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Sawyer v. Union Carbide Corp.

United States District Court, D. Maryland

April 29, 2019

Janya Sawyer, et al.,
v.
Union Carbide Corporation., et al.

          MEMORANDUM

          Catherine C. Blake United States District Judge.

         Pending before the court is Janya Sawyer's motion for partial summary judgment as to defendant Foster Wheeler, LLC's ("Foster Wheeler") sophisticated user and superseding cause defenses. For the reasons outlined below, the court will grant Sawyer's motion. The issues have been briefed and no oral argument is necessary. See Local Rule 105.6 (D. Md. 2018).

         BACKGROUND

         On December 1, 2014, Joseph Morris was diagnosed with asbestos-related mesothelioma. (Compl. at 12, ECF No. 2).[1] On March 1, 2015, Morris succumbed to the disease. (Id. at 13). The plaintiffs brought suit against Foster Wheeler, and a host of other defendants, alleging that Morris's mesothelioma was caused by his work at the Bethlehem Steel Sparrows Point Shipyard ("Bethlehem Steel") from 1948 through the 1970s. (Id. at 12). In its answer to the amended complaint, Foster Wheeler asserted several affirmative defenses. (Answer Am. Compl. at 4, 6, ECF No. 92). The plaintiffs have moved for partial summary judgment, seeking to bar two of these defenses: the sophisticated user defense; and the superseding cause defense.

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (emphases added). "A dispute is genuine if 'a reasonable jury could return a verdict for the nonmoving party.'" Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Didaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). "A fact is material if it 'might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Anderson, 477 U.S. at 247-48. The court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam), and draw all reasonable inferences in that party's favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the, court must "prevent factually unsupported claims and defenses from proceeding to trial." Boachat v. Bait. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

         ANALYSIS

         Sophisticated User Defense

         The sophisticated user defense insulates suppliers of dangerous or defective products from liability for failing to provide a warning to users of the product if the supplier reasonably relied on an intermediary to provide a warning. See Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179, 217-18 (1992). In recognizing the defense in the product liability context, the Maryland Court of Appeals adopted the majority view of the sophisticated user defense, as set forth in § 388 of the Second Restatement of Torts, and accompanying comment n. See Id. at 218; Kennedy v. Mobay Corp., 84 Md.App. 397, 403-13 (1990), qff'd 325 Md. 385 (1992) (per curiam).[2] As outlined in the Restatement, to determine whether the defense applies, the court "focuses on the conduct of the supplier of the dangerous product, not on the conduct of the, intermediary." Eagle-Picher, 326 Md. at 218. Evidence that the intermediary understood the product's risks "does not, in and of itself, absolve the supplier of a duty to warn ultimate users." Id. Instead, the court must weigh several factors to determine whether the supplier acted reasonably in relying on the intermediary to warn users. Id. Specifically, the court must consider:

(1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burdens imposed on the supplier by requiring that he directly warn all users.

Id. at 219 (citing Mobay, 84 Md.App. at 405).

         This inquiry is inherently factbound, and in assessing whether the supplier acted reasonably, the court must weigh the "magnitude of the risk involved" with the "burden which would be imposed" by requiring additional precautions. Restatement (Second) of Torts: Chattel Known to be Dangerous for Intended Use § 388 cmt. n(AM. Law Inst. 1965). For example, "when the chattel is to be used in the presence or vicinity of the person supplying it" the burden imposed on the supplier by requiring the supplier to warn the user directly is slight. Id. The manner in which a product is distributed to an intermediary also affects the court's calculus. "For instance, when a supplier ships silica sand to a factory in railroad car quantities, it has been held reasonable for the supplier to rely on the knowledgeable management of the factory to disseminate warnings to the workers." Eagle-Picher, 326 Md. at 219. But if the supplier distributes its product in individual bags that are "personally handled by the workers, the balance of factors may favor requiring the supplier to place a warning on the bags." Id.

         The reasonableness of the supplier's reliance on the intermediary to warn users of the product's dangers turns on not only the dangers posed by the product, or the manner in which the product is distributed, but also on what the supplier knows about the character and reliability of the intermediary. Id. "To be entitled to a sophisticated user instruction, suppliers, at a minimum, must have introduced evidence that they warned the intermediary of the danger, or that they knew a warning was unnecessary because the intermediary was already well aware of the danger." Eagle-Picher, 326 Md. at 220 (internal citations omitted). Absent such a showing, the sophisticated user defense is inapplicable. The sophisticated user defense as set forth in comment n of the Second Restatement "clearly focuses on what the product manufacturer knew and the reasonableness of its reliance on the employer prior to and during the time the workers were exposed" Id. at 221 (quoting Willis v. Raymark Industries, Inc., 905 F.2d 793, 797 (4th Cir. 1990)).

         Foster Wheeler sets forth extensive evidence of Bethlehem Steel's knowledge of the dangers of asbestos exposure. But Foster Wheeler has not established that prior to and during Morris's employment, Foster Wheeler was aware of Bethlehem Steel's knowledge of asbestos-related health risks, or that it was reasonable for Foster Wheeler to rely on Bethlehem.Steel to warn its employees about these health risks. By way of example, Foster Wheeler argues that Bethlehem Steel had extensive knowledge of the dangers of asbestos exposure: in 1942 the U.S. Maritime Commission commissioned a health survey of Bethlehem Steel's Fairfield Shipyard, which recommended improved ventilation practices, (Def's Resp. Opp'n Pl.'s Mot. Partial Summ. J. ("Def.'s Resp.") Ex 3 at 4, 13-16, ECF No. 465-3);[3] in 1945 an industrial health survey was conducted at the Sparrows Point shipyard, which concluded that the use of asbestos was not a health hazard to Bethlehem Steel employees, (id. Ex 4 at 15, ECF No. 465-4); in 1945 the Bethlehem Steel Medical Director at Fore River Shipyard participated in another industrial health survey related to asbestos exposure and asbestos diseases, (id. Ex 5, ECF No. 465-5); in 1960, Bethlehem Steel set forth general safety rules for employees, which included requirements for respiratory protection, (id Ex 9 at 5, ECF No. 465-9); in 1968 Dr. Paul J. Whitaker, Bethlehem Steel's Medical Director wrote in a memo that "there seems to be little doubt that a positive correlation exists between asbestosis and pleural or peritoneal mesothelioma," (id. Ex 14 at 3, ECF No. 465-14);. in 1968. Allen D. Brandt, Bethlehem Steel's Manager of Industrial Health Engineering, wrote that "Bethlehem Steel Corporation has been aware of the asbestosis problem among employees exposed to asbestos ...


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