufacturing processes might create airborne silica, and which workers in their workplaces may be affected. Only the purchaser can establish that overexposures are occurring, and what, if any, engineering controls, such as ventilation, can abate the overexposures. If the hazard cannot be abated by ventilation, then only the purchaser can assess how serious the silica
overexposure is, and select the appropriate type of personal respiratory protection, in the form of
a mask or respirator. Only the purchaser-employer can ensure that its employees are provided
with the needed personal protection, that the protective devices fit properly, are cleaned
regularly, and are actually used. Only the purchaser-employer can supervise its employees and
discipline them when they are non-compliant with workplace rules designed for their own safety.
Not only can these functions be performed only by purchasers, such as Dexter, every one of
these functions was within Dexter’s regulatory and common-law duties owed to the Plaintiffs at
all relevant times.
Imposing liability on remote suppliers, which cannot accomplish any of these things, is
unfair and ultimately inefficacious. The focus of responsibility is, and must be, in cases such as
these, on the purchaser-employer of the raw ingredients for its own products. These
considerations have been invoked and applied dispositively in many cases involving sales of
silica, in bulk and in bags, to foundries and other industrial purchasers. These considerations
have also been applied in the context of other industrial materials and products as well.
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STATEMENT OF UNDISPUTED FACTS
I. Plaintiffs’ Work History
In early 1990, David Rickicki and his wife filed this action in Cattaraugus County
alleging negligence, breach of warranty, strict liability and nuisance. They sought damages for
personal injuries Mr. Rickicki allegedly sustained while working at Dexter (now owned by
Henkel Corporation, and formerly known as Dexter-Hysol or Hysol Company, see
96] Dexter manufactures electronic equipment components and circuit boards. [R. at 88] Some of the component ingredients in the circuit boards were epoxy resins, silica, fiberglass and other chemical materials. [R. at 89] Dexter purchased the raw materials and chemicals for its products from many industrial vendors. Silica sand was supplied to Dexter by several different companies, including Defendants Unimin and U.S. Silica. Defendants supplied silica to Dexter in bags. These bags were opened and their contents were poured into the machinery in the
Dexter plant, which mixed and blended the silica with other constituent ingredients of Dexter’s
products, in the “pre-blend” department.
Rickicki worked at Dexter from late 1970, until April 1988. [Rickicki Transcript
submitted as Record Exhibit “N”, hereinafter “Rickicki Trans.” at 82] For the first year and a
half to two years, Rickicki worked as a packager, where he did not work directly with silica
materials. [Rickicki Trans. at 84] In 1972, he was transferred to the pre-blend area, where silica
was mixed with resins and other chemicals in large blenders. In this position, Rickicki was
responsible for opening the bags of materials and pouring the contents into the blenders.
[Rickicki Trans. at 505] Rickicki worked as a pre-blender for 13 or 14 years. [Rickicki Trans. at
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85] For a few years, before being diagnosed with simple silicosis in 1988, Rickicki also worked
in other departments, where he did not handle silica materials directly. [Rickicki Trans. at 88-
89, 507-509] Rickicki left Dexter in 1988, when he began to receive workers’ compensation
benefits. [Rickicki Trans. at 258-264] Rickicki also alleges that he was exposed to asbestos,
resins, and fiberglass in the course of his employment, none of which was supplied by either
Unimin or U.S. Silica. [Rickicki Trans. at 88-89]
In November 1997, Michael Crowley and his wife filed their action, also in Cattaraugus
County. [R. at 120-167]. Like the Rickickis, the Crowleys seek damages for personal injuries
allegedly sustained from work at Dexter. Crowley started work as a packager in 1973. [Crowley
transcript submitted as Record Exhibit “O”, hereinafter “Crowley Trans.” at 50] Crowley’s
initial assignment was as a “packager/operator,” which involved filling bags with powders from
drums. [Crowley Trans. at 52, 70, 72] This packaging operation took place across the hall from
the pre-blend area. [Crowley Trans. at 67] Crowley worked 14 months as a packager, at which time he was laid off for a year. [Crowley Trans. at 79, 88] His employment records show that
he was laid off from January 1975 to February 1976. [Crowley Trans. at 88] Crowley believes
he went to work in the pre-blend area, when he returned from layoff. [Crowley Trans. at 89] In
May 1976, he became an extruder operator, which position he held until November 1994, when
he claims to have discovered that he has silicosis. [Crowley Trans. at 137].
II. The Pervasive Medical Knowledge and Governmental Regulation of Silica
Silica is a naturally occurring mineral that is mined because of its utility in a number of
industrial applications. In its natural state, silica is harmless, as the silica particles are non-
respirable. In the course of industrial usage, however, silica can become fragmented into
9 respirable particles. The dangers of inhaling silica in industrial use have been known for centuries. Silicosis is “one of civilization’s oldest known occupational diseases.” (Corn,
Historical Aspects of Industrial Hygiene – II. Silicosis, 41 Am. Indus. Hyg. Ass’n J. 125 (1980)).
[R. at 294-302] References to dust diseases appear in ancient medical literature, which described the association between mining, dust and disease. [R. at 296] By the end of the 19th century,
“the significance of occupation as an influence upon the occurrence of silicosis was established.”
[R. at 297] Numerous federal studies were conducted in the early twentieth century which lead to an increase in the awareness of the dangers of silica exposure. [R. at 298]
Rapid industrial growth, combined with progressive labor legislation and workers’ compensation laws, led to greater awareness of silicosis in early 20th century America. [R. at
297] Studies, in the early 1900s, revealed that serious silicosis was prevalent among miners, granite quarry workers, and cement workers. [R. at 297] Further studies conducted in the sandstone, marble, pottery and abrasive blasting industries also showed significant numbers of silicosis cases. [R. at 297] By the 1930s, it was well established and widely understood that:
• Silicosis was an industrial disease caused by excessive inhalation of respirable crystalline silica dust;
• The development of silicosis was dose-dependent; and
• Silicosis could be prevented through the use of engineering controls.
[R. at 297]
In 1933, the U.S. Bureau of Labor Statistics issued an important Bulletin, “Occupation
Hazards and Diagnostic Signs,” which was based upon published works from numerous sources, including N.Y.’s Bureau of Industrial Hygiene, Harvard School of Public Health, U.S. Bureau of
Labor Statistics, and U.S. Public Health Service. [R. at 380] The Bulletin noted that “[l]arge numbers of industrial physicians, directors of compensation boards, factory inspectors, safety
10 engineers, industrial rehabilitation agents, faculties of medical colleges, and . . . general practitioners of medicine” had requested copies of earlier editions and had endorsed its findings and recommendations. [R. at 379] The Bulletin listed “Dust” as one of nine major hazards of employment, and emphasized that dust containing free silica causes serious lung disease, silicosis. [R. at 399] This federal Bulletin recommended ways to decrease exposure to silica dust, including wetting, using exhaust systems or enclosed chambers, and using helmets covering the head and neck, “preferably those which permit supplying air through a pipe from non-dusty areas.” [R. at 399-400]
The gains made in understanding silicosis and its prevention were set back during the
Great Depression, when “workers were willing to face any known or unknown danger in order to receive a paycheck.” [R. 298] In the early 1930s, a Union Carbide subsidiary contracted to build a tunnel through the Hawk’s Nest Mountain, near Gauley Bridge, West Virginia. [R. 298]
In what became known as the “Hawk’s Nest Tunnel tragedy,” at least 476 of the 2,000 men employed on the project died of acute and accelerated silicosis after drilling through deposits of nearly pure silica. Another 1,500 became disabled. [R. 298] Following widespread publicity,
Congress held hearings and concluded that the mining project was conducted “‘with grave and inhuman disregard of all consideration for the health, lives and future of the employees, . . . ’.”
The Committee declared: “[S]ilicosis is one of the greatest menaces among occupational diseases.” [R. at 299]
The Hawk’s Nest tragedy prompted Secretary of Labor Frances Perkins, in 1936, to convene a National Silicosis Conference, which was attended by 200 representatives of labor, industry, government, the public, insurance carriers, and the medical, engineering and legal professions. After a year-long investigation, Conference issued a report, published by the U.S. in
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1938, detailing “how silicosis occurs, where it occurs, and what the disease is.” See transcribed
text of “Stop Silicosis,” a 1938 film produced by the Department of Labor. [R. at 438-440 and
accompanying CD of digitized film in appellate record at Exhibit “O”].
In 1938, U.S. Department of Labor produced a newsreel film, entitled “Stop Silicosis,” in which Secretary Perkins discussed the results of the National Silicosis Conference. The newsreel graphically depicts silica use in several industrial settings, and states that millions of American workers “are dangerously exposed to silica dust.” The newsreel narrator affirms: “We know the practical engineering methods which will control the death-dealing dust,” and concludes with the statement that “silicosis can be entirely prevented.” Viewers are urged to contact the federal
Division of Labor Standards for additional information.
Perhaps taking a cue from Secretary Perkin’s efforts, Hollywood made its own contribution to silica awareness. In 1938, MGM Studios released a film of A.J. Cronin’s best- selling novel, The Citadel. The movie, which was nominated for an Academy Award for Best
Picture, featured Robert Donat as a doctor whose patients were stricken with silicosis, and who worked to obtain safe workplace conditions for them.
In 1943, the Department of Labor, again focusing on silica hazards, produced a document, “Silicosis, Cause and Prevention,” which described the causes and diagnosis of silicosis. [R. at 441-442] A section on “Prevention” discussed “What Employers Should Do,” and recommended that employers “[k]eep the air free of silica dust,” and admonished that
“[r]espirators are no substitute for silica-free air.” [R. at 442] Workers were advised, “to use the protective equipment supplied by your employer,” and to “[c]ooperate with the management, individually or through your union, in the measures to control the silica dust.” [R. at 442]
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On the judicial front, in 1949, the U. S. Supreme Court, following the lead of the New
York Court of Appeals, declared it to be a matter of common knowledge that breathing silica
dust “is injurious to the lungs and dangerous to health,” a fact the plaintiff’s employer “was
bound to know.” Urie v. Thomas, 337 U.S. 163, 180 (1949), citing Sadowski v. Long Island
R.R., 292 N.Y. 448, 456 (1944).
III. New York Regulations
Well before broad federal safety regulation of the workplace, New York was in the
forefront of silica awareness and safety. Starting in 1913, New York’s Department of Labor
published reports of investigations and guidance for industry, on silica hazards. From the 1950s
on, New York comprehensively regulated the use of crystalline silica in the industrial workplace.
These regulations applied to Dexter, the Plaintiffs’ employer, and purchaser of crystalline silica
in these cases.
Initial efforts in New York focused on foundries, where whole and ground crystalline
silica was used in metal casting and cleaning. A 1913 report by the Factory Investigation
Commission urged that “every possible precaution should be taken to minimize the danger from
dust which, as statistics show, renders the foundry worker very susceptible to pulmonary
troubles.” [R. at 528-533] In 1915, the state promulgated extensive work rules for foundry
operations. [R. at 534] On September 1, 1935, silicosis became a compensable disease under
New York law. [R. at 536]
New York’s efforts to protect workers from silica exposure in the construction industry
achieved national recognition in 1940, when LIFE magazine published a story describing
measures taken by the state to safeguard workers on an 85-mile tunnel constructed as part of the
Delaware Aqueduct. [R. at 537-539] The tunnel project required thousands of workers to drill
13 through rock made of quartz (crystalline silica). Intent on avoiding a repeat of the Hawk’s Nest tragedy, the state’s Industrial Hygiene Division imposed safety measures on the project, including wet drilling, elaborate ventilation, and air sampling. LIFE declared the precautions to be “[a] triumph of preventative medicine.” [R. at 539]
New York courts also have been in the forefront of recognizing the hazards of silica exposure, and addressing the legal implications of knowledge of those hazards. The Court of
Appeals in Sadowski v. Long Island R.R., 292 N.Y. 448 (1944), held 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.” Id. at 456. New York has long recognized a common-law duty of employers to provide a safe workplace, a duty that was codified in New
York’s Labor Law §200, enacted in 1921.
