Taylor v. American Chemistry Council

Decision Date03 August 2009
Docket NumberNo. 07-2422.,07-2422.
Citation576 F.3d 16
PartiesJune A. TAYLOR, et al., Plaintiffs, Appellants, v. The AMERICAN CHEMISTRY COUNCIL, et al., Defendants, Appellees, Airco, Inc., et al, Defendants.
CourtU.S. Court of Appeals — First Circuit

Ronald Simon, with whom Simon & Associates, Herschel L. Hobson, The Law Office of Herschel L. Hobson, Peter B. Sessa, and Sessa, Glick & Quiroga LLP were on brief, for appellants.

Timothy J. Coughlin, Heidi B. Goldstein, Andrea B. Daloia, Thompson Hine LLP, Richard L. Neumeier, Mark S. Granger, and Morrison Mahoney LLP on brief for appellees American Chemistry Council and Goodrich Corporation.

Samuel Goldblatt, with whom Joseph J. Leghorn, J. Christopher Allen, Jr., Nixon Peabody LLP, William E. Padgett, Michael Moon, Jr., and Barnes & Thornburg, LLP were on brief, for appellee The Dow Chemical Company.

Michael K. Callan, Doherty, Wallace, Pillsbury & Murphy, P.C., William Gorenc, Jr., and Marco, Marco & Bailey on brief for appellee GenCorp, Inc.

John B. Manning, Brian D. Gross, Cooley Manion Jones LLP, Gail C. Ford, and Vorys, Sater, Seymour and Pease LLP on brief for appellee Goodyear Tire & Rubber Company.

W. Ray Persons, with whom Carmen R. Toledo, King & Spalding, Lawrence G. Cetrulo, Christopher M. Tauro, and Cetrulo & Capone LLP were on brief, for appellee Union Carbide Corp.

Before BOUDIN, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

The surviving wife and sons of Claude Taylor ("Taylor") brought suit against various companies in the polyvinyl chloride ("PVC") industry and an industry trade association, alleging that their failure to warn, fraud, and civil conspiracy caused Taylor's wrongful death. After discovery, defendants moved for summary judgment on all counts. The district court granted summary judgment, holding that Taylor's employer, Monsanto Company ("Monsanto"), was a sophisticated user of defendants' products and the defendants owed Taylor no duty to warn about the dangers of their products. The district court dismissed the fraud and conspiracy claims as well, finding no evidence in the record that the defendants were responsible for the warnings in question, or that they had any knowledge of or control over Monsanto's activities at the plant where Taylor worked. Plaintiffs appealed.

After examining the record, we agree with the district court's conclusion that Monsanto was a sophisticated user of the defendants' products, and that, on this record, a reasonable jury could not find for the plaintiffs on the fraud and conspiracy claims. We therefore affirm.

I.

Because this is an appeal from a grant of summary judgment, we recite the facts in the light most favorable to the non-movants, here the appellants. Levesque v. Doocy, 560 F.3d 82, 84 (1st Cir.2009). In light of the district court's exhaustive account below, see Taylor v. Airco, Inc., 503 F.Supp.2d 432, 436-42 (D.Mass.2007), we confine ourselves to the facts necessary for our decision.

Taylor worked for Monsanto from 1953 to 1989, at the Indian Orchard plant in Springfield, Massachusetts. For much of this period, Taylor was employed in the plant's PVC polymerization department. PVC was manufactured at Indian Orchard by combining "vinyl chloride monomer" ("VC"), water, a suspending agent or emulsifier, and a catalyst in a large tank, or "kettle." At various stages of the manufacturing process, small amounts of VC were released into the ambient air of the workspace, thereby exposing Taylor to the chemical. In August 1975, Monsanto closed down its PVC operations at Indian Orchard, and Taylor took a new position in which he was not exposed to VC.

Monsanto acquired the VC it used at Indian Orchard from a variety of sources. In 1952, Monsanto began manufacturing VC at its plant in Texas City, Texas. Monsanto shipped VC manufactured in Texas City by pressurized railcar to Indian Orchard, where it was stored in outdoor tanks until it was processed. Between 1952 and 1969, the Texas City plant supplied most of the VC used at Indian Orchard. However, Monsanto also obtained some amounts of VC from other suppliers as backup. Included among these suppliers was appellee The Dow Chemical Company ("Dow"). In 1969, Monsanto's Texas City plant shut down, and Dow became the principal supplier of VC to Indian Orchard. Other VC suppliers included appellees Goodrich Corporation ("Goodrich") and Union Carbide Corporation ("Union Carbide").

