Bergfeld v. Unimin Corp., 02-2114.

• Decision Date: 11 February 2003
• Docket Number: No. 02-2114.,02-2114.
• Citation: 319 F.3d 350
• Parties: Roger J. BERGFELD, Sr.; Denise I. Bergfeld, Plaintiffs/Appellants, v. UNIMIN CORPORATION, Defendant, Martin Marietta Corporation, also known as Lockheed Martin Corporation, Defendant/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

319 F.3d 350

Roger J. BERGFELD, Sr.; Denise I. Bergfeld, Plaintiffs/Appellants, v. UNIMIN CORPORATION, Defendant, Martin Marietta Corporation, also known as Lockheed Martin Corporation, Defendant/Appellee.

No. 02-2114.

United States Court of Appeals, Eighth Circuit.

Submitted: December 12, 2002.

Filed: February 11, 2003.

COPYRIGHT MATERIAL OMITTED

Michael B. Martin, argued, Houston, TX (Todd Locher, Farley, IA, on the brief), for appellant.

Francis A. Citera, argued, Chicago, IL, (Ruth A. Bahe-Jachna, Chicago, IL, Lisa Harris, Orlando, FL and Larry J. Thorson, Cedar Rapids, IA, on the brief), for appellee.

Before WOLLMAN, LAY, and MAGILL, Circuit Judges.

WOLLMAN, Circuit Judge.

Roger and Denise Bergfeld appeal the district court's¹ adverse grant of summary judgment on their products liability claim. The district court concluded that Roger Bergfeld's (Bergfeld) employer, the John Deere Dubuque Works Foundry, was a sophisticated user of the silica sand that allegedly caused his injuries and thus that Martin Marietta Corporation² (Lockheed Martin) had no duty to warn Deere of the risks posed by excessive exposure to silica sand. We affirm.

I.

From 1976 to 1983 Lockheed Martin sold silica sand to Deere for use in making molds and cores in Deere's Dubuque, Iowa, foundry. Lockheed Martin shipped the sand in bulk to Deere by railcar and tractor-trailer. The Material Safety Data Sheet provided by Lockheed Martin described silica as "nontoxic." When used in a foundry's manufacturing process, however, silica sand fractures into fine dust and becomes airborne. Workers exposed to respirable silica dust are at risk of contracting the lung disease silicosis.

Bergfeld performed several jobs in the Dubuque Works Foundry from March 20, 1972, until 1986. He sampled and tested molds, melted iron, and transferred molten iron from the furnace to the production lines. Bergfeld had no role in ordering or unloading the sand, nor was he responsible for making molds or cores with the sand. Although Bergfeld worked around respirable silica dust, he concedes that he was never exposed to silica in excess of the permissible exposure limit established by the Occupational Safety and Health Administration (OSHA). It was Deere's policy not to provide respiratory protection to workers who were not exposed to silica concentrations exceeding the OSHA limit.

In 1974, the National Institute for Occupational Safety and Health (NIOSH) released a recommendation that the exposure limit for silica be reduced by one half to 50 micrograms per cubic meters over a ten hour work day. Lockheed Martin did not provide information about the NIOSH recommendation to Deere. Unlike the OSHA regulation, which establishes a 100 microgram limit, the NIOSH recommendation is not binding on employers. Bergfeld claimed that Lockheed Martin failed to warn either him or Deere of the risk of silicosis associated with exposure to silica dust concentrations below the maximum level permitted by OSHA regulation but above the maximum level recommended by NIOSH. The district court granted summary judgment to Lockheed Martin on all claims. On appeal, Bergfeld contends that the district court erred in concluding as a matter of law that Lockheed Martin had no duty to warn Deere that silicosis could be contracted from exposure to concentrations of respirable silica dust below the OSHA limit. In addition, Bergfeld contends that the district court erred by considering the affidavit of a witness that Lockheed Martin did not disclose on its witness list.

II.

We review the district court's grant of summary judgment de novo, examining the evidence in a light most favorable to the nonmoving party, in this case Bergfeld. Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir.2002). We affirm only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c).

Iowa has adopted § 388 of the Restatement (Second) of Torts regarding a manufacturer's duty to warn of the dangers associated with the use of its products. Mercer v. Pittway Corp., 616 N.W.2d 602, 623 (Iowa 2000). 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 its 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.

Section 388 is a rule of negligence, not one of strict liability. Mercer, 616 N.W.2d at 623. Subsection (b) embodies the sophisticated user doctrine, which we have described as imposing "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." Vandelune v. 4B Elevator Components Unlimited, 148 F.3d 943, 946 (8th Cir.1998) (applying § 388 under Iowa law and quoting Strong v. E.I. DuPont de Nemours Co., 667 F.2d 682, 687 (8th Cir.1981)).

The district court concluded that Deere was a sophisticated user and thus that Lockheed Martin had no duty to warn Deere or Bergfeld about the dangers of exposure to silica dust. Bergfeld concedes Deere's knowledge that excessive exposure to respirable silica dust increases the risk of contracting silicosis. However, he argues that Deere was insufficiently sophisticated because it did not know of and did not implement safeguards to reduce exposure levels to the NIOSH recommended level.

We are not the first court to address a sophisticated user defense to a negligent failure to warn claim against a supplier of industrial sand. In Smith v. Walter C. Best, Inc., the court affirmed summary judgment in favor of the defendant suppliers of industrial sand. 927 F.2d 736, 737 (3d Cir.1990) (applying § 388 under Ohio law). Like Bergfeld, Smith worked in a foundry and developed silicosis as a result of many years of exposure to silica sand on the job. Id. at 738. Because the sand was delivered in bulk and the plaintiffs did not participate in the delivery process, the foundry was in a better position to convey warnings to the employees. Id. at 740. Furthermore, the court held that it was reasonable for the sand supplier to rely on the foundry's knowledge of the dangers of silicosis, given the regulations governing silica sand, the "state of common medical knowledge," and the foundry's membership in the Industrial Health Foundation, which provided information about occupational diseases including silicosis. Id. at 741.

In Goodbar v. Whitehead Brothers, a case relied upon by the court in Smith, the court discussed the foundry industry's knowledge about silicosis dating back to the 1930s. 591 F.Supp. 552, 562 (W.D.Va. 1984) (applying § 388 under Virginia law), aff'd sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985). The court imputed the extensive knowledge of the American Foundrymen's Society (AFS) to the foundry through its vice president, who was active in the AFS and thereby exposed to much information about silicosis. Id. at 562-63. Goodbar's experts criticized the foundry's corrective measures as evidencing a lack of...