Bergfeld v. Unimin Corp.

• Decision Date: 08 April 2002
• Docket Number: No. C97-1030-MJM.,C97-1030-MJM.
• Citation: 226 F.Supp.2d 970
• Parties: Roger J. BERGFELD, Sr., Denice I. Bergfeld Plaintiffs, v. UNIMIN CORPORATION, and Lockheed-Martin Corporation, Defendants.
• Court: U.S. District Court — Northern District of Iowa

226 F.Supp.2d 970

Roger J. BERGFELD, Sr., Denice I. Bergfeld Plaintiffs, v. UNIMIN CORPORATION, and Lockheed-Martin Corporation, Defendants.

No. C97-1030-MJM.

United States District Court, N.D. Iowa, Dubuque Division.

April 8, 2002.

COPYRIGHT MATERIAL OMITTED

Todd J. Locher, Locher & Locher, Farley, IA, Michael B. Martin, Maloney, Martin & Mitchell, LLP, Houston, TX, for plaintiffs.

Larry J. Thorson, Ackley, Kopecky & Kingery, LLP, Cedar Rapids, IA, Francis A. Citera, pro hac vice, Greenberg, Traurig, LLP, Chicago, IL, Lisa Harris, pro hac vice, Greenberg & Traurig, PA, Orlando, FL, for defendant.

ORDER

MICHAEL J. MELLOY, Circuit Judge, sitting by designation.

Before the court is defendant¹ Lockheed-Martin Corporation's motion for summary judgment on all counts of plaintiffs Roger and Denice Bergfeld's first amended and substituted complaint. Oral arguments were held on December 17, 2001, regarding all pending motions. Count I of plaintiffs' complaint claims a failure to warn, Count II claims strict liability, Count III claims negligence, and Count IV claims loss of consortium. For the following reasons, defendant Lockheed-Martin's motion for summary judgment on all counts is granted.

STANDARD OF REVIEW

The standard for granting summary judgment is well established. A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Montgomery v. John Deere & Co., 169 F.3d 556, 559 (8th Cir. 1999). Rule 56(c) of the Federal Rules of Civil of Procedure provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Particularly relevant in this case is the fact that

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548 (quoting Fed. R. Civ. Pro. 56(c)). Once the moving party has carried its burden the opponent "must do more than simply show that there is some metaphysical doubt as to the material facts[,]" that is, the opponent must go beyond the pleadings and designate specific facts that show there is a genuine issue for trial. Matsushita Electric Industrial Co. Ltd., 475 U.S. at 586, 106 S.Ct. 1348 (internal citations omitted) (footnote omitted). The opponent may use such methods as affidavits, depositions, answers to interrogatories, and admissions on file to show the court there is indeed a genuine issue for trial. Fed.R.Civ.P. 56(e). The evidence of the nonmoving party is to be considered as true, and justifiable inferences arising from the evidence are to be drawn in his or her favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

FACTS

Plaintiffs Roger and Denice Bergfeld are residents of Dubuque, Iowa. Defendant Lockheed-Martin Corporation² is a Delaware corporation. The parties are before the court on diversity jurisdiction. Plaintiff Roger Bergfeld suffers from silicosis, a lung disease caused by excessive exposure to respirable silica.³ Plaintiffs claim the defendant Lockheed-Martin is responsible for Roger Bergfeld's silicosis because Lockheed-Martin supplied industrial sand⁴ in bulk to Bergfeld's employer, John Deere Dubuque Works Foundry [hereinafter Dubuque Works Foundry or John Deere]. Plaintiff Roger Bergfeld was an employee of the Dubuque Works Foundry from March 20, 1972, until it closed in approximately February of 1987. Bergfeld continued his employment with John Deere until his retirement in March of 1999. Bergfeld alleges Lockheed-Martin was negligent in failing to warn his employer of the potential risks of exposure to industrial sand at levels below the Occupational Safety and Health Administration's permissible exposure limits (OSHA PEL). Plaintiffs contend Lockheed-Martin had a duty to notify the Dubuque Works Foundry of a lower recommended exposure limit issued by the National Institute of Occupational Safety and Health (NIOSH REL).