In 1956, before OHSA regulations, and long before Plaintiffs worked at Dexter, New
York promulgated “Industrial Code Rule No. 12 – Control of Air Contaminants,” which governed “all processes and operations releasing or disseminating air contaminants in any workroom or work space” (§ 12.1), and squarely defined the employer’s role in protecting workers. [R. at 540-567] Silica was specifically covered by these 1956 regulations. [R. at 567]
Section 12.2 of the Rule, “Responsibility of employers,” requires:
Every employer shall observe and effect compliance with the provisions of this rule relating to prevention of air contamination and to providing, installing, operating and maintaining control or protective equipment, and shall instruct his employees as to the hazards of their work, the use of such control or protective equipment and their responsibility for complying with this rule.
Section 12.25 specifically identifies industrial processes of screening and mixing that create “air contaminants,” such as free silica [R. at 559]; these were precisely the operations of Dexter’s
14 employees in the pre-blend area. The employee’s responsibility was, and is, to use the controls and equipment provided by his employer for his protection. § 12.3. [R. at 542]
New York’s 1956 regulations, like the federal regulations that would follow in the 1970s, focused on avoiding exposure to hazardous substances such as crystalline silica in the first instance. Section 12.7, Prevention, requires that “All processes and operations where practicable shall be so conducted or controlled as to prevent avoidable creation of air contaminants.” Section 12.9, General control methods, specifies “[o]ne or more of the following methods . . . control dangerous air contaminants:
1. Substitution of a material which does not produce air contaminants;
2. Local exhaust ventilation at the source of generation of the air contaminant;
3. Dilution ventilation in any work space in which air contaminants are generated or released;
4. Application of water or other wetting agent to prevent air contaminants;
5. Other methods approved by the board.
[R. at 544] Section 12-29, “Maximum allowable concentrations – evidence of dangerous air contaminants,” provides that air contaminants in quantities greater than those listed “shall constitute prima-facie evidence that such contaminants are dangerous air contaminants.” In a chart entitled “Mineral Dusts,” the 1956 regulations specifically imposed a maximum exposure for free crystalline silica, depending upon the percentage concentration of silica in the total dust.
In 1958, New York promulgated a revised Rule 12, which continued the extensive regulation of processes involving silica [R. at 568-587] The revised Rule, at § 12.3, gave an even more detailed description of the responsibilities of employers to mandate compliance with air monitoring, ventilation, respiratory programs, and worker education. [R. at 571-572] Section
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12.6 of the 1958 Regulations, “Prevention of air contamination,” mandated that “All
operations producing air contaminants shall be so conducted that the generation, release or
dissemination of air contaminants is kept at the lowest practicable level.” [R. at 572] Rule 12
was revised again in 1963, and in 1971, each time resulting in greater specificity of the
employer’s responsibility for safe handling of materials that gave rise to air contaminants, which
continued to be defined to include silica dust. [R. at 588-605, 606-616]
IV. The Advent of the Federal Occupational Health & Safety Administration (OSHA)
In 1970, the federal government moved beyond an investigative and advisory role and enacted sweeping legislation governing safety of industrial activities, including those involving silica. The Occupational Safety and Health Act (OSH Act) was signed into law in 1970, as Mr.
Rickicki was beginning his employment at Dexter, and years before he started to work with silica in the pre-blend area. Similarly, the advent of OSHA occurred before Mr. Crowley began his employment at Dexter, and well before he started working in the pre-blend area with silica.
The OSH Act created OSHA within the Department of Labor, and the National Institute for Occupational Safety and Health (NIOSH) within the Centers for Disease Control and
Prevention (CDC). The stated goal of the OSH Act was, and remains, “to assure as far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.” The general duty clause requires “Each employer [to] furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 USC § 654(a)(1). See also “All About OSHA,” OSHA Publication No. 2056-
07R, 2003 [R. at 443-485] Employers must, among other things:
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• Keep workers informed about OSHA and safety and health matters;
• Comply with standards, rules and regulations issued pursuant to the OSHA Act;
• Minimize or eliminate potential hazards;
• Provide employees with appropriate personal protective equipment, and ensure that they use it; and
• Warn employees of potential hazards.
[R. at 450-451]
In 1972, OSHA promulgated permissible exposure level regulations for workplace exposures to crystalline silica dust. 29 CFR § 1910.1000, Table Z-3. Because silica exposure and control technology was so well understood, and previously regulated under the Walsh-Healy
Public Contracts Act, OSHA adopted its workplace silica exposure standard, in 1972, without detailed factual findings. Ohio Cast Products, Inc. v. Occupational Safety & Health Review
Comm’n, 246 F.3d 791, 794 (6th Cir. 2001). The regulations emphasize that “administrative or engineering controls must first be determined and implemented whenever feasible.” 29 CFR §
1910.1000(e). Where such controls “are not feasible to achieve full compliance,” the regulations state that “protective equipment or any other protective measures shall be used ...” Id.
The OSH Act requires employers to supply their workers with respirators “when such equipment is necessary to protect the health of the employee.” Employers must “provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protection program which shall include the requirements outlined in paragraph (c) of this section.” 29 CFR §
1910.134(a)(2).
To ensure that its regulations would be understood and enforced, in 1972, OSHA issued a
Directive to its Field and National Offices specifically addressing industry use of crystalline
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silica to spell out what procedures OSHA should use on inspections, when to issue citations, and
what employers should do to comply with the new federal regulatory regime. [R. at 486-527]
In 1985, the federal government launched another major initiative designed to protect
workers from hazardous substances, including silica, in the workplace. The Hazard
Communication Standard (HCS), 29 CFR § 1910.1200, was designed “to ensure that the hazards
of all chemicals produced or imported are evaluated, and that information concerning their
hazards is transmitted to employers and employees.” Hazcom requires employers to provide information to employees about hazardous substances, such as silica, by means of a hazard communication program, labels and other forms of warning, Material Safety Data Sheets, information and training. 29 CFR § 1910.1200(b)(1). Employers must:
• develop and implement a written hazard communication program for their workplaces (29 CFR § 1910.1200(e)(1));
• compile a list of every hazardous chemical used in their workplaces (29 CFR §1910.1200(e)(1)(i));
• maintain copies of the MSDS for each hazardous materials in the workplace (29 CFR § 1910.1200(g)(8));
• provide employees with effective information and training on hazardous chemicals in their work area (29 CFR § 1910.1200(h)(1)).
Under Section 18 of the OSH Act, states with their own safety and health programs may receive OSHA approval, and funding, if the state’s program is at least as effective as federal
OSHA requirements. [R. at 456] See also http://www.ehso.com/osha_States.htm. New York’s
Occupational Safety and Health Plan has met the requirements of an OSHA-approved state plan.
Id. During the relevant employment of Plaintiffs, New York and federal regulations both mandated specific duties and provided guidance to their employer, Dexter, on the safe and appropriate use of crystalline silica in its workplace.
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V. Dexter’s Knowledge of the Potential Hazards of Silica
Dexter was well informed of the dangers of silica dust independent of the many warnings which Defendants provided. Dexter’s managers and supervisors had effective knowledge either from their previous education and training, or from their very earliest years at the plant. The testimony of Dexter’s management, as well as outside professionals familiar with the company, showed that Dexter was a sophisticated user of silica throughout Plaintiffs’ employment at
Dexter.
A. James P. Hornburg
James Hornburg, a Dexter plant supervisor, held both undergraduate and graduate degrees in chemistry. [R. at 621] Before starting at Dexter in 1949, Mr. Hornburg taught chemistry at St. Bonaventure University. [R. at 1292 - 1293] According to Mr. Hornburg, in the late 1950s, the plant began to produce epoxy resins, which involved the use of solid materials, such as silica and fiberglass, as fillers and hardening additives. [R. at 624-625] From his university training and his teaching in the 1940s, Hornburg understood that silica, and specifically crystalline silica, could cause silicosis. He understood that prolonged periods of exposure were required, but that shorter periods of intense exposure could also cause silicosis.
[R. at 650, 661] Hornburg acknowledged that as far back as the 1950s, Dexter’s management was concerned about airborne particulate from the manufacturing processes at the Olean facility.
[R. at 645-646] Indeed, silica was always a specific, known concern, which invoked an interest in proper ventilation and exhaust technology to protect everyone in the workplace. [R. at 647-
648]
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Hornburg worked in research and development between 1958-1967. [R. at 626-627] In the late 1960s, he assumed managerial duties, which he retained until his retirement in 1995. [R. at 628] From the mid-1970s on, Mr. Hornburg was the regulatory compliance officer in Olean.
In 1980, Hornburg became the manager for regulatory affairs for the Olean plant. [R. at 633]
He subscribed to, and regularly reviewed, the Federal Register, and he was familiar with OSHA and its regulations. [R. at 660] His daily review of the Federal Register included vigilance not only for new transportation regulations, but also for air monitoring regulations of substances used in the Olean plant. [R. at 634]
Dexter’s managers belonged to a number of professional societies, such as the Society of the Plastic Industry. [R. at 630] Hornburg served on that Society’s Test Methods Committee, which, in 1980, became known as the Regulatory Affairs Committee, which dealt with air monitoring issues. [R. at 630, 632] Mr. Hornburg was a member of the American Chemical
Society, and received and read its technical publications. [R. at 639-640]
In 1977, Dexter’s corporate headquarters formed a regulatory affairs committee, on which Hornburg served from its inception. [R. at 635] This committee, with representatives from Dexter plants across the U.S., met twice a year to discuss workplace regulation. [R. at 636]
According to Mr. Hornburg, he first started interacting personally with OSHA in the early 1980s. [R. at 637] In the mid-1970s, he became familiar with the American Conference of
Governmental Industrial Hygiene (ACGIH) and its recommended workplace exposure levels
(Threshold Limit Values or TLVs) for various substances. [R. at 638] In addition, he was aware that the Williams-Steiger Act (OSH Act) adopted the ACGIH TLVs in the 1970s. [R. at 639]
20
B. Karl Barth
Mr. Karl Barth started with Dexter in 1955, and worked at the plant until he retired in
1991. [R. at 679, 682] Barth started as production worker, and by the late 1950s was placed in charge of receiving. [R. at 683] In the 1950s, while a production worker, Barth learned from his foreman that silica was harmful to lungs. [R. at 703-704]
In the early 1960s, Barth worked with molding and dry powders. He soon became the foreman there, and he remained until the late 1980s. [R. at 684-687] In the late 1980s, Barth became the safety coordinator for 5 or 6 years, until he retired in 1991. [R. at 688]
As a foreman, Barth had authority to reprimand employees who were not wearing their respirators. [R. at 697] As safety coordinator, Barth worked with Mr. Hornburg on implementing and complying with OSHA requirements. [R. at 688] Both as a foreman and later as a safety coordinator, in which capacities he supervised Rickicki. By this point in his career,
Barth had long been aware of the dangers of silica dust and necessary safety precautions. [R. at
703-705] Barth knew that a mask or air purifier was necessary when working with silica. [R. at
705] Barth was also familiar with OSHA standards for silica dust. [R. at 706-709; 1006-1007]
After Barth became a safety coordinator, he was familiar with MSDSs for silica and many other hazardous dusts and powders used at the Olean plant. [R. at 1003-1005] Barth received training from Liberty Mutual when he became safety coordinator, and attended annual safety seminars, conducted by Liberty Mutual, which gave him further training on control-dust technology. [R. at
689-690]
C. Dexter’s Air Monitoring at its Olean Manufacturing Facility
In the 1970s through the 1990s, Dexter engaged the loss-prevention services of its workers’ compensation insurance carriers, Liberty Mutual Insurance Company (“Liberty”) and
21
Wausau Insurance Company (“Wausau”). Liberty has been in business, for over 90 years,
insuring employers for workers’ compensation losses. [R. at 830-834] Liberty has historically
employed industrial hygienists and technical personnel, to carry out risk evaluations. [R. at 835]
Liberty provided industrial hygiene assessments of Dexter’s Olean facility, in the 1970s through
the 1990s. These services included air sampling of silica, inspections of ventilation, assessments
of safety procedures, and safety seminars for supervisors. [R. at 823-827]
Air monitoring for silica dust levels at the Olean plant was performed by Dexter, as well as by its insurance carriers, Liberty and Wausau. Air monitoring was prompted by a desire to protect worker safety and to comply with regulations. [R. at 641, 655, 712] A Liberty engineer,
William Pudlewski, worked as a specialist on the Dexter account. [R. at 840-843] In connection with his work for Dexter, Mr. Pudlewski was familiar with Liberty’s air monitoring at Olean in the mid-1980s, including the pre-blend area, where Liberty specifically monitored for silica. [R. at 843-844] Mr. Pudlewski testified that Dexter contracted with Liberty for these services to prevent losses, not because Dexter had sustained excessive losses through its workers’ compensation insurance coverage, but rather because Liberty and Dexter were engaged in a
“very pro-active” effort to avoid insured-against losses, included losses due to the use of crystalline silica dust in the workplace. [R. at 848-849] When Pudlewski first became involved with Dexter, the company already had a formal respirator program, as contemplated by both New
York and OSHA regulations. [R. at 850] Dexter, however, was attempting to improve its program with respect to enforcement of employees with facial hair. [R. at 851] Liberty regarded
Dexter as knowledgeable about potential hazards in its workplace, and as a company that could be trusted to carry out its regulatory obligations under state and federal law to protect its
22
workers. In Liberty’s view, Dexter and Mr. Hornburg were very much sophisticated in how to
protect the workers from the hazards in the workplace. [R. at 852-855]
In addition to Liberty’s air sampling at the Olean facility [R. at 718-720], Dexter
conducted its own air monitoring on several occasions. [R. at 715-718] Wausau also conducted
air monitoring in the 1980s for silica and other dusts in the pre-blend area, and recommended improvements in regulatory compliances. [Supp. R. at 6-20] The documentary and testimonial evidence show Dexter’s familiarity with the applicable exposure limits and standards for crystalline silica in the workplace.
