Morgan v. Brush Wellman, Inc.

• Decision Date: 04 September 2001
• Docket Number: No. 3:94CV369.,3:94CV369.
• Citation: 165 F.Supp.2d 704
• Parties: Troy Murphy MORGAN, et ux., Plaintiffs v. BRUSH WELLMAN, INC., et al., Defendants
• Court: U.S. District Court — Eastern District of Tennessee

165 F.Supp.2d 704

Troy Murphy MORGAN, et ux., Plaintiffs v. BRUSH WELLMAN, INC., et al., Defendants

No. 3:94CV369.

United States District Court, E.D. Tennessee, at Knoxville.

September 4, 2001.

COPYRIGHT MATERIAL OMITTED

Steve Jenson, Baron & Budd, Dallas, TX, Ann Rowland, Rowland and Rowland, Knoxville, TN, for plaintiffs.

James Johnson, Diane Pulley, Jones, Day, Reavis & Pogue, Atlanta, GA, Kyle Carpenter, Woolf, McClane, Bright, Allen & Carpenter, Knoxville, TN, for defendants.

MEMORANDUM OPINION

JARVIS, District Judge.

This products liability action was originally brought against the United States and multiple manufacturers/distributors of beryllium, beryllium oxide, and beryllium-containing products by four employees or former employees of government contractors at the Y-12 and K-25 nuclear armament factories in Oak Ridge, Tennessee. Plaintiffs claim that they contracted chronic beryllium disease (CBD) from exposure to beryllium dust or fumes while working on beryllium-containing parts of nuclear weapons between 1958 and the early 1990s. It was in the early 1990s that advances in medical science allowed the discovery that plaintiffs had acquired a dangerous sensitivity to beryllium and they were removed from jobs where they came into contact with beryllium. Summary judgment was previously entered in favor of the United States and a number of other defendants have been dismissed. There currently remain four defendants who supplied either beryllium oxide, metal beryllium blanks which were machined at Y-12, or finished ceramic parts containing beryllium for use at Y-12. All of the remaining defendants have moved for summary judgment on multiple grounds. For the reasons that follow, those motions will be granted and this action dismissed.

I. Factual Background

The following factual allegations are considered in the light most favorable to the plaintiffs.

A. The Plaintiffs

Plaintiff Troy Murphy Morgan began work at the K-25 Plant in 1952 for the Union Carbide Corporation. Approximately seven months later, he transferred to the Y-12 Plant as a machinist trainee. Between 1953 and 1963 he worked at various locations at Y-12 as a machinist, but not with beryllium. From 1963 until he retired in 1987, Mr. Morgan worked as a machinist with beryllium in the "Beryllium Shop" at Y-12. At the time that he was engaged in machining beryllium metal parts, Mr. Morgan had no idea who manufactured the parts. In 1985, Mr. Morgan underwent a physical examination which showed him to have breathing difficulties which would later be attributed to exposure to beryllium. Mr. Morgan was also exposed to beryllium oxide while at Y-12. In either 1992 or 1993, Mr. Morgan tested positive for beryllium sensitivity and was removed from any further exposure to beryllium.

Plaintiff Corky Dean McCarter began working for Union Carbide at the Y-12 Plant as a machine specialist. He worked in that job for six years until he was promoted to a machinist. He was laid off as a machinist in 1990, but recalled in October 1990 as a pipe fitter apprentice, and in 1992 promoted to the job of pipe fitter. While engaged in this work, Mr. McCarter would grind parts made of beryllium oxide. Mr. McCarter claims that until 1987 no one at Y-12 mentioned the dangers of beryllium to him. In 1987, Mr. McCarter was exposed to a "beryllium event" when he observed a beryllium mist coming out of a machine upon which he had been working. In 1993, Mr. McCarter tested positive for beryllium sensitivity. In 1994, Mr. McCarter was diagnosed with CBD. Mr. McCarter was removed from any possible exposure to beryllium after he tested positive for beryllium sensitivity.

Plaintiff Richard Emory Myers, Sr., began to work for Union Carbide at Y-12 in 1960 as a machine cleaner in the Beryllium Shop. Between 1963 and 1969, he worked in a shop where no beryllium was located. In 1969, he went to work in an assembly division to disassemble weapons parts, which contained beryllium. Between 1971 and 1972, Mr. Myers engaged in the assembly of nuclear weapons which contained beryllium parts. In 1993, Mr. Myers also tested positive for beryllium sensitivity, and in 1994 he retired. Mr. Myers contends that he never received any warnings concerning the dangers of beryllium until 1988.