Defendant Lockheed-Martin sold industrial sand to plaintiff Roger Bergfeld's employer, the Dubuque Works Foundry. While employed at the Dubuque Works Foundry, Roger Bergfeld occupied several jobs. Bergfeld was a sampler and tester of molds from March 1972 to March 1973; a telpher car operator (transferring molten iron from the furnace to the various production lines) from March 1973 to December 1982; a cupola operator (melting the iron) from December 1982 to March 1986; and again as a telpher car operator from March 1986 to February 1987.

The Dubuque Works Foundry purchased its industrial sand from two Lockheed-Martin sand facilities located in Clayton, Iowa, and Oregon, Illinois, between the years 1976 through 1983. In 1976, Lockheed-Martin shipped 56.9 tons of industrial sand from its Clayton, Iowa, facility to the Dubuque Works Foundry. In 1978, Lockheed-Martin shipped 32,149.69 tons of industrial sand from its Clayton, Iowa, facility to the Dubuque Works Foundry. In 1979, Lockheed-Martin shipped 32.9 tons of industrial sand from its Clayton, Iowa, facility to the Dubuque Works Foundry. In 1982, Lockheed-Martin shipped 637.14 tons of industrial sand from its Oregon, Illinois, facility to the Dubuque Works Foundry⁵. Lockheed-Martin closed the Clayton, Iowa, facility in 1981 or 1982. Lockheed-Martin slowly sold off its industrial sand operations, selling the Oregon, Illinois, plant to Unimin Corporation in 1983. Lockheed-Martin sold its final industrial sand facility in Wedron, Illinois, to Wedron Silica Company, an Ohio corporation, on July 31 1984, which divested Lockheed-Martin of all of its interests in supplying industrial sand to the Dubuque Works Foundry.

When operating the sand facilities, Lockheed-Martin hydraulically mined and washed the sand. Hydraulic mining included the use of a high-pressured hose to break the sandstone up, after which the sand was vacuumed up, washed, and then moved to a stacking operation to drain the water. The sand was then dried and put through a screening and grading process, moved to silos sorted by grade, and finally shipped out to purchasers.

Industrial sand, or crystalline silica, was used in the Dubuque Works Foundry to fabricate molds and cores for metal castings and parts to be used in John Deere's farm and industrial equipment. The sand arrived at the Dubuque Works Foundry by railcar or semi tractor-trailer. Once at the Dubuque Works Foundry, the sand was moved by way of conveyors located above and below the ground. Plaintiff Roger Bergfeld did not order or purchase the sand, did not unload the sand when it arrived at the Dubuque Works Foundry, did not have responsibility for mixing the sand that was to be used for making the molds, did not make the molds or cores, and did not operate a sand muller.

When the sand is used in the manufacturing process, it typically fractures into fine particles and becomes airborne. This is where the risk of contracting silicosis lies. Silicosis, an occupational disease, is caused by excessive exposure to and inhalation of the crystalline silica used in foundry operations. The airborne silica particles become trapped in the lungs. The lung tissue develops fibrotic nodules and scarring around the trapped silica particles. If the nodules grow, breathing becomes laborious as the lungs' capacity to absorb and process oxygen is diminished. Symptoms of silicosis include shortness of breath, fever, and bluish skin.

The Department of Labor's Occupational Safety and Health Administration (OSHA) standards have a permissible exposure limit (PEL) for silica of 100 micrograms per cubic meter, or .1 milligrams per cubic meter over a time weighted average of eight hours. 29 C.F.R. § 1910.1000 (2001)⁶. OSHA is the federal agency which promulgates regulations regarding the occupational environment. Employers are charged with furnishing for their employees a safe working environment free from recognized hazards and in compliance with the occupational safety and health standards promulgated by OSHA. 29 U.S.C. § 654(a)(1)-(2). The National Institute of Occupational Safety and Health (NIOSH), an agency of the Department of Health and Human Services, is charged with "develop[ing] and establish[ing] recommended occupational safety and health standards[.]" 29 U.S.C. § 671(c)(1). Unlike OSHA standards, NIOSH recommendations are not binding on employers. NIOSH standards have a recommended exposure limit (REL)...