Mr. Dan Adley, another loss-prevention representative for Liberty, helped to service the
Dexter plant in Olean. [R. at 866] Working with Mr. Hornburg, Mr. Adley helped to implement the loss-prevention plan at the Dexter plant specifically relating to silica exposure. [R. at 867-
868] Mr. Adley described Mr. Hornburg as being “one of the most knowledgeable and sophisticated” individuals with whom he had worked in an individual facility setting. [R. at 868]
D. Engineering (Ventilation) Controls at Dexter
According to both Mr. Barth and Mr. Hornburg, Dexter sought to protect its workers from silica dust by the use of both ventilation systems and the fall-back use of personal respiratory protection. [R. at 690] Under N. Y. regulations, as well as later OSHA regulations, employers are obligated to provide adequate ventilation to reduce exposure levels to within safe levels. Only if engineering controls prove inadequate, do regulations contemplate and require the use of appropriate personal respirators. Dexter’s approach was thus consistent with industrial hygiene science and regulatory requirements of controlling exposures, and providing appropriate respiratory protection when adequate engineering control of silica dust is not possible.
23
The mechanical ventilation system at Dexter evolved over time, as production methods,
equipment, and volume changed. [R. at 649] In the mid 1970s, in the pre-blend area, the ventilation system consisted of hoses known as “elephant trunks,” at the point where bags were dumped into the opening of blending machines. [R. at 650, 691] As a result of Liberty air samples and consultations in the 1980s, Dexter again modified its ventilation system by replacing the “elephant trunks” with slot hood ventilation. [R. at 655, 692-695]
E. Dexter’s Respirator Policy
Respirators were available to Dexter and in use at its plants, from before the time plaintiffs’ employment began. Dexter provided its employees with information about respirators and disciplined them for failing to wear respirators. [Supp. R. at 696-698, 995-998] The company had a written respirator program and Dexter’s safety coordinator, Karl Barth, was responsible for selecting respirators for the workers. [R. at 993-994] The company sent its safety coordinators to seminars where they learned about workplace safety issues including the handling of materials such as silica. [R. at 689, 992]
Both Barth and Hornburg noted that Dexter’s safety program involved the use of both ventilation and personal air respirators with replaceable cartridges. [R. at 690] Double-canister respirators were available and in use at Dexter from at least 1967, forward. (See Lehmann trans. attached as Exhibit “C” to Joint Affirmation dated April 30, 2014 at pp. 97-98, 133) The use of double-canister respirators at the Olean plant was established by Dexter’s newsletters. (Exhibit
“J” to Joint Affirmation dated April 30, 2014 at Dodd010-011). Mr. Hornburg testified that he
knew workers were required to wear masks in the 1970s when they were working with silica.
[R. at 659] Also, shortly before OSHA was created, Dexter started using a color coded diamond
sticker to place on materials delivered to the plant. Red was for flammable, blue was for acid
24
and yellow was for powders and dust. [R. at 708-709] Dexter had training sessions with
employees to explain that if a yellow diamond was placed on an item, they were required to wear
a mask when they handled it. [R. at 709]
Dexter provided masks to its employees, including Rickicki and Crowley. [R. at 798,
800; Rickicki Trans. at 372-374] When Rickicki and Crowley first started in the early 1970s, these masks were paper; a few years later, they were changed to rubber filtered masks. [R. 802;
Rickicki Trans. at 402-407] Dexter provided mixing instructions to their employees. For products that involved blending silica with resins and other materials, these instructions included warnings that a mask must be worn while handling these materials. [R. at 705-706]
Dexter has acknowledged that during the Plaintiffs’ employment, it had in place a
respirator policy, [R. at 756-757] which was confirmed by Mr. Barth. [R. at 696] These
respirators were used “to reduce inhalation of dust and vapors” and were used in “the pre-blend
area when handling materials and loading blending equipment.” [R. at 757] According to
Dexter, it gave extensive instructions to employees on the need for respirator usage, along with
how to use and clean them properly. [R. at 757]
According to Mr. Barth, all employees in the powder department were sent to have a
physical and a chest x-ray in the 1970s or 1980s. [R. at 699-700] Mr. Barth recalls that Mr.
Rickicki was one of the first to get diagnosed by this physical. [Supp. R. at 22]
F. Dexter’s Disciplinary Program
Dexter also had a disciplinary program to address employees who failed to comply with
the respirator program. [R. at 754, 757] Foremen had the authority to reprimand employees who
were not wearing their respirators. [R. at 698] This program had progressive penalties starting
with oral warnings, progressing to written warnings, and culminating with employee termination.
25
[R. at 697-698, 995-996] Mr. Rickicki was orally reprimanded at least half a dozen times for
not wearing a mask when he should have been. Barth confronted Rickicki over these failures, in
the 1970s, and explained to him the necessity for wearing appropriate protection to mitigate the
danger from dust in the air. [R. at 710-711, 1008-1009]
Mr. Rickicki acknowledged that his employer, Dexter, provided its employees, including plaintiff, with a mask. [Rickicki Trans. at 372-374] In the early 1970s, Dexter provided paper masks to its employees. A few years later, Dexter began providing rubber filtered masks.
[Rickicki Trans. at 402-405] Later, Dexter began providing its employees with canister masks.
[Rickicki Trans. at 405-406] Mr. Rickicki further acknowledged that it was “common knowledge” and “generally known” that employees were required to wear masks in the plant.
[Rickicki Trans. at 950] Nevertheless, Rickicki testified that he used his own judgment when deciding to wear a mask, and that he only wore a mask when conditions were dusty. [Rickicki
Trans. at 408-410; 903-05]
Similarly, Mr. Crowley confirmed that Dexter provided its employees with paper masks in the 1970s and rubber masks beginning in the 1980s. [R. at 798, 800, 802-803] Like Rickicki,
Crowley also claims to have used his own judgment whether to wear a mask, and he only wore a mask when conditions were dusty. [R. at 797-799]
G. Safety Meetings
Dexter understood that the importance of communicating safety information of materials and machinery to its employees. During Plaintiffs’ employment, Dexter held meetings to discuss health and safety matters. [R. at 760-761] These meetings included discussions of respirator use and care, safe handling of materials, reviewing MSDSs, and using other safety equipment. [R. at
26
761] Specifically, Dexter maintained that during the Plaintiffs’ employment, it advised all its
employees of potential health hazards associated with silica exposure. [R. at 761-762]
In addition to providing safety training, Dexter posted suppliers’ MSDSs in a large notebook, located in a public area for all employees to review. [R. at 658, 702] Mr. Rickicki confirmed that Dexter made available MSDSs for every product in the plant and that he began to review the suppliers’ MSDSs, starting in 1987, which was when the federal Hazards
Communication Standard went into effect. (Rickicki Trans. at 540-541, 1045] Mr. Crowley also recalled seeing the suppliers’ MSDSs in the 1980s and 1990s. [R. at 805-807] Dexter also monitored its employees who were at risk for developing silica-related diseases by providing
regular X-rays and physicals to employees working in the powder area of the plant. (Barth trans.
66-68). [R. at 699, 999-1000]
H. OSHA Inspections and Compliance
James Hornburg was the Dexter manager in charge of dealing with OSHA and state
regulatory agencies. [R. at 767] OSHA conducted regular inspections of the Olean plant, and
received an OSHA citation on one occasion, in 1981, for exceeding permissible exposure levels
for silica, as well as for failure to enforce its respiratory protection program for employees in the
pre-blend area. [R. at 656-657, 766-767] Dexter responded, making various ventilation and administrative changes, and the plant passed subsequent tests. Business records produced by
Dexter demonstrate that after receiving the 1981 OSHA citation, Dexter instituted changes in its operating procedures, to achieve full compliance with OSHA regulations. [R. at 808] In 1981,
Dexter sent a notice to all personnel to inform them that respirator use in the pre-blend area was mandatory in the pre-blend area for workers dumping bags of materials in to the blenders. The notice also reported that Dexter was investigating a new respirator to replace the current canister-
27
type respirator, but further investigation was required to determine the acceptability of the new
model respirator. [R. at 808] Dexter also modified its dust collection and ventilation
equipment, and kept OSHA regulators advised as to its progress in achieving full compliance.
[R. at 809-811]
In November 1983, at Dexter’s request, the N.Y. Department of Labor OSHA Consulting
Service inspected the Olean plant to help implement abatement procedures following the OSHA
citation. [R. at 812-818] This Service conducted air testing in the pre-blend area, which was the
subject of Dexter’s OSHA citation for excessive levels of silica dust. [R. at 814] The testing
included the use of personal sampling pumps attached to employees who were working with a
ribbon blender that Dexter had equipped with a “special self-contained exhaust ventilation and air-cleaning package unit designed to capture the dust generated during the loading of the blender.” [R. at 814] The results of the test showed “compliance with OSHA standard
1910.1000(c) table z-3 - mineral dusts.” [R. at 815]
I. Warnings From Unimin and U.S. Silica
As a manufacturer of products, Dexter was required to produce its own MSDS for its finished products. Mr. Hornburg was responsible for preparing Dexter’s MSDSs for the products made at the Olean plant [R. at 987] Hornburg testified that he started preparing MSDSs about five years before OSHA requirements came into being, due to the fact that the Navy required MSDSs before OSHA did. [R. at 987-988] Hornburg testified that Dexter was also involved in a pilot program with CDC/NIOSH regarding MSDSs. [R. at 988] In preparing
Dexter’s MSDSs, Hornburg consulted the MSDSs of Dexter’s many vendors of raw and constituent materials. Hornburg understood that information about proven and potential adverse health consequences of the product has always been an important part of the MSDS. Because
28
Dexter’s products frequently had raw materials encapsulated, the company’s MSDSs would
identify constituent ingredient hazards only if subsequent machining or grinding was anticipated
such that the ingredients could become aerosolized. [R. at 652 - 54]
In addition to the internal knowledge and experience of its own employees and Liberty
Mutual, Dexter also received literature and warnings from its suppliers of silica on the dangers associated with excessive silica exposure. Mr. Hornburg had seen warnings on bags of silica as early as the 1950s. [R. at 1367] Unimin and U.S. Silica, as well as many other vendors, provided warnings with the materials they sold to Dexter, in the form of package labeling,
MSDSs, warnings on sales documents and technical literature, and mailings with regulatory or instructional materials. Both Unimin and U.S. Silica had in place an intensive and redundant system of conveying the known dangers of silica to its consumers, including Dexter. [R. at 869-
877, 878-983] Warnings have been conveyed through a variety of methods including bag warnings, invoice warnings, mass mailings, MSDSs, bill of lading warnings and warning tags.
