Goodbar v. Whitehead Bros., Civ. A. No. 82-0160-L

CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
Citation591 F. Supp. 552
Docket NumberCiv. A. No. 82-0160-L,83-0014-L and 83-0111-L,No. C/P No. 83-2.,C/P No. 83-2.
PartiesFreemont GOODBAR, et al., Plaintiffs, v. WHITEHEAD BROTHERS, et al., Defendants. James W. BEALE, et al., Plaintiffs, v. WHITEHEAD BROTHERS, et al., Defendants. James B. BARRETT, et al., Plaintiffs, v. WHITEHEAD BROTHERS, et al., Defendants.
Decision Date30 July 1984

Gregory P. Cochran, Lynchburg, Va., Donald Pendleton, Pendleton & Gamble, Amherst, Va., for plaintiffs.

John M. Oakey, Jr., McGuire, Woods & Battle, Richmond, Va., William B. Poff, Woods, Rogers, Muse, Walker & Thornton, William O. Tune, Jr., Gentry, Locke, Rakes & Moore, Roanoke, Va., James W. Morris, III, Browder, Russell, Morris & Butcher, Richmond, Va., Barbara Kacir, Cleveland, Ohio, Marianne Corr, Jones, Day, Reavis & Pogue, Washington, D.C., Gregory P. Cochran, Lynchburg, Va., George W. Wooten, Woodward, Fox, Wooten & Hart, Roanoke, Va., Howard W. Rhodes, Jr., Rhodes, Jennings & Livingston, Henry M. Sackett, III, Edmunds, Williams, Robertson, Sackett, Baldwin & Graves, Lynchburg, Va., Frank B. Miller, III, Sands, Anderson, Marks & Miller, Richmond, Va., Mark Feldmann, Glenn, Flippin, Feldmann & Darby, Carroll D. Rea, Hazlegrove, Dickinson, Rea, Smeltzer & Brown, Roanoke, Va., Colin S.J. Thomas, Jr., Staunton, Va., Donald Pendleton, Pendleton & Gamble, Amherst, Va., C. Michael DeCamps, Cabell, Paris, Lowenstein & Bareford, Richmond, Va., J. Gorman Rosenberger, Jr., Kizer, Phillips & Petty, Alexander W. Bell, Bell, Morrison & Spies, Lynchburg, Va., for defendants.


KISER, District Judge.

Before the Court are Defendants' joint motions for summary judgment on the duty to warn issue. The parties have submitted various briefs and appendices in support of their respective positions, and oral argument was held on June 4, 1984. This matter is now ready for disposition by the Court pursuant to Fed.R.Civ.P. 56.

I. Parties

The three1 above-styled cases were filed respectively on September 1, 1982; January 27, 1983; and July 29, 1983. These consolidated diversity actions present negligence and warranty claims of some 132 present and former employees2 of the Lynchburg Foundry ("Foundry") against the following Defendants: Manley Brothers; Pennsylvania Glass Sand Corporation; Foseco, Inc.; Hardy Sand Company; Warner Company; Whitehead Brothers Company; American Colloid Co.; Babcock & Wilcox Company; C.E. Minerals; Fireline, Inc.; McIntyre Enterprises, Inc.; and Thomas H. Hardy, individually and trading as Hardy Sand Company. These twelve Defendants allegedly supplied to the Lynchburg Foundry silica sand or related products used in the casting process at the Foundry.

II. Facts

The Lynchburg Foundry, a large manufacturer of metal castings, has foundry facilities in three different locations in Virginia: the Lower Basin and Archer Creek plants in Lynchburg and the facility in Radford. The Lower Basin, where these Plaintiffs were and/or are employed, is the oldest of the Lynchburg Foundry facilities. It began as a plow factory in 1899. In the late 1970s, the majority of the Foundry's approximately 4,500 employees were involved in the iron castings production process. Of this number, some 1,800 persons were employed at the Lower Basin plant which rain two to three shifts daily.

The molding process in foundries such as the Lynchburg Foundry utilizes enormous quantities of silica sand. In 1980, this industry employed 430,000 production workers and produced nearly 16 million net tons of castings valued in excess of 18 billion dollars. One estimate places the foundry industry's current annual and consumption figure in excess of ten million tons.

Without getting into extensive detail about the intricacies of the entire casting operation at the Lower Basin plant, some background is necessary. Sand is supplied to the Foundry unpackaged in railroad car lots. According to one Foundry employee, sand has never been delivered to the Lynchburg Foundry in bags as opposed to railroad cars and occasional delivery in trucks. It is emptied from the cars onto conveyor belts or pneumatic transporters where it is conveyed to large tanks or sand silos for storage. Upon removal from storage, the sand is used in the various stages of metal castings production.