Plaintiff Kathlene Beatty was hired by Y-12 in 1979. She began assembling products that had beryllium parts. However, she claims that she was given no safety instructions regarding sanding beryllium parts. Between 1983 and 1987, she sanded beryllium parts. Between 1987 and 1993, she washed ceramic parts containing beryllium, using glove boxes or a hood, but never a respirator. On May 27, 1993, plaintiff Beatty was restricted from further work with beryllium based upon a positive test for beryllium sensitivity. She has not worked with beryllium since.

B. The Defendants

1. Defendant Brush Wellman, Inc., is the only remaining Western world supplier of beryllium oxide. Brush Wellman has mined and refined beryllium oxide at least since the 1930s. It also created beryllium metals at its manufacturing plant in Lorain, Ohio, until that plant burned in 1948. Since the 1930s, when workers in fluorescent light bulb factories became seriously ill, it has been suspected that airborne beryllium particles are extremely toxic to some humans. As early as 1943, workers in Brush Wellman's Lorain plant were dying and showing signs of CBD. About the same time, the United States War Department began purchasing beryllium oxide and beryllium metals from Brush Wellman and its competitor, The Beryllium Company, in large quantities.

After the Lorain, Ohio, plant burned in 1948, the Atomic Energy Commission (AEC) recognized the defense industry's need for a continuing source of beryllium products. It therefore built a new plant in Luckey, Ohio, which Brush Wellman operated. Brush Wellman operated that plant for the AEC until 1959, when Brush Wellman purchased the plant from the government. Brush Wellman continues today to manufacture beryllium oxide and beryllium metals, primarily for use by the Department of Energy (DOE) at its plants similar to the Y-12 and K-25 facilities. At times in the past, Brush Wellman produced beryllium metal "blanks" which were later machined into parts for nuclear weapons by workers at the Y-12 and K-25 Plants.

2. Defendant Cabot Corporation is a Pennsylvania corporation that is the successor to Cabot Berylco, Inc., Kawecki Berylco Industries, Inc., The Beryllium Company, Kawecki Chemical Company, and Berylco, Inc. Its liability in this case is premised on the proposition that it is a successor in interest of The Beryllium Company, which at one time manufactured beryllium oxide and beryllium products in competition with Brush Wellman. At one time, Brush Wellman and The Beryllium Company together lobbied the Occupational Safety and Health Administration (OSHA) and other government agencies against more stringent agency standards for monitoring beryllium exposure.

3. NGK Metal Corporation is another Pennsylvania corporation that is also a successor of Cabot Corporation and ultimately The Beryllium Company. Its alleged liability is similar to that of Cabot.

4. Ceradyne, Inc., is a California corporation that primarily in the 1970s and 1980s manufactured ceramic parts containing beryllium for the Y-12 Plant to use in the construction of nuclear weapons. Ceradyne was approached by the Department of Energy in 1973 to produce beryllium oxide ceramic spheres. Ceradyne was instructed precisely by DOE and Y-12 how the parts were to be made, cleaned, packaged, and labeled. The parts were manufactured based entirely upon government specifications. On at least one occasion, some of the parts, at the government's request, were remachined. This re-machining was accomplished at Ceradyne's California plant, and there is no evidence in the record to support plaintiffs' claim that the re-machining was done at the Y-12 Plant. Ceradyne last produced parts for DOE in 1987.

C. Beryllium, Its Distinctive Properties and History

Beryllium possesses a unique combination of physical and mechanical properties which render it unlike any other material. It is the only light metal with a high melting point. It has a high strength-to-weight ratio, possesses extreme hardness, is ductile, and is resistant to corrosion. Beryllium has a high permeability to x-rays due to its low atomic weight.

In nuclear reactors and nuclear weapons, beryllium is used as a reflector to confine fission neutrons and as a moderator to reduce their speeds. It has been used in nuclear weapon initiators because beryllium generates neutrons to help start a chain reaction in a supercritical mass of fissionable material, such as plutonium.

Because of the above properties, beryllium is essential to a number of applications related to DOE and DOD programs. Specifically, it has been and remains an essential component of a nuclear weapon and a source of beryllium is considered essential to the defense of the United States. Plaintiffs have suggested that boron could be a substitute for beryllium, but there is no evidence in the record to support that suggestion or that the United States Department of Defense has ever considered boron as a suitable substitute for beryllium.

It has been undisputed since the early 1950s that beryllium is extremely toxic to humans, particularly those with a sensitivity towards it. More than one scientist has described beryllium as, per molecule, "the most deadly substance known to mankind." However, with respect to the construction of the atomic bomb, its use was, and remains today, essential.

D. Berylliosis

During the early commercial applications of beryllium, it became apparent that a lung disease, berylliosis, was associated with exposure to beryllium. The disease reached its apex in the fluorescent and neon lamp tube industry in the late 1940s. At that time, the disease received widespread public notoriety.

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