[R. 869-885] Dexter made its vendors’ MSDSs, such as those supplied by Unimin and U.S.
Silica, available to its employees. [Supp. R. at 699, 999-1000]
Unimin and its predecessor, Bell Rose Silica Company, have always placed a written silica warning on all bagged product sold to Dexter. [R. at 879-886, 890-891] Since the time that Unimin merged with Bell Rose Silica Company in 1980, all bags have included written warnings of the dangers of unprotected silica exposure on its invoices to its customers. [R. at
880] These warnings specifically stated “Contains Free Silica – Do Not Breath Dust. May
Cause Delayed Lung Injury (Silicosis). Follow OSHA Safety and Health Standards for
Crystalline Silica (Quartz).” [R. 880]
29
In 1977, Unimin also began to send mass mailings to its customers warning of the
dangers of silica. [R. at 883, 904-909] This mass mailing provided Unimin’s MSDS for silica and the NIOSH Recommendation for Crystalline Silica Standard (1974) to Dexter. [R. at 883-
884, 904-909] Unimin continued with this practice of periodically mailing all customers, including Dexter, similar letters in 1985, 1989 and 1992. [R. 883-884] These mailings always contained MSDSs along with additional literature from OSHA, NIOSH, NISA and IARC which related to medical or industrial hygiene information regarding the potential hazards of silica.
Dexter made the MSDSs, supplied by companies such as U.S. Silica and Unimin, accessible to its employees. [R. at 702, 1001-1005] In 1983, Unimin’s invoices and bills of lading also began to carry warnings, similar to those found on the bags and in customer mailings. [R. at 881-885]
U.S. Silica, and its predecessor companies Pennsylvania Glass Sand (PGS) and Ottawa
Silica Company (OSC), provided warnings to customers, including Dexter, in various forms,
ranging from MSDSs to warnings on bags of silica, to dear customer letters with alerts about
changes in MSDSs and regulatory pronouncements, to warnings on sales and shipping
documents. These warning communications evolved over time, and increased in intensity, but
importantly, they began before either Mr. Rickicki or Mr. Crowley began to work in the pre-
blend area of Dexter’s Olean plant. Starting in 1971, PGS and OSC provided customers silica
MSDSs on request. These MSDSs warned that “repeated inhalation of dust in excess of the
threshold limit value over an extended period of time may cause injury to the lungs,” and that the
purchaser should follow OSHA standards for local exhaust, and provide, when appropriate, dust
respirators in compliance with OSHA standard set out in CFR § 1910.134. [R. at 869] The 1971
MSDS was revised, from time to time, with additional information, throughout the 1970s, 1980s,
and 1990s. [R. at 870 – 873] The U.S. Silica MSDSs never discussed constituent ingredients of
30 the silica sold, because the raw material sold was silica, in a pure state, in a form required by
Dexter for its manufacturing processes; silica has no constituent ingredients, except atoms of silicon and oxygen that make up molecules of silicon dioxide.
Starting in 1977, the predecessors of U.S. Silica began to distribute silica in bags that were imprinted with warning language: “Contains Free Silica – Do Not Breathe Dust. May cause delayed lung disease (silicosis). Follow OSHA safety and health standards for crystalline silica (quartz).” [R. at 870] In the same year, 1977, OSC placed warnings on invoices, order acknowledgements, and shipping documents sent to customers. PGS similarly labeled its invoices in 1978. [R. at 871]
Both U.S. Silica predecessor companies used “dear customer” letters to emphasize their warning communications to customers. In 1976, PGS sent dear customers letters with a revised
MSDS and copies of an OSHA monograph, Guidelines for the Control of Occupational
Exposure to Crystalline Silica and Abrasive Blasting. OSC sent customers its revised MSDS and the same OSHA publication in 1977. [R. at 869 – 870]
In 1977, OSC began to place warnings, similar to those on its bags of silica, invoices, order acknowledgements, shipping and technical documents, and price quotations. [R. at 870]
PGS began a similar practice of imprinting invoices with warning language, in 1978. [R. at 871]
In 1986, PGS became U.S. Silica, and then merged with OSC, in 1987. Throughout the
1980s, and into the 1990s, the predecessors companies, and then U.S. Silica, continued the practice of sending “dear customer” letters with revised MSDSs, and revising warning language on packaging, as well as invoices, order acknowledgements, and shipping and technical documents. [R. at 872 – 74] These customer communications included distribution of NIOSH,
31
OSHA, and World Health Organization documentation of the hazards of silica exposure, regulatory standards, and industrial hygiene preventive technology. [R. at 871 – 873]
J. Dexter Knew the Difference Between Crystalline and Amorphous Silica
Contrary to the suggestion of the Appellate Court, the evidence on this record demonstrates that Dexter knew the difference between crystalline and amorphous silica, and implemented protections against crystalline silica. Specifically, Henkel has made the following admissions:
• In and after 1970, and continuing into the 1990s, the Dexter Corporation, including its Hysol Division, employed persons with expertise in chemistry and material science, who understood the difference between crystalline and amorphous silica.
• In and after 1970, and continuing into the 1990s, the Dexter Corporation, including its Hysol Division, employed persons who understood the respective health hazards between crystalline and amorphous silica.
(See Henkel’s response to requests to admit attached to Joint Affirmation dated April 30, 2014 at
Exhibit “B”).
In addition, defendants deposed former Dexter employee Stanley Lehmann, who has testified on numerous occasions as a corporate representative of Dexter concerning the company’s knowledge of occupational dust hazards. Mr. Lehmann came to work at Dexter in
1969, prior to the start date of either plaintiff. (See Lehmann transcript attached to Joint
Affirmation dated April 30, 2014 at Exhibit “C” at p. 123-124). Mr. Lehmann testified that he understood “the distinction and differences between crystalline silica and amorphous silica.” Id. at 31. Lehmann also knew that crystalline silica was considered a more hazardous material, and that the workplace could be made safer by using amorphous silica. Id. at 33.
32
Former Dexter employee Maurice Edwards also provided an affidavit which is attached
to the Joint Affirmation dated April 30, 2014 at Exhibit “D”. Mr. Edwards has a chemistry
degree from Montana State University and served as a Laboratory Supervisor, Laboratory
Manager, Director of Product Development and Research Fellow for Dexter. Edwards Aff. at ¶s
2, 5-6. Mr. Edwards states unequivocally that the knowledge of his employer, Dexter, from 1969 through 2000, was consistent with the relevant state of art during this period. Edwards Affidavit at ¶9. Mr. Edwards states further, and unequivocally, that Dexter was knowledgeable about the chemical, health and safety profiles, and regulatory (OSHA) differences between crystalline and amorphous silica, throughout his employment with Dexter. Edwards Affidavit at ¶10. Mr.
Edwards states further that his employer, Dexter, was aware of, and knowledgeable about, the differences in:
• the applicable OSHA regulations,
• the levels of precautions to prevent inhalation, and
• the more severe potential consequences for workers’ respiratory health, from excessive
exposure to crystalline silica, as opposed to exposure to amorphous silica.
Edwards Affidavit at ¶10.
This additional testimony of Dexter employees coupled with admissions made by
Dexter’s corporate successor, Henkel, make clear that Dexter had in place knowledgeable
employees well versed with the ingredients used by Dexter in its manufacturing processes who
knew the differences between crystalline and amorphous silica during the times that plaintiffs
were employees with the company.
33
ARGUMENT POINT I
UNDER NEW YORK LAW, DEFENDANTS HAVE NO DUTY TO WARN CUSTOMERS OR THEIR EMPLOYEES, ON THE UNDISPUTED FACTS AND CIRCUMSTANCES OF THESE CASES, IN WHICH THE CUSTOMER HAD INDEPENDENT KNOWLEDGE OF SILICA HAZARDS, AND WAS UNDER LEGAL DUTIES TO WARN, SUPERVISE, MONITOR, AND PREVENT OVEREXPOSURE TO, THE PLAINTIFFS
A party moving for summary judgment, “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925
(1986). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” Id.
A. The Duty to Warn Under New York Law of Product Liability in Industrial Sales Involving Sophisticated Intermediaries Has Been Guided by the Principles of Restatement (Second) of Torts § 388
In New York, specific guidelines have not been formulated for the duty to warn.
Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 711, 405 N.Y.S.2d 448, 376 N.E.2d 920 (1978).
Decisions involving manufacturing and design defects are inapposite to warnings cases. Under
New York law, the duty to warn in strict liability is identical in nature and scope as the duty in negligence. Martin v. Hacker, 628 N.E.2d 1308, 1311 n.1 (N.Y. 1993). New York courts have frequently been guided by the ALI’s Restatement, particularly in the area of assessing the existence vel non of a tort duty to warn, as is done by the Restatement (Second) of Torts § 388
(1965)(“Restatement § 388”).
34
Most product liability cases involve products sold directly to consumers for their own use, without the involvement of professional intermediaries. New York law clearly has embraced the principles of Section 388, which restates the law in the context of sales of goods to sophisticated intermediaries. See, e.g., Lancaster Silo & Block Co. v. Northern Propane Gas
Co., 75 A.D.2d 55, 63 n.1 (4th Dept. 1980) (citing the basic guidelines for the duty to warn as set forth in Section 388); Petrie v. B.F. Goodrich Co., 175 A.D.2d 669 (4th Dept. 1991)(citing § 388 for analysis of defendant’s duty to warn); Chandler v. Northwest Engineering Co., 111 Misc.2d
433, 438 n.2 (Sup. Ct. Bronx County 1981).
Section 388 provides:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier:
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize it’s dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
In 1998, the ALI adopted a revision to those portions of Restatement (Second) of Torts, which focus on product liability. The principles of Restatement § 388 were carried forward in this new
Restatement. See Restatement (Third) of Torts: Products Liability § 2, and comment I
(1998)(recognizing that warnings are not always needed or helpful, and that over warning and confusion among competing warnings may reduce the efficacy of all warnings).
35
This doctrine, known as the “sophisticated intermediary” or “sophisticated user” defense,
is captured in Section 388, and especially in 388(b). Its rationale was eloquently summarized in
comment n to Restatement § 388: “[m]odern life would be intolerable unless one were permitted
to rely to a certain extent on others' doing what they normally do, particularly if it is their duty to
do so.” The law recognizes that to require a product or raw material supplier to warn every
possible user would result in impossible burdens, especially in the industrial context where
purchaser/employers have duties to maintain and control the safety of their premises. Many
other considerations enter into the doctrine, such as the great potential for confusion if multiple
suppliers attempt to provide authoritative warning communications to the purchasers’ workforce.