There are two casting facilities at the Foundry: the Green Sand and the Shell Molding plants. The former produces medium size iron castings such as engine blocks and transmission housings that weigh between 100 and 1,000 pounds. The Shell Molding plant produces smaller castings such as transmission, brake, and refrigerator parts ranging in weight from ½ to 100 pounds.

Basically, the sand is used to make the different cores and molds which are utilized in the molding process where molten metal is then poured into the molds. Next, comes the shakeout action where the mold is broken and the sand is removed from the newly made casting. In the knockout area, the riser insulating sleeves and pieces of excess metal used in the molding operation are cut or knocked off. Then the castings are cleaned by shot blasting and grinding machines. Finally, the new casting is inspected and moved to the warehouse.

As the silica sand and silica-related products are handled in the different casting production stages, the silica is fractured and respirable free-floating dust or free silica is produced. Those silica particles larger than 10 microns are captured or collected by the body's natural defenses. The particles at issue in this case measure between 2 and 10 microns in diameter and are invisible to the naked eye. They escape the natural barriers of the body, enter the lungs, and cause the formation of scar tissue or nodules which inhibits breathing. If inhaled in sufficient quantities over extended periods of time ranging from 5 to 20 years, the respiratory disease of silicosis results.


The complaints allege that Defendants supplied to the Lynchburg Foundry silica sand and silica-containing products including riser sleeves, coatings, clays, and other items used in the making of metal castings and that Defendants failed to advise the Foundry's employees with respect to the dangerous characteristics of silica products and how to protect themselves from them. As a result of their exposure to silica and respirable free silica, Plaintiffs claim that they each contracted silicosis.

Plaintiffs aver causes of action founded upon negligence, breach of express and implied warranties, and strict liability. The allegations of strict liability in tort have previously been dismissed by the Court since the Supreme Court of Virginia has not adopted the doctrine of strict liability set forth in the RESTATEMENT (SECOND) OF TORTS § 402A (1965).3 See Matthews v. Ford Motor Co., 479 F.2d 399, 401 n. 2 (4th Cir.1973); Brockett v. Harrell Brothers, Inc., 206 Va. 457, 462-63, 143 S.E.2d 897, 902 (1965); Moore v. Allied Chemical Corp., 480 F.Supp. 364, 376 (E.D.Va.1979); Briggs v. Zotos International, Inc., 357 F.Supp. 89, 92 (E.D.Va. 1973). Beyond the express warranty claim alleged in the complaints, no suggestion of any evidence of any such warranty has been advanced by Plaintiff, either on brief or in oral argument. Va.Code § 8.2-313. Likewise, there has been no support for the implied warranty of fitness for a particular purpose. Va.Code § 8.2-315. Having found no basis for either the express or implied warranty for fitness claims in the cases at bar, this opinion will now focus upon the remaining legal theories of negligence and breach of the implied warranty of merchantability. See Va.Code § 8.2-314; Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 961-64, 252 S.E.2d 358, 366-67 (1979); Logan v. Montgomery Ward & Co., Inc., 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975).

Defendants preface their summary judgment argument by pointing out that for purposes of these motions only the Court may assume that all Defendants sold silica products to the Foundry in one form or another; that all Plaintiffs were exposed to all Defendants' products while employed at the Lower Basin plant; that Plaintiffs had no knowledge of the dangers associated with free silica; and that exposure to silica did result in silicosis. Although Manley Brothers and the remaining eleven Defendants submitted separate briefs, appendices, and argument in support of their motions for the summary judgment, I will not distinguish between them due to the close interrelationship of their arguments.

Essentially, Defendants have made a two-pronged argument on the duty to warn issue. They contend that there was no obligation on their part to warn the Foundry's employees of the risks of silicosis because: (1) silicosis is an occupational respiratory disease about which the foundry industry and, more importantly the Lynchburg Foundry, has been knowledgeable since at least the 1930's; and (2) only the Plaintiff's employer, the Lynchburg Foundry, can communicate any type of effective warnings.

In response, Plaintiffs principally argue that Defendant suppliers owed a non-delegable duty to warn about the dangers associated with the use of silica products not only to the Lynchburg Foundry, but more importantly its employees; and that these hazards are latent.

Neither party makes any distinction in their briefs or oral argument as to when the duty to warn arises in the negligence claim and when it arises in the implied warranty of merchantability claim. Both parties agree that the RESTATEMENT (SECOND) OF TORTS § 388 (1965)4 controls. See Featherall v. Firestone Tire & Rubber Co., Inc., 219 Va. at 962, 252 S.E.2d at 366.

In many instances, this is true because the same defect or dangerous condition which makes it negligent for a supplier to fail to warn also makes the product defective under a warranty theory if no warning is given. Here, where the real thrust of the Defendants' argument is based upon the...

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