Many of the dangers associated with VC have long been understood. By the 1960's, the plastics industry knew that VC was highly flammable and that it had anaesthetic effects when inhaled in high concentrations. Early safety warnings issued by the industry reflect this knowledge. The warning principally at issue in this case, "Chemical Safety Data Sheet SD-56" ("SD-56"), was published by an industry trade association, appellee American Chemistry Council ("ACC"), and provided to PVC manufacturers.1 The first version of SD-56, published in 1954, was sixteen pages in length, and contained information about the scientific properties of VC, as well as proper methods for shipping, unloading, storing, and handling VC. The document also identified fire and explosion as the principal health hazards associated with VC, and stated that other than these hazards, VC "present[ed] no very serious risk in general handling." SD-56 also recommended that workplace "concentration[s] of vinyl chloride ... be kept below the upper safe limit of 500 ppm [parts per million] at all times." The same limit had been adopted in 1946 by the American Conference of Governmental Industrial Hygienists ("ACGIH") as the "Threshold Limit Value" ("TLV").2 Monsanto incorporated a 500 ppm exposure limit (as well as other language from SD-56) into the 1965 Indian Orchard "Standard Procedure" manual for PVC polymerization.

In the late 1950's and 1960's, companies in the PVC industry began to learn that exposure to VC was more dangerous than previously believed. We describe these developments in greater detail below, but, broadly speaking, three discoveries were made. First, in 1959, scientists at Dow discovered that chronic exposure to VC in concentrations as low as 100 ppm caused liver injury in laboratory animals. Second, in 1964 appellee Goodrich discovered that a significant number of its PVC kettle cleaners had developed a degenerative hand condition, now known as "acroosteolysis." Third, in late 1969 or early 1970, Italian doctor P.L. Viola discovered cancerous tumors in rats exposed to 30,000 ppm of VC for four hours a day, five days a week, for twelve months.

Despite the discoveries during this period, ACC did not revise SD-56 until 1972. The revised 1972 version of SD-56 warned that "[c]hronic overexposure [to VC] may produce liver injury," and noted the discovery of acroosteolysis among PVC workers. The revised version also stated, "[r]ecent research studies reported from Italy indicate that repeated, long-term high level exposures of rats to vinyl chloride monomer vapor can cause the development of malignant tumors. However, many years of industrial experience ... have not demonstrated any carcinogenicity to humans." The 1972 SD-56 maintained a recommended exposure limit of 500 ppm, which it characterized as "well below a level producing any signs or symptoms of toxicity."

In contrast, in 1972 ACGIH revised the TLV from 500 ppm to 200 ppm.3 In February 1973, Dow mailed its customers a copy of the 1972 SD-56 with a sticker affixed to the front. The sticker noted ACGIH's reduction of the TLV to 200 ppm, and stated that Dow maintained an average exposure limit in its own facilities of 50 ppm. In an attached cover letter, Dow recommended that its customers adopt the 50 ppm limit and offered to assist them in reaching it.

On January 23, 1974, appellee Goodrich issued a press release disclosing that three of its PVC workers had died of angiosarcoma, a rare form of liver cancer. The press release stated that Goodrich was investigating whether the deaths were "related to occupational causes." Monsanto immediately informed employees at the Indian Orchard plant. Prior to this time, supervisors at Indian Orchard did not know that VC presented a cancer risk to humans.4 On April 5, 1974, the United States Occupational Safety and Health Administration ("OSHA") established an emergency temporary VC exposure limit of 50 ppm as a ceiling value. On October 4, 1974, OSHA established a Permissible Exposure Limit ("PEL") of 1 ppm as an eight-hour time-weighted average, and 5 ppm as a ceiling averaged over any period exceeding 15 minutes.

On March 20, 2000, Claude Taylor was diagnosed with intrahepatic cholangiocarcinoma, a form of liver cancer. He died seven months later, on October 30, 2000.

II.

On January 31, 2002, Taylor's surviving wife and sons brought suit against Monsanto, ACC, Dow, Goodrich, Union Carbide, and other VC suppliers and PVC manufacturers, alleging their liability for failure to warn, fraud, and civil conspiracy. Subsequently, on February 3, 2005, plaintiffs filed a Second Amended Complaint ("the Complaint") against eighteen defendants.5 The Complaint contains ten counts. Counts I-IV and Count X allege failure to warn under various theories against the "Manufacturer/Supplier Defendants," Dow, Goodrich, and Union Carbide. Count V alleges fraud and fraudulent concealment against the Manufacturer/Supplier Defendants. Counts VI-VIII allege failure to warn against Monsanto. Finally, Count IX alleges civil conspiracy against the "Conspiring Defendants," which include ACC, Dow, GenCorp Inc. ("GenCorp"), Goodrich, The Goodyear Tire and Rubber Company ("Goodyear"), Union Carbide, and other named parties.

After various dismissals by the district court, ten defendants remained in the case: ACC; Borden, Inc.; Conoco, Inc.; Dow; GenCorp; Goodrich; Goodyear; Honeywell International, Inc.; Olin Corporation; and Union Carbide. The defendants moved for summary judgment on...

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