The responsibility for warning their employees is therefore properly limited to the purchasers,
who are in the best position to warn employees, such as Plaintiffs, who use the material. The
Restatement and the case law following Section 388 make clear that Defendants are entitled to rely upon their purchasers to give these warnings, and that such reliance is reasonable care. New
York has recognized that the sophisticated intermediary defense applies if the chain of distribution is such that the duty to warn ultimate users should fall exclusively on an intermediary in that chain, rather than on the manufacturer.
Section 388 is a rule of negligence, and under New York law, liability for failure to warn is dependent on a duty to warn in the first place. See, e.g., Billsborrow v. Dow Chem., 177
A.D.2d 7, 16 (2d Dept. 1992) (plaintiff alleging liability based on failure to warn must establish that manufacturer had duty to warn and that the failure to warn was a substantial cause of event which produced injuries). Under New York law, courts can decide as a matter of law that there was no duty to warn and that defendants discharged any duty to warn as a matter of law.
Lancaster Silo & Block Co. v. Golay & Co., 75 A.D.2d 55, 65, (4th Dept. 1980) 1980); Cf. Biss
36 v. Tenneco, Inc., 64 A.D. 2d 204, 207-08, 409 N.Y.S. 2d 874 (4th Dep’t 1978) (affirming dismissal in design defect case, in which manufacturer had informed purchaser, plaintiff’s employer, of available, optional safety devices; noting that purchaser was in best position, to use its special knowledge, about how to eliminate potential dangers).
B. Dexter Was a Sophisticated Intermediary Whom Defendants Had No Duty to Warn
Defendants had no duty to warn Plaintiffs, who worked for a company that itself was a sophisticated user of silica and was long aware of the dangers. There is no necessity to warn a customer already aware -- through common knowledge or learning -- of a specific hazard.
Bigness v. Powell Elec., Inc., 209 A.D.2d 984, 985 (4th Dept. 1994); see also Henry v. Rehab
Plus Inc., 404 F.Supp. 2d 435, 442 (E.D.N.Y. 2005) (defense to liability for failure to warn of product dangers exists when injured party had actual knowledge of danger).
Often, a user is knowledgeable because of experience in an industry or through his education. See, e.g., Travelers Insurance Co. v. Federal Pacific Elec. Co., 211 A.D.2d 40, 43
(1st Dept. 1995) (employees, electricians and engineers who had experience in electrical jobs were the “epitome of knowledgeable users”). However, the application of this doctrine does not require that the user be highly educated or technically proficient. See, e.g., McDaniel v.
Williams, 23 A.D.2d 729, 729 (1st Dept. 1965) (experienced beautician who was aware of danger involved in use of defendant’s product could not recover for damage sustained as result of inflammable propensity of product); Borowicz v. Chicago Mastic Co., 367 F.2d 751, 758 (7th
Cir. 1966) (applying New York law) (no need to warn plaintiff, an experienced carpenter, who knew the product).
Given this standard, Plaintiffs cannot claim that Dexter, their employer, did not have effective knowledge of the dangers associated with silica exposure. Not only are the dangers
37 associated with silica well known to those working in industrial settings, the dangers are well known to the general public. As noted, the risks inherent in working with silica have been known for hundreds of years, and common knowledge among employers in New York for over half a century. Sadowski v. Long Island R.R., 292 N.Y. 448, 456 (1944). The dangers are so well known that the New York Court of Appeals recognized, almost seventy years ago, 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.” Sadowski v. Long Island R. Co., 292 N.Y. 448, 456, 55 N.E.2d 497, 500 (1944).
In 1949, the United States Supreme Court also stated that the dangers of breathing silica dust were common knowledge. See Urie v. Tompkins, 337 U.S. 163, 190 (1949). As such, this Court can take judicial notice of the fact that the highest court of this state acknowledged the well- known danger of silica in 1944, and that the highest Court of this nation reiterated this finding in
1949.
It has long been the law in New York that there is no duty to warn about a danger that is not special or peculiar, but rather is common knowledge within an industry. Rosebrock v.
General Elec. Co., 236 N.Y. 227, 237-38 (1923). Knowledge of a product’s danger which is possessed by the original purchaser can protect the seller from liability to third persons harmed by the purchaser’s failure to warn, when the purchaser had the means and opportunity to warn.
McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 72 (1962). See also Steinbarth v. Otis
Elevator, 269 A.D.2d 751, 752 (4th Dept. 2000)(holding that defendant had “no duty to warn a knowledgeable user who is aware of the risks inherent in the product”); Littlehale v. E.I. DuPont
De Nemours & Co., 268 F. Supp. 791 (S.D.N.Y. 1966), aff’d, 380 F.2d 274 (2d Cir. 1967) (no duty to warn members of profession of generally known risks; when manufacturer owes no duty to purchaser who is aware of inherent dangers, there is no duty to employees of purchaser).
38
This doctrine is commonly known as the “sophisticated intermediary” defense. The basis
for the sophisticated intermediary defense is set forth by the Restatement 2d of Torts § 388,
comment n. The doctrine acknowledges the reality that requiring a product supplier to warn
every possible user of its product would result in a virtually impossible burden, especially in the
industrial context where purchaser/employers maintain and control the safety of their premises.
The responsibility for warning their employees is therefore on the purchasers of the product, who
are in the best position to warn third persons who use the product, such as the plaintiff in this
case. U.S. Silica is entitled to rely on its purchasers to give these warnings, for “[m]odern life
would be intolerable unless one were permitted to rely to a certain extent on others’ doing what
they normally do, particularly if it is their duty to do so.” Restatement § 388, comment n.
New York has recognized that the sophisticated intermediary defense applies if the chain
of distribution is such that the duty to warn ultimate users should fall on an intermediary in that
chain, rather than on the manufacturer. A number of courts have applied the sophisticated
intermediary doctrine, described in Restatement § 388, to relieve manufacturers of a duty to warn
employees of purchasers of the products in cases which are directly on point - where silica
suppliers were absolved of any duty to warn plaintiffs who were employees of silica purchasers
and alleged injuries from silicosis.
C. Restatement § 388 Has Been Widely Applied to Cases Involving the Sale of Crystalline Silica to Employers/Purchasers that are Sophisticated Intermediaries
A number of courts have applied the sophisticated intermediary doctrine and Restatement
§ 388 to relieve manufacturers of a duty to warn employees of purchasers of silica sand. These decisions absolved silica suppliers of any duty to warn plaintiffs who were employees of silica purchasers and alleged injuries from silicosis. In Goodbar v. Whitehead Bros., 591 F. Supp. 552
39
(W.D. Va. 1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985), the court granted the silica suppliers’ motion for summary judgment against plaintiffs, who were employees of a foundry. Drawing extensively upon Restatement § 388 to analyze the duty to warn, the court, in
Goodbar, addressed the sophisticated intermediary defense in depth, and held that the dangers of silica were known to the foundry. As a result, the silica supplier had no duty to warn the foundry’s employees. The court noted that under the circumstances no duties were required:
[i]f the danger related to the particular product is clearly known to the purchaser/employer, then there will be no obligation to warn placed upon the supplier. Instead, it becomes the employer's responsibility to guard against the known danger by either warning its employees or otherwise providing the necessary protection. Stated another way, 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.
Id. at 561. The court held that the foundry “clearly” had extensive knowledge of the dangers of inhaling silica dust, the disease of silicosis, and proper dust control methods, and was a knowledgeable employer. Id. at 561-62.
The Goodbar court also identified several relevant considerations for why the employer should be exclusively responsible for notifying its employees of the hazards rather than the silica supplier:
1) identification of users or those exposed to the supplier’s products would require constant monitoring by the supplier; 2) only the foundry could provide the appropriate training and warnings to systematically protect workers from silicosis; 3) the suppliers had to rely on the foundry to relay warnings; 4) there would be immense confusion if all the foundry’s suppliers had to instruct each foundry worker; and 5) it was unrealistic to expect that the foundry, a large industrial customer, would allow the suppliers to come in and educate its workers about silicosis.
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Id. at 566. Given these workplace realities, the court concluded that it was necessary to keep the responsibility for providing a safe workplace and giving warnings on the foundry because:
[t]he extension of workplace warnings liability unguided by practical consideration has the unreasonable potential to impose absolute liability in those situations where it is impossible for the manufacturer to warn the product user directly. In the workplace setting, the product manufacturer often cannot communicate the necessary safety information to product users in a manner that will result in reduction of risk. Only the employer is in a position to ensure workplace safety by training, supervision and use of proper safety equipment. Designating the manufacturer an absolute insurer of its product removes the economic incentives that encourage employers to protect the safety of their employees.
Id. at 566-67.
Importantly, the Goodbar case assumed arguendo, that no warnings were given by the suppliers or received by the plaintiffs, the employees of the sophisticated purchaser, whereas in these cases, Defendants provided MSDSs, warning communications on bags, invoices, and shipping documents; and with “Dear President” or “Dear Customer” letters, with which they transmitted important information such as notice of federal OSHA and NIOSH publications on silica issues. [R. at 869-983]
The sophisticated user defense was upheld by the U. S. Court of Appeals, in Smith v.
Walter C. Best, Inc., 927 F.2d 736 (3d Cir. 1990), a silica foundry case decided under Ohio law.
The court, in Smith, explained that “liability for failure to warn should fall upon the knowledgeable purchaser” as the party “having access to the end user.” Id. at 738 (affirming summary judgment for silica supplier, U.S. Silica, where purchaser knew dangers of silica given state of common medical knowledge, statutes and regulations; silica supplier justified in relying on purchaser to warn ultimate users). Since Smith, Retired Ohio Supreme Court Justice, Justice
Francis E. Sweeney, sitting by special assignment in Cuyahoga County Court of Common Pleas,
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Ohio, has routinely granted summary judgments upholding sophisticated intermediary defenses in both foundry and non-foundry places of employment. See, e.g., Conley v. Air Liquide
America Corp., Cuyahoga Cty. C.P. Case No. 516427 (July 15, 2008) (Sweeney, J.) (granting summary judgment to U.S. Silica); Woodard v. Air Liquide, Cuyahoga Cty. C.P. Pleas No. CV-
469127, Entry & Opinion No. 6405397 (Aug. 3, 2005) (Sweeney, J.) (granting summary judgment to silica suppliers); Pawlowski v. Air Liquide, Cuyahoga Cty. C.P. Case No. 499457
(Aug. 2, 2006) (Sweeney, J.) (granting summary judgment in sandblaster’s case); Huddleston v.
Air Liquide, Cuyahoga Cty. C.P. Case Nos. 506488 and 510330 (Oct. 30, 2007) (Sweeney, J.)
(granting summary judgment).
In Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003), the U. S. Court of Appeals, applying Iowa law, affirmed the district court’s grant of summary judgment to Unimin, holding that Unimin had no duty to warn either the foundry, to which it supplied products, or to a foundry worker, about the risks of silicosis due to silica exposure at levels below the maximum level of exposure recommended by OSHA. The court noted that Restatement § 388(b) embodied the sophisticated user doctrine, which imposed no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product. Id. at 353. The court found that the foundry possessed both generalized industry knowledge and knowledge of the specific dangers at the relevant exposure.
Id. at 354. The court held that the foundry’s choice not to adopt safeguards to reduce exposures was not evidence that the foundry was unaware of the standard. Id. At the trial court level, in
Bergfeld, the court had identified specific factors that evidenced the employer's sophistication:
1) the length of time that the employer had been aware of silicosis;
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2) whether employee medical screenings performed by the employer; 3) whether the employer conducted air monitoring for silica levels; 4) whether the employer had a respirator program; and 5) whether the employer had an industrial hygiene department with information on the hazards of exposure to silica dust
Bergfeld v. Unimin, 226 F.Supp.2d 970, 979 (N.D. Iowa 2002). On appeal, these factors were
held to be relevant and dispositive of exculpating the silica supplier. Bergfeld, 319 F.3d at 353.
