Genereux v. American Beryllia Corp.

• Decision Date: 29 July 2009
• Docket Number: No. 07-2676.,07-2676.
• Parties: Suzanne GENEREUX, Individually and as Parent and Natural Guardian to minor children A.G. and K.G.; Barry Genereux, Individually and as Parent and Natural Guardian to minor children A.G. and K.G., Plaintiffs, Appellants, v. AMERICAN BERYLLIA CORP.; Brush Wellman, Inc.; Hardric Laboratories, Inc., Defendants, Appellees, Brush Wellman Ceramics, Inc.; Brush Wellman Ceramic Products, Inc.; Kyocera America, Inc.; Kyocera Industrial Ceramics Corp.; Raytheon Company, Defendants.
• Court: U.S. Court of Appeals — First Circuit

577 F.3d 350

Suzanne GENEREUX, Individually and as Parent and Natural Guardian to minor children A.G. and K.G.; Barry Genereux, Individually and as Parent and Natural Guardian to minor children A.G. and K.G., Plaintiffs, Appellants, v. AMERICAN BERYLLIA CORP.; Brush Wellman, Inc.; Hardric Laboratories, Inc., Defendants, Appellees, Brush Wellman Ceramics, Inc.; Brush Wellman Ceramic Products, Inc.; Kyocera America, Inc.; Kyocera Industrial Ceramics Corp.; Raytheon Company, Defendants.

No. 07-2676.

United States Court of Appeals, First Circuit.

Heard September 10, 2008.

Decided July 29, 2009.

Ruben Honik, with whom Stephan Matanovic, Golomb & Honik, P.C., Leo V. Boyle, and Meehan, Boyle, Black and Bogdanow, P.C. were on brief, for appellants.

William F. Ahern, Jr., with whom Jeremy Y. Weltman and Clark, Hunt & Embry were on brief, for appellee American Beryllia Corp.

Robert M.A. Nadeau, with whom Nadeau Law, LLC was on brief, for appellee Hardric Laboratories, Inc.

Jeffery D. Ubersax, with whom Robert S. Faxon, Jones Day, Alan M. Spiro, and Edwards Angell Palmer & Dodge LLP were on brief, for appellee Brush Wellman, Inc.

Before TORRUELLA, BALDOCK^*, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Suzanne Genereux, her husband Barry Genereux, and their children brought suit against various manufacturers of beryllium products, alleging that their products caused injury to Suzanne Genereux when she came into contact with them at her workplace. The complaint asserted negligence, breach of warranty, failure to warn, violation of Massachusetts General Laws chapter 93A, and other claims. The district court granted summary judgment for the defendants on all of the plaintiffs' claims, concluding that the common-law claims were time-barred and that the defendants were relieved of liability under chapter 93A by Massachusetts's "sophisticated user" defense. Plaintiffs appealed.

After a careful review of the record, we conclude that a reasonable jury could find that the plaintiffs' common-law claims were timely and that the sophisticated user defense did not relieve the defendants of liability. We therefore vacate and remand.

I.

On appeal from summary judgment, we take the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. CMI Capital Mkt. Inv., LLC v. Gonzalez-Toro, 520 F.3d 58, 61 (1st Cir.2008).

A. The Raytheon Company and Beryllium

Suzanne Genereux ("Genereux") worked for Raytheon Company ("Raytheon"), a major defense contractor, from 1982 to 1990. She was employed at the company's Waltham, Massachusetts plant, where its Microwave and Power Tube Division was then headquartered. Genereux spent seven years in the plant's Backward Wave Oscillator Lab and one year as a quality assurance technician.¹ In the Backward Wave Oscillator Lab, Genereux assembled components, known as "subassemblies," for incorporation into radar tubes. She spent most of her time working on two subassemblies: the "ARCO window" and the "Tall Man." Both subassemblies contained beryllium.

Beryllium is a silver-grey non-magnetic metal that is exceptionally light, stiff, and able to disperse heat rapidly. When alloyed with other metals, such as copper, beryllium tends to pass on its properties to the alloy. This is also true of beryllium oxide ceramics, or "beryllia," which can withstand extreme temperatures and rapidly disperse heat. These features make beryllium ideal for many specialized applications, including x-ray windows, transistors, jet brake pads, ceramic jet engine blades and rocket covers, nuclear reactors, and nuclear weapons. Unfortunately, however, beryllium dust and fumes are hazardous to human health. In some individuals, inhaling beryllium dust triggers an immune response, causing inflammation and the formation of granulomas in the lung tissue. This disease is known as "chronic beryllium disease," and it gives rise to a number of symptoms, such as coughing, shortness of breath, fatigue, weight loss, fevers, and night sweats. The beryllium industry has long known of the disease and implemented various hygienic controls to prevent it.

