ORDER DENYING DEFENDANT’S MOTION TO STRIKE AND GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION AND SUMMARY CONCLUSION
The present matter comes before the Court on defendant Ferro Corporation’s Motion for Summary Judgment and Motion to Strike. Dkt. Nos. 62, 66. Plaintiffs Steven and Susan Headley (“Plaintiffs”) have filed a brief opposing these motions, Dkt. Nos. 75 and 88, to which Ferro has replied. Dkt. No. 80. Oral argument in this matter was held on May 19, 2008. After careful consideration of the motions, responses, governing law and the balance of the record, the Court ORDERS that defendant’s Motion to Strike be DENIED and defendant’s Motion for Summary Judgment be GRANTED IN PART AND DENIED IN PART.
II. FACTS AND PROCEDURAL HISTORY
This is a personal injury case. Plaintiff Steven Headley (“Mr. Headley”) has sued Ferro Corporation (“defendant” or “Ferro”) for damages he suffered as a result of his exposure to silica or silica-containing dry enamel products during the course of his employment at A.O. Smith Corporation from 1976 to 2005 as a sprayer in the manufacture of water heaters. A.O. Smith is a corporation that manufactures, sells, and supplies boiler tanks and other products. Plaintiff worked at A.O. Smith’s Seattle plant from 1976 to 1993, and thereafter at the Renton plant. His job consisted of manually spraying the inside of water heaters with a substance known as “frit,” a vitreous material used in making porcelain, glazes, or enamels. Frit is the base ingredient of the product at issue that was manufactured and sold by Ferro in this case (Product Number 2772-2).
Plaintiffs allege that Mr. Headley was exposed to high amounts of silica when mixing, spraying, sanding and cleaning Ferro’s product during his employment at A.O. Smith and is now disabled and suffers from silicosis as a result.
See
Dkt. No. 2 at 7;
see also
Dkt. No. 81, Ex. 9 at 3 (Firestone Report) (diagnosing “classic” silicosis),
and
Dkt. No. 76 at 3 & Ex. 1 at 3, 7 (Dr. Smith Deck and Report) (diagnosing slowly progressive complicated silicosis).
1
Plaintiffs allege that A.O. Smith purchased the silica-containing dry enamel
The plaintiffs have made claims against Ferro for negligence, willful or wanton misconduct, product liability, product misrepresentation, breach of warranty, market share liability and/or market share alternate liability, and enterprise liability. Ferro has moved for summary judgment on all claims.
III.JURISDICTION
This action was removed pursuant to 28 U.S.C. § 1441. Pursuant to 28 U.S.C. § 636(c), the parties have consented to having this matter heard by the undersigned Magistrate Judge. Subject matter jurisdiction exists under 28 U.S.C. § 1332. The Court has general and specific personal jurisdiction over Ferro because it conducted substantial business in this jurisdiction or otherwise purposely availed itself of the benefits and protections of the forum state, and the alleged cause of action arose out of its forum-related activities. Venue is proper under 28 U.S.C. § 1391(b).
IV.CHOICE OF LAW
Under the Erie Doctrine, a federal court sitting in diversity applies federal procedural law and the substantive law of the forum state — here, the State of Washington.
Erie R.R. Co. v. Tompkins,
V.SUMMARY JUDGMENT STANDARD
“Claims lacking merit may be dealt with through summary judgment” under Rule 56 of the Federal Rules of Civil Procedure.
Swierkiewicz v. Sorema N.A,
When applying these standards, the Court must view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.
United States v. Johnson Controls,
Once this has occurred, the procedural burden shifts to the party opposing summary judgment, who must go beyond the pleadings and affirmatively establish a genuine issue on the merits of the case. Fed.R.Civ.P. 56(e). The nonmovant must do more than simply deny the veracity of everything offered or show a mere “metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
VI. DISCUSSION
A. Defendant’s Motion to Strike
Expert reports were due in this case by March 25, 2008. See Dkt. No. 59 (also allowing plaintiffs opportunity to amend expert reports beyond such date). According to the defendant, plaintiffs did not identify Dr. Dorsett Smith as an expert until April 22, 2008, “when they submitted the Smith Declaration in opposition to Ferro’s motion for summary judgment.” Dkt. No. 80 at 9-10. Defendant argues that for at least two reasons, Fed.R.Civ.P. 37 mandates exclusion of Dr. Smith’s declaration. See Dkt. No. 78 (Smith Deck). First, defendant asserts that the declaration was untimely and insists that plaintiffs have provided the Court with no reason, much less “substantial justification,” for its late disclosure of Dr. Smith’s declaration. See Fed.R.Civ.P. 37(c)(1) (“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”). Second, defendant argues that Dr. Smith’s declaration should be stricken because plaintiffs failed to accompany his testimony with an expert report as required by Rule 26(a). This rule provides that expert disclosures “must be accompanied by a written report ... if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B) (emphasis added).