These factors from Bergfeld are all supported in the facts of the present cases before this Court.
The facts of Bergfeld were mirrored in Haase v. Badger Mining Corp., 266 Wis. 2d 970
(Wis. Ct. App. 2003), aff'd, 274 Wis. 2d 143 (2004), which followed the holding and rationale of
Bergfeld. The appellate court affirmed the lower court’s dismissal of plaintiff’s claims against
the silica supplier on grounds that the plaintiff’s employer, Neenah, was a sophisticated user,
which was well aware of silica hazards. Neenah continuously updated the respirators it provided
to employees and medically monitored employees who had been exposed to silica, just as Dexter
did. Id. 266 Wis. 2d at 986. The court also noted that while Neenah chose not to require its
employees to wear “high-efficiency” respirators, this fact did not show that Neenah was unaware
of how to adequately protect its workers. Id. The court also rejected plaintiff’s argument that the supplier had voluntarily assumed duties to provide accurate safe-use instructions by providing MSDSs to the employer. Id. at 984.
The sophisticated user defense has been dispositive in silicosis cases arising in non- foundry cases involving other industrial uses of silica, such as abrasive blasting. In Damond v.
Avondale Industries, Inc., for example, the appellate court upheld summary judgment for a silica supplier on claims brought by a worker, who developed silicosis from sandblasting, an industrial operation that, if not done carefully, can be an extremely hazardous. 718 So. 2d 551 (La. App.
43
1998). In confronting the issue whether the silica supplier had a duty to warn the plaintiff, the
ultimate user, of the hazards of inhaling silica, the court focused on how the sand became
dangerous only when used in the operations supervised and conducted by the purchaser,
plaintiff’s employer. Id. at 552-53. Given the existence of OSHA silica regulations, which
governed the employer’s operations and provided detailed instructions and requirements for the
safe use of silica as an abrasive material, the court, in Damond, held that the employer was
presumed to know the dangers of using silica in abrasive blasting. Id. The court emphasized
that the silica supplier had no control over how the employer would use the material supplied,
and any hazard would arise only if the employer used the material in violation of the federal
regulations. Under these circumstances, the court held that the supplier had no duty to provide
the plaintiff employee with a warning. Id.
In Cowart v. Avondale Indus., Inc., the court addressed the sophisticated user defense in a foundry workplace, which was sophisticated about the potential hazards of silica use. 792 So. 2d
73 (La. Ct. App. 2001). In Cowart, Unimin had provided warnings to the purchaser-employer, both on invoices and on any bags of silica sand. Although these warnings were revised from time to time, the warnings advised that there was a health hazard associated with silica and that
OSHA safety guidelines should be followed. Ironically, the plaintiffs in Cowart attempted to distinguish Damond on grounds that OSHA regulations addressed sandblasting. The court in
Cowart rejected this argument on grounds that the regulations of silica were not specific to sandblasting and covered all industrial uses of silica in the workplace. Id. at 76. The holding in
Cowart continues to be applied to reject liability for silica suppliers to sand-blasting employers,
despite the serious risk of silicosis among unprotected sand blasters. See Bates v. E.D. Bullard
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Co., 76 So.3d 111 (La.App. 2011) (affirming grant of summary judgment to silica suppliers in action brought by sand blaster with silicosis).
In Pennsylvania, the intermediate appellate court held, as a matter of law, that silica sand sold to a foundry employer is not defective, even without any warning. Phillips v. A.P. Green
Refractories Co., 428 Pa. Super. 167, 630 A.2d 874 (1993), aff’d on other grounds, Phillips v.
ABest Products Co., 542 Pa. 124, 665 A.2d 1167 (1995). The Superior Court acknowledged that silica sand may be dangerous, citing to the “latent danger” posed by its long-term, unrestricted use. 428 Pa. Super. at 181, 630 A.2d at 881. Nonetheless, the silica sold without a warning was not defective because of the widespread knowledge of its hazards.
In rejecting the application of Pennsylvania's hyper-strict liability to the industrial use of sand, the Superior Court in Phillips also examined the policies that support strict liability – the promotion of safe products and distribution of risk - and found that under the facts of the case, those policies would not be served by application of Pennsylvania's version of strict liability.
(The jury in Phillips returned a verdict in favor of defendants on plaintiffs’ claim of negligent failure to warn, the equivalent of New York law’s product liability claim.) The court recognized that, as a practical matter, remote suppliers who sell sand in bulk to industrial customers, such as foundries, cannot directly warn the end-user/employees. Therefore, imposing liability on sand suppliers would not increase the safety of the product. The court noted that “the cost of PGS directly and effectively warning foundrymen about the silica hazard would be unrealistically high and impractical. Since the foundrymen did not receive the shipments of the sand, they would never receive PGS’s written warnings.” 428 Pa. Super. at 181, 630 A.2d at 881.
Moreover, the court also recognized the illogic of requiring sand suppliers to monitor and control the use of sand in an employment setting. The court further noted that “it would be prohibitively
45 expensive and unduly burdensome to require suppliers to orally warn each worker and continuously monitor them to make sure they were wearing their respirators.” Id. The court concluded that PGS “[could not] feasibly reduce the risk to end-users such as [plaintiffs] and the strict liability question never should have reached the jury.” 428 Pa. Super. at 181, 630 A.2d at
881-82.
The Pennsylvania Supreme Court affirmed the Phillips decision, 542 Pa. 124, 665 A.2d
1167 (1995), acknowledging that “the result reached by the Superior Court was correct.” 542 Pa. at 131, 665 A.2d at 1170. The Pennsylvania Supreme Court, however, chose to place its holding on the factual ground that the plaintiff was sufficiently aware of the hazards of silica sand such that any absence of a warning could not be a proximate cause of his having developed silicosis.
542 Pa. at 132, 665 A.2d at 1171.
One case running against the strong trend to apply Section 388 in silica cases is Gray v.
Badger Mining Corp., 676 N.W.2d 268 (Minn. 2004). The plaintiff in Gray claimed silicosis from silica exposure in a foundry. Discovery in Gray revealed that the sand supplier, Badger
Mining, had done its own research about the appropriate type of respirator to be used with sand in the foundry setting, and that the supplier had never shared this “secret” knowledge with the foundry customer. On these facts, the court in Gray case did not “reject” the sophisticated intermediary defense; rather, it acknowledge the viability of the defense but declined to apply it to a factual setting in which the supplier had superior knowledge to the customer-employer.
Gray, 676 N.W.2d at 277-278, 279 (“on this record, we need not decide the full applicability or scope of the sophisticated intermediary defense”). Although Gray reversed summary judgment, contrary to the outcomes of Goodbar, Smith, Damond, Cowart, Bergfeld, Haase, and Phillips, its holding has no bearing upon these cases. Specifically, the limited holding of Gray does not
46
assist plaintiffs in these cases, in which there is no evidence of “hidden” or “unequal” knowledge
of silica hazards or remedial methods.
D. Non-Silica Cases
1. Non-Silica, Non-Asbestos Cases
The sophisticated user defense has been applied in a wide variety of industrial and
occupational exposure cases. In addition to sales of crystalline silica, the defense has been
invoked and upheld in cases involving exposure to:
Acetone, Etc.: Hoffman v. Houghton Chemical Corp., 434 Mass. 624, 751 N.E.2d 848 (2001) (recognizing bulk seller defense for vendor of flammable chemicals, acetone, toluene, and methanol, delivered in 55-gallon drums and in tanker trucks).
Beryllium: Parker v. Schmiede Machine & Tool Corp., 445 Fed. Appx. 231 (11th Cir. 2011) (affirming dismissal under Georgia law); Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704 (E.D. Tenn. 2001) (no duty to warn); Byrd v. Brush Wellman, Inc., 753 F. Supp. 1403 (E.D. Tenn. 1990)(no duty to warn; alternative holding). But see Genereux v. American Beryllia Corp., 577 F.3d 350 (1st Cir. 2009) (reversing grant of summary judgment).
Cadmium in Welding Rods: Davis v. Avondale Indus., 975 F.2d 169, 174 (5th Cir. 1992) (Louisiana law) (defense upheld for lung disease caused by cadmium in welding rods).
Chromated Copper Arsenate (CCA): Coffey v. Chemical Specialties, Inc., 4 F.3d 984, 1993 WL 318886 (4th Cir. 1993) (unpublished decision) (affirming dismissal of case under South Carolina law, for injuries from exposure to chromated copper arsenate).
Cobalt - Tungsten: Jodway v. Kennametal, Inc., 207 Mich. App. 622, 525 N.W.2d 883 (Mich. Ct. App. 1994) (in hard-metal lung disease case, affirming grant of summary judgment to defendants who supplied cobalt to plaintiff’s employer on the grounds that plaintiff’s employer was a sophisticated user of cobalt); Kudzia v. Carboloy Division, General Electric Co., 190 Mich. App. 285, 475 N.W.2d 371 (1991) (same), aff'd, 439 Mich. 923, 479 N.W.2d 679 (1992); Tasca v. GTE Products Corp., 175 Mich. App. 617, 438 N.W.2d 625 (Mich. Ct. of App. 1989) (same).
Isocyanate: Kennedy v. Mobay Corp., 84 Md. App. 397 (1990)(applying sophisticated user defense to bar claims against manufacturers of toluene diisocyanate), aff’d, 325 Md. 385 (1992); Adams v. Union Carbide Corp., 737 F.2d 1453, 1455 (6th Cir.) (reasonable to rely upon manufacturer-purchaser-employer), cert. denied, 469 U.S. 1062 (1984).
47
Lead Fumes: O'Neal v. Celanese Corp., 10 F.3d 249, 254 (4th Cir. 1993) (affirming j.n.o.v. for defendant).
Naphtha: Whitehead v. The Dycho Co., 775 S.W.2d 593, 597-98 (Tenn. 1989) (holding Section 388 applicable to naphtha).
Natural Gas: Parkinson v. The California Co., 255 F.2d 265 (10th Cir. 1958)(affirming dismissal of case under Wyoming law); Strong v. E.I. Du Pont de Nemours Co., Inc., 667 F.2d 682, 687 (8th Cir. 1981) (holding that natural gas pipe manufacturer had no duty to warn utility's employees of well-known gas line dangers).
Oxy-acetylene Welding System: Dusoe v. Union Carbide Corp., 19 Mass.L.Rptr. 109, 2005 WL 705960, at *6, 2005 Mass. Super. LEXIS 75 (Sup. Ct. Mass. Jan. 20, 2005) (granting summary judgment to manufacturer of an oxygen regulator involved in an explosion of a welding system).
Polychlorinated Biphenyls (PCBs): Taylor v. Monsanto Co., 150 F.3d 806 (7th Cir. 1998); Fisher v. Monsanto Co., 863 F.Supp. 285 (W.D. Va. 1994) (granting summary judgment in case involving polychlorinated biphenyls).
Polytetrafluoroethylene: Wilson v. Glenro, Inc., 2012 WL 1005007, 2012 U.S. Dist. LEXIS 40068 (D. Vt. Mar. 23, 2012) (granting summary judgment), aff’d, 2013 WL 1876598 (2d Cir. May 7, 2013).
Polyvinyl Butyrl: Newson v. Monsanto Corp., 869 F. Supp. 1255 (E.D. Mich. 1994) (granting summary judgment).
Polyvinyl Chloride: Roney v. Gencorp, 654 F. Supp. 2d 501 (S.D.W.Va. 2009) (predicting that West Virginia would adopt the defense under the facts of the case).
2. Asbestos Cases
One particular area of products liability law that has limited the sophisticated
intermediary defense is litigation over asbestos personal injuries. Asbestos cases, however,
involve overwhelming factual and legal differences from silica and other hazardous material
cases. The singular facts of some of the asbestos cases include an extreme imbalance between
supplier and purchaser in their respective knowledge of asbestos hazards. The facts of silica
cases are radically different because of the wide diffusion and general equality of knowledge of
48 silica hazards throughout industry, labor, and government, as demonstrated in the record before this Court.