Brush Wellman, Inc. ("Brush"), American Beryllia Corp. ("American Beryllia"), and Hardric Laboratories, Inc. ("Hardric") manufacture beryllium ceramic and beryllium alloy parts and supply these parts for use in some of the applications discussed above. Brush is the largest domestic producer of beryllium-containing products, including beryllium oxide ceramics, and sometimes supplies beryllium to other beryllium manufacturers for further processing. Brush is also one of the oldest producers of beryllium products; it has been in existence since 1931 (incorporated as "Brush Beryllium Company"), and its facilities hosted one of the earliest major studies of beryllium exposure and beryllium disease, carried out in the late 1940's by the United States Atomic Energy Commission. American Beryllia was incorporated in 2002 after purchasing the assets of General Ceramics, which had manufactured beryllium products since the 1950's, initially under the name National Beryllia Corporation. General Ceramics, Brush, and Hardric manufactured beryllium parts that Genereux worked with in the Waltham Backward Wave Oscillator Lab.²

Raytheon used both beryllium ceramics and beryllium metals in the Backward Wave Oscillator Lab. Blueprints used by Genereux identified several subassembly parts containing beryllium. For example, the ARCO window contained two beryllium parts: a beryllium copper sleeve and a cylindrical beryllium oxide ceramic. The Tall Man contained a rectangular beryllium oxide ceramic. Genereux performed a number of operations on these parts that produced respirable dust. She filed, sanded, smoothed (using a Dremel rotary tool), and polished beryllium copper and possibly other beryllium metals.³ These processes removed small amounts of material from the metal, some of which were so small that they would become airborne and remain suspended in the air as respirable dust.

Genereux also spent considerable time sandblasting various beryllium ceramics— between two hours a day and eight hours a day, towards the end of the month or when a shipping deadline approached.⁴ She used a pencil grit blaster, which worked by expelling grit from a nozzle controlled by the operator. This process removed small amounts of ceramic material from the beryllia. Although sandblasting took place under a hood,⁵ the ceramic material and some of the grit would become airborne, producing white dust that settled on Genereux's clothes and shoes. In addition to these activities, Genereux was also designated to handle, store, and track all the beryllium parts used in the Backward Wave Oscillator Lab.⁶

Raytheon took steps to control employees' exposure to beryllium dust, and Brush, along with other beryllium producers, provided Raytheon with information about appropriate hygienic controls and exposure rates. We discuss aspects of Raytheon's industrial hygiene program and Brush's input to it below.

B. Diagnosis of Chronic Beryllium Disease

Genereux became ill many times during her employment at Raytheon. Sometime in 1983 or 1984, she developed a cough and shortness of breath. The symptoms were attributed to asthma, and physicians prescribed a treatment regimen of steroids and inhalers. Sometime later, Genereux was hospitalized for five days and diagnosed with "recurrent asthma." Physicians again prescribed inhalers, and supplemented them with prednisone. Genereux returned to work, but after a period of three to four months she developed an upper respiratory infection. Exacerbation of asthma symptoms required Genereux to be hospitalized several times during the year. Throughout this period and afterwards, Genereux regularly sought emergency care. According to the report of a pulmonologist treating her, "she has gone to the emergency room approximately three times a year for respiratory complaints."

In November 1990, Genereux took a medical leave of absence from Raytheon due to a high-risk pregnancy. After her pregnancy, Genereux developed carpal tunnel syndrome and required surgery on both of her hands. Unable to work, she went on "extended sick leave" from Raytheon and ultimately did not return. Genereux began to receive long-term disability benefits through Raytheon during this time. However, in 1994 the insurance company discontinued benefits on the grounds that Genereux was no longer disabled. Genereux repeatedly sought reinstatement of the benefits, arguing that she remained completely disabled and was entitled to benefits until age sixty-five.

Meanwhile, Genereux was formally diagnosed in 1997 with vascular Parkinson's disease in her right side, where she suffered from tremors, pain, and muscle weakness. In late 2000 or early 2001, finding that she was unable to pay her expenses, Genereux wrote United States Senator Jack Reed, seeking his assistance in obtaining reinstatement of the long-term disability benefits and securing a pension. In her letter, Genereux stated that she suffered from Parkinson's disease and was "totally disabled." Genereux then wrote:

I am told that the causes of Parkinson's Disease are still being researched, I am told that environment may be a cause, but it may not be found out in my lifetime. While working for Raytheon, I worked in rooms with asbestos ceilings (which left dust on the benches and other items).... I was forced to sandblast beryllium ceramics with no masks, open sandblasting units, no protective clothing. I also used alot [sic] of acetone and other degreasing agents and worked in a small room off of a large plating room.

She did not mention asthma, lung disease, or pulmonary symptoms of any kind.

After receiving a written response to her letter in late 2001 or early 2001, Genereux called Senator Reed's office. During the ensuing conversation, a staff member asked Genereux "whether she had ever been tested for CBD [chronic...