The courts in several states have been impressed by the substantial imbalance in knowledge of asbestos hazards between some asbestos suppliers and purchasers, and because asbestos in some forms has a potential to cause fatal disease, even from fleeting or nominal exposures, both in the workplace and environmentally. Asbestos cases thus differ significantly and dramatically from silica cases. Crystalline silica dust is ubiquitous, and it does not involve grave hazards to workers transiently exposed; nor does silica pose the serious household and environmental contamination issues created by some forms of asbestos. Workers do not develop simple silicosis, of the sort claimed by plaintiffs, unless exposed to crystalline silica in excess of permissible limits for many years.
Furthermore, silica supplied in the United States, since the 1930s, has not involved the extreme imbalance in knowledge about potential hazards, which has existed with respect to some asbestos companies. Clearly, some courts have been impressed by the revelations that some companies, such as Johns-Manville Corporation, which mined asbestos and produced asbestos containing products, had secret knowledge of asbestos dangers, which they affirmatively hid from government, labor, customers, and ultimate users. Nothing of the sort has happened in the silica industry, as evidenced by the extensive collaboration among industry, labor, government, and academia to address and control silica hazards, from the 1930s, forward. Willis v. Raymark
Indus., Inc., 905 F.2d 793 (4th Cir. 1990) (upholding disallowance of defense to Celotex
Corporation). Compare Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir. 1985) (applying
Virginia law, which embraces § 388, but upholding trial court’s refusal to apply the doctrine in this asbestos case because the employer was unaware of the hazards of asbestos during the
49
plaintiffs’ employment before 1964), cert. denied sub nom. Oman v. H.K. Porter, 474 U.S. 970
(1985), with Beale v. Hardy, 469 F.2d 213 (4th Cir. 1985), aff’g Goodbar v. Whitehead Bros.,
591 F. Supp. 552 (W.D.Va. 1984) (granting summary judgment and holding that the doctrine
was a complete, dispositive defense in silicosis cases, even in the absence of any warning from
silica suppliers).
In In re Joint Eastern and Southern District Asbestos Litigation, 827 F. Supp. 1014
(S.D.N.Y. 1993), defendants moved to dismiss asbestos personal-injury claims under the
sophisticated intermediary doctrine. In its analysis, citing New York and general case law
support, the trial court acknowledged the general availability of the doctrine, noting that:
In certain circumstances, if the chain of distribution is such that the duty to warn ultimate users logically falls upon an intermediary in the chain, instead of the manufacturer, the “sophisticated intermediary” doctrine may completely protect a manufacturer from liability under a theory of negligence.
827 F. Supp. at 1055 (citing New York cases, Goodbar, and Restatement § 388). The court
stopped short, however, of recognizing the defense as dispositive in asbestos cases because, “the
latent quality of the defect in asbestos products makes the issue of sophisticated intermediary and
intervening negligence questions of fact for the jury to decide.” Id. at 1055 (citations omitted).
The difference in approach in asbestos cases can be seen in a federal diversity case, applying
Michigan law. In Russo v. v. Abex Corp., 670 F. Supp. 206 (E.D.Mich. 1987), the court noted that it would not apply the sophisticated intermediary defense in an asbestos injury case because
“asbestos-containing product manufacturers have an absolute duty to warn because of the unique
and patent dangers of asbestos.” Id. at 208 (citations omitted). The state courts of Michigan,
however, have taken an expansive view of the sophisticated user defense in litigation over fatal
hard-metal lung disease, in which cases, summary judgments for the supplier have been
50
consistently upheld. Jodway v. Kennametal, Inc., 207 Mich. App. 622, 525 N.W.2d 883 (Mich.
Ct. App. 1994); Kudzia v. Carboloy Division, General Electric Co., 190 Mich. App. 285, 475
N.W.2d 371 (1991) (same), aff'd, 439 Mich. 923, 479 N.W.2d 679 (1992); Tasca v. GTE
Products Corp., 175 Mich. App. 617, 438 N.W.2d 625 (Mich. Ct. of App. 1989) (same).
In asbestos cases involving later exposures, typically post-enactment of the Occupational
Health & Safety Act, courts have upheld the applicability of the sophisticated intermediary
defense. In Triplett v. Minnesota Mining and Mfg. Co., 422 F. Supp. 2d 779 (W.D. Ky. 2006), the court, applying Indiana law, granted summary judgment to a respirator manufacturer, on basis of sophisticated intermediary, in a post-OSHA asbestos exposure lung cancer case.
Similarly, in Bean v. Asbestos Corporation, Ltd., 1998 WL 972122 (Va. Cir. Ct. 1998), the
Virginia trial court, notwithstanding the Willis and Oman cases, supra, upheld the defense for
asbestos sales after 1970. The courts in Triplett and Bean emphasized the equality of knowledge
of asbestos hazards, which distinguished these cases from earlier asbestos cases involving
companies such as Raybestos Industries, Johns-Manville, or Celotex, which had been found to
suppress or hide information from purchasers and workers. See also Gottschall v. General
Electric Co., 2011 U.S. Dist. LEXIS 151563 (E.D.Pa. Dec. 8, 2011) (MDL 875) (granting
summary judgment under California law based upon the U.S. Navy's equal knowledge of
asbestos hazards compared with that of moving defendant).
E. New York’s Learned Intermediary Defense Provides Guidance on the Role of the Intermediary’s Knowledge and Judgment in Modifying the Duty to Warn When the Ultimate User Must Be Supervised By Professional Intermediaries with Their Own Independent Duties
Defendants are not asserting a “learned intermediary” defense, which is a similar defense,
applied in cases involving prescription drug and drug devices, which are sold to consumers, but
51 for which sellers provide warnings to intermediary physicians and not consumers. The basis for this learned intermediary doctrine is that ultimate users can obtain and use prescription drugs only upon consultation with, and under supervision of, licensed physicians. In this legally mandated method of drug sales, the physician’s “function is to evaluate a patient's needs, assess the risks and benefits of available drugs and then prescribe a drug, advising the patient of its risks and possible side effects.” Wolfburger v. Upjohn, 72 A.D.2d 59, 61 (4th Dept. 1979), aff’d mem., 52 N.Y.2d 768 (1980). “Thus, the manufacturer’s duty to caution against a drug’s side effects is fulfilled by giving adequate warning through the prescribing physician, not directly to the patient.” Martin v. Hacker, 83 N.Y.2d 1, 9 (1993).
Although the learned intermediary defense is distinct from the sophisticated intermediary defense, there are similarities that are instructive in showing how common law courts have interpreted the law of negligence in the light of special circumstances of the intermediaries’ independent, professional knowledge and duties. Both defenses, for instance, involve a third- party intermediary with an independent duty of ordinary care to the plaintiff. Both defenses require the intermediary to determine the appropriate use of the product, to instruct in the proper use and precautions, and to supervise the ultimate user actively for overexposures or untoward effects. Both defenses recognize that the intermediary is in a better position to communicate risks to the ultimate user.
The application of the sophisticated intermediary defense to these cases is amply supported by many of the considerations that are shared by the learned intermediary defense.
During the time of Plaintiffs’ work place exposures, this state’s common law, statutes, and regulations, as well as federal statutes and regulations, imposed a duty on Dexter to provide a safe work place. Specifically, New York employers were required to have the appropriate
52
technical understanding and knowledge to use silica safely in their workplaces, if the silica was
to be used in a way that might give rise to potential overexposures. In 1970, at or before the
Plaintiffs began their work at Dexter, the federal government enacted comprehensive obligations for employers, including Dexter, to provide safe workplaces and to communicate safety information. At no time did either Plaintiff work with silica in industrial settings, when there were not common-law, state and federal statutory, and state and federal regulatory obligations to provide a safe workplace, generally and specifically with respect to potential silica hazards.
The application of the sophisticated intermediary defense is also supported in these cases by recognition that the intermediary is far better positioned to communicate with its employees and determine that the employees actually understand the risks communicated. Like the learned intermediary, the sophisticated intermediary-employer has an independent duty to supervise and assure compliance with mandated work rules and warnings. Only the intermediary-employer is in a position actively to monitor for workers’ compliance, and to supervise and discipline workers when workplace rules or ignored or violated.
F. New York Acknowledges that Bulk Suppliers Have No Duty to Warn End Users Because of the Suppliers’ Inability to Affix Warnings to Bulk Materials, As Well As the Overlapping Rationales of the Sophisticated Intermediary Defense
1. The Bulk Supplier Defense
The bulk supplier doctrine focuses on situations in which suppliers have shipped
unpackaged materials in large containers, such as trucks or rail cars, with no feasible means of
attaching warnings to packaging. There are, however, other aspects to the bulk supplier cases
other than feasibility. Materials sold in bulk are often used in a wide variety of manufacturing
processes, in different ways, and suppliers cannot know the details of purchasers’ intended uses,
53 and the types and degrees of hazards, which variously arise according to the plans, actions, or inactions, of buyers. Bulk suppliers are thus typically not in a position to anticipate and predict the risks from the use of products or materials in their customers’ manufacturing processes.
Furthermore the knowledge of potential hazards of the materials sold in bulk is not unknown to the buyer, and thus not “latent.” Like the sophisticated intermediary cases, the bulk sale cases also involve the difficulty of enforcing safety compliance, and of controlling the consistency of warning messages when purchasers buy materials in bulk from competing suppliers. Materials sold in bulk are usually intended for use by professionals, or involve professional judgment in the selection, use, and supervision of the materials. This feature of bulk sales is also shared with decisions that are based upon on the sophisticated intermediary defense. As a result, the rationales, holdings, and operations of the bulk sale and the sophisticated intermediary defenses broadly overlap. Restatement (Third) of Torts: Products Liability § 5, comment c (1998);
Restatement (Second) of Torts § 388, comment n (1965).
The importance of the bulk sale cases to these cases is their demonstration, by analogy, of the evolution of common law decisions that modify and qualify the negligence-based duty to warn in connection with products or raw materials. See, e.g., Purvis v. PPG Indus., 502 So. 2d
714 (Ala. 1987) (holding bulk supplier of perchlorethylene had no duty to warn); Walker v.
Stauffer Chem. Corp., 96 Cal. Rptr. 803 (Cal. Ct. App. 1971) (supplier of bulk sulfuric acid not liable when it had no control over the subsequent mixing and packaging of the acid); Exxon
Corp. v. Jones, 433 S.E.2d 350 (Ga. Ct. App. 1993) (bulk supplier of gas had no duty to warn ultimate consumer); Manning v. Ashland Oil Co., 721 F.2d 192, 196 (7th Cir. 1983) (Illinois law; holding that bulk supplier of lacquer thinner did not owe a duty to inspect labeling of middleman); Taylor v. Monsanto Co., 150 F.3d 806, 809 (7th Cir. 1998) (Indiana law; affirming
54 summary judgment to bulk chemical supplier); Stoffel v. Thermogas Co., 998 F.Supp. 1021,
1026 – 27 (N.D. Iowa 1997) (Iowa law; granting summary judgment to propane supplier); Jones v. Hittle Serv., Inc., 549 P.2d 1383 (Kan. 1976) (adopting bulk supplier doctrine; “warning is required to impart knowledge, and if that knowledge has already been acquired, it is not necessary…”); Higgins v. E.I. DuPont de Nemours, Inc., 671 F. Supp. 1055 (D. Md. 1987)
(Maryland law; holding that manufacturer of paint was in better position than bulk supplier to communicate warnings to customers’ employees), aff’d, 863 F.2d 1162 (4th Cir. 1988); Hoffman v. Houghton Chem. Corp., 751 N.E.2d 848, 856-57 (Mass. 2001) (discussing general shipping practices of bulk suppliers, and affirming summary judgment for bulk suppliers of chemicals used in production of ink); Little v. Liquid Air Corp., 952 F. 2d 841 (5th Cir. 1992) (Mississippi law; reasonable reliance upon intermediary discharges duty); Adams v. Union Carbide Corp.,
737 F.2d 1453, 1457 (6th Cir.) (Ohio law; manufacturer of toxic chemical that causes asthma could rely upon purchaser-employer to warn employees), cert. denied, 469 U.S. 1062 (1984);
Ditto v. Monsanto Co., 867 F. Supp. 585 (N.D. Ohio 1993)(Ohio law; bulk supplier had no duty to warn ultimate users about chemicals); Coffey v. Chemical Specialties, Inc., 1993 U.S. App.
LEXIS 21430 (4th Cir. 1993) (South Carolina law; holding that bulk supplier defense results in chemical supplier’s having no duty to warn); Fisher v. Monsanto Corp., 863 F. Supp. 285, 290
(W.D.Va. 1994) (Virginia law; holding bulk supplier of polychlorinated biphenyls not liable for failure to warn). The continued vitality of both defenses, along with the learned intermediary defense in the context of pharmaceutical products, shows that control of these doctrines has been, and remains, firmly in the hands of common law courts, engaged in stating what the law is.
In these cases, the raw material at issue was silica, which is used in the manufacture of a wide assortment of finished products, such as glass, fiberglass, ceramics, paints, and in various
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industrial processes, such as metal foundries, sandblasting, water filtration, and water filtration.
The silica material is not harmful as sold but becomes harmful only when the purchaser’s
manufacturing or handling processes result in the creation of excessive airborne silica dust for
lengthy periods of time, to workers not properly protected. Although shipped to Dexter in bags,
any potential hazard would arise only if the purchaser’s manufacturing process permitted silica
dust to become sufficiently airborne to exceed permissible exposure levels, and if the purchaser
allowed its employees to have prolonged exposure to such conditions. The manufacturing
process was designed and implemented by the purchaser, which was, in fact, aware from the
1950s of the potential hazards of silica exposure. Only the purchaser, or its insurance
contractors, such as Liberty and Wausau, were able actually to measure dust in real time from
Dexter’s manufacturing processes, to assess whether conditions of overexposure existed. Only
the purchaser, or its contractors, would know where a hazard existed in the Olean facility, and in
temporal and spatial relation to which production processes. Indeed, Mr. Crowley’s claimed
exposure, in the early 1970s, to “dust,” allegedly containing silica, from the pre-blend area,
across the hall from his own work station, illustrates how the realities of raw material and
chemical supply to Dexter, for use in the pre-blend area, were quite similar to sales of bulk materials in the reported bulk sale defense cases. Mr. Crowley never personally handled a bag or drum of silica material until he started to work in the pre-blend area, around 1976. Of course,
even if they had seen a “container” of silica material, Plaintiffs were entirely dependent upon
their employer, the purchaser of the raw materials, to conduct the appropriate air monitoring to
assess exposure levels, to implement the appropriate ventilation engineering controls if exposures
were excessive, and to provide the appropriate personal respiratory protection if engineering
controls were not sufficient to reduce exposure levels to within permissible levels.
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2. N. Y. Acknowledges the Limits of Bulk Suppliers’ Duty To Warn End Users
Under New York law, if a product is sold in bulk, adequate warning to the manufacturer’s immediate customer is all that can be reasonably required. Rivers v. AT&T
Technologies, Inc., 147 Misc. 2d 366, 369 (Sup. Ct. N.Y. County 1990). The bulk supplier
doctrine is premised upon the theory that the immediate distributee is in a better position to warn
the ultimate consumer of dangers associated with the finished product and, further, that to require
the bulk manufacturer to issue warnings through the entire chain of distribution would be too
onerous a burden. Polimeni v. Minolta Corp., 227 A.D.2d 64, 66 (3d Dept. 1997).
In Rivers, the court upheld the bulk supplier defense, and found that the supplier had no
duty to warn the plaintiff. The supplier in Rivers was DuPont, which sold the toxic chemical
DMF. Plaintiff was killed by DMF that was used in a capacitor in a dataphone in plaintiff’s workplace. While the injured plaintiff in bulk supplier cases is often an end user consumer, in
Rivers, as here, the plaintiff was an employee of a purchaser of the product. The court noted that a number of jurisdictions had applied the bulk supplier doctrine where the supplier had distributed a product to intermediaries, with appropriate warnings, and had no contact with the individual ultimately injured by the product, and that “[s]ummary judgment has been denied to bulk manufacturers only when there has been a complete failure to warn.” Id. at 404.
Although a warning’s adequacy is often an issue of fact, the court in Rivers found that
DuPont’s warning labels on the drums of DMF, and their MSDSs, were adequate as a matter of law and granted summary judgment to DuPont. Id. at 371. DuPont also included language in its standard sales invoice that the purchaser agreed to become familiar with and followed recommendations given in the product labeling and provided information. Id. The court noted:
Moreover, each party in the chain of distribution was a sophisticated user of DMF, and as a responsible intermediary, was
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aware of the toxicological characteristics of DMF and the necessary precautions to be taken when handling the product.
Rivers, 147 Misc. 2d at 371. The court found that the distributors’ sophistication was supported by (1) the distributors’ long time use of DMF, (2) the distributors’ providing plaintiff’s employer warnings of DMF dangers in the form of MSDSs, and (3) the distributors’ producing their own
MSDS specifically warning against the dangers of DMF. Id. at 372.
The facts of the instant cases are similar to the facts of Rivers. Defendants have provided almost identical warnings on MSDSs to their purchasers from 1971 forward, and a few years later, provided safety warnings on each bag of silica. Unimin and U.S. Silica, starting in the
1970s, each provided OSHA or NIOSH bulletins and monographs to customers, and they began to imprint sales documents with warnings as well. The purchaser, Dexter, prepared its own
MSDSs, which included the hazards of product ingredients, when appropriate. What is starkly different, however, from Rivers, is that that case involved DMF, a highly toxic industrial solvent that killed the plaintiff with an isolated exposure, whereas crystalline silica is a naturally occurring substance that is harmless unless manufacturing or handling processes permit dust to accumulate in excess of permissible exposure limits, for extended periods of time. Given the warnings that were adequate as a matter of law in Rivers, the nearly identical warnings, provided by Defendants for a material that is not inherently dangerous, not acutely hazardous, and commonly known for over 50 years to cause lung disease from prolonged excessive exposure, are adequate to eliminate or satisfy any duty that Unimin and U.S. Silica might have as suppliers.
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G. As a Matter of Law, There Is No Proximate Cause Between Any Breach of Duty and Plaintiffs’ Alleged Harm
In product liability cases involving allegations of the absence or inadequacy of warning, a plaintiff must establish “that the failure to warn was a proximate cause of the injury, i.e., ‘a substantial cause of the events which produced the injury’.” Belling v. Haugh’s Pools, Ltd., 126
A.D.2d 958, 959 (4th Dept. 1987) (quoting Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315
(1980)). It is well settled that “although proximate cause is usually a question of fact for the jury, where only one conclusion may be drawn from established facts, ‘the question of legal cause may be decided as a matter of law’.” Id. This principle applies with equal force to product liability cases. See, e.g., Kotarski v. Leo Kotecki & Sons, Inc., 239 A.D.2d 909 (4th Dept. 1997)
(affirming award of summary judgment to defendant manufacturer which established that the alleged failure to warn was not a proximate cause of plaintiffs’ injuries).
“[T]here is no liability for failing to warn of obvious dangers, those that would be appreciated by the user the same extent the warning would have provided. Belling, 126 A.D.2d at 959 (internal citations omitted). For example, in Butler v. Interlake Corp., the plaintiff, employed by Wegmans Food Markets, was injured when a thousand pounds of cereal boxes fell from racks, which were manufactured by defendant. 244 A.D.2d 913 (4th Dept. 1997). In dismissing plaintiff’s claims for failure to warn, this Court noted that “there is no duty to warn a customer already aware – through common knowledge or learning - of a specific hazard.” Id. at
914 (citations omitted). Thus, the Court concluded that any failure to warn was not a proximate cause of the accident.
In New York, “[u]nder well settled law, to prove proximate cause, a plaintiff has the obligation to adduce proof that had a warning been provided, she would have read the warning
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and heeded it.” Mulhall v. Hannafin, 841 45 A.D.3d 55, N.Y.S.2d 282, 287 (1st Dep't 2007). See also Sosna v. American Home Products, 298 A.D.2d 158, 748 N.Y.S.2d 548, 549 (1st Dep't
2002) (“in this State, it remains plaintiff’s burden to prove that defendant’s failure to warn was a
proximate cause of his injury, and this burden includes adducing proof that the user of a product
would have read and heeded a warning had one been given”); Banks v. Makita, U.S.A., 226
A.D.2d 659, 660, 641 N.Y.S.2d 875 (2d Dep't), leave denied 89 N.Y.2d 805, 653 N.Y.S.2d 918,
676 N.E.2d 500 (1996); Topliff v. Wal-Mart Stores East LP, 2007 WL 911891, at *43 (N.D.N.Y.
March 22, 2007) (no heeding presumption in New York) Smallwood v. Clairol, Inc., 2005 WL
425491, at *2 (S.D.N.Y. Feb. 18, 2005) (“plaintiff has the burden to establish that he would have read and heeded a different warning had one been given”) (internal citation omitted).
In the cases before this Court, Dexter was clearly knowledgeable about the potential dangers of silica. Furthermore, there is simply no evidence that Dexter would have conducted its affairs any differently, at any time relevant to these cases, if the Defendants had somehow managed to warn more intensively than they already did. Given Dexter’s independent knowledge and corporate resources, its dominion and control over its workplaces, as well as its reliance upon the sophistication of its insurance carriers, there is no showing that any increased level of warning would have changed Dexter’s workplace, at any time relevant to these cases.
Furthermore, the evidence that Plaintiffs themselves were aware of a respirator policy and the ventilation equipment from their earliest work days at Dexter shows that the potential hazards were neither latent nor hidden to them. Although the workers’ resistance to wearing respirators may be understandable, that resistance undermines their claims that they sustained harms because of inadequate warning communications to them. The Plaintiffs could not themselves
(any more than could the Defendants), know whether they needed to take any precautions,
60 without the assistance of Dexter’s technical personnel. There is no support for the claim that
Plaintiffs sustained any harm as a proximate cause of allegedly inadequate warnings. There is no evidence that additional warnings from the Defendants would have caused Dexter to alter its practices.
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CONCLUSION
For all of the foregoing reasons it is respectfully submitted that this Court should enter and order pursuant to CPLR Rule 3212, dismissing the Complaints in both the Rickicki and
Crowley actions, together with all cross-claims asserted against Unimin Corporation, Unimin
Specialty Minerals, Inc. Meyers Chemicals and U.S. Silica, together with such other and further relief as the Court deems just and proper.
DATED: April 30, 2014
BOND, SCHOENECK & KING, PLLC
By: ______Scott M. Philbin, Esq. Attorneys for Defendants, Unimin Corporation, Unimin Specialty Minerals, Inc. and Meyers Chemicals Key Center, 40 Fountain Plaza, Suite 600 Buffalo, New York 14202 716-566-2800
NATHAN A. SCHACHTMAN, ESQ., P.C.
By: ______Nathan A. Schachtman, Esq. Attorneys for Defendant, U.S. Silica Company 325 East 79th Street, No. 16-D New York, New York 10075 212-600-4912
SMITH, MURPHY & SCHOEPPERLE, LLP
By: ______Lynn D. Gates, Esq. Attorneys for Defendant, U.S. Silica Company 786 Ellicott Square Building Buffalo, New York 14203 716-852-1544
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