The Court concludes that both of defendant’s rationales fail to disqualify the declaration of Dr. Smith. First, plaintiffs’ identification of Dr. Smith was neither untimely nor a surprise under Rule 37. On July 2, 2007 — a mere two months after plaintiffs’ case was removed to this court— plaintiffs identified the name and address of Dr. Smith in their initial disclosures as a person who had “treated Mr. Headley with respect to his silicosis or following his development of silicosis” and could provide relevant discoverable information. Dkt. No. 83, Ex. 1 at 2-3, ¶ 5. On the same date, plaintiffs submitted Dr. Laura Perry’s Medical Records related to Mr. Headley, which included Dr. Smith’s report con
Second, the Court disagrees with argument advanced by the defendant that expert reports are always required before a physician can express opinions as to causation, diagnosis, prognosis and the like. Dkt. No. 80 at 9-12. This appears to be the minority view.
See Sprague v. Liberty Mut. Ins. Co.,
This view also comports with Congress’s intentions in crafting the expert report requirement of Rule 26(a)(2)(B), which represents an attempt to balance “the fulsome and efficient disclosure of expert opinions” with a concern that reports should not be required in all situations.
Watson,
Here, Dr. Smith’s declaration closely tracks the opinions set forth in his April 2005 report and are not based on information other than that which he gained in preparing that report over two years prior to the litigation in this case.
Compare
Dkt. No. 76 at 2-3, ¶¶ 3-6 (Smith Decl. of April 2008),
with id.
Ex. 1 at 7, ¶¶ 1-7 (Smith Report of April 2005). Dr. Smith’s declaration does not venture far beyond what he observed and concluded in 2005 and why he did so, does not go beyond his personal involvement in the facts predating this case, and does not constitute an opinion formed
because of
this lawsuit.
Krischel,
Under these circumstances, Dr. Smith’s declaration falls outside of the disclosure requirements of Rule 26(a)(2)(B), and will be considered by the Court in ruling on defendant’s motion for summary judgment. Defendant’s Motion to Strike is therefore denied.
B. Defendant’s Motion for Summary Judgment
Ferro requests that summary judgment be granted forthwith on each of plaintiffs’ claims because (1) there is no evidence that Mr. Headley was ever “overexposed” to any respirable crystalline silica particles from a Ferro product; (2) even assuming such overexposure occurred, plaintiffs cannot show that the overexposure was a “substantial factor” in causing Mr. Headley’s alleged disease; and (3) any alleged failure to warn on Ferro’s part was not a proximate cause of plaintiffs’ damages. Ferro further contends, in a footnote, that because no evidence exists regarding any unreasonably safe product design, misrepresentation or breach of warranty by Ferro, summary judgment should be entered on those claims as well.
1. Summary Judgment is Not Proper on the Issues of Exposure and Substantial Factor
Ferro claims that because there is no direct evidence that Mr. Headley was ever “overexposed” to any respirable crystalline silica particles from a Ferro product, summary judgment should be granted for Ferro on plaintiffs’ negligence claims. Dkt. No. 62 at 2, 11-14 (citing
Lockwood v. AC & S, Inc.,
This, however, is not the law. The word “overexposure” appears nowhere in the
Lockwood
decision. In that case, the Washington Supreme Court determined that some evidence of “exposure,” not overexposure, was necessary to establish a finding of proximate causation.
Lockwood,
If such evidence was sufficient for
a finding
of proximate causation in
Lockwood,
then clearly plaintiffs’ evidence is sufficient to create a genuine issue of material fact on causation here. The parties do not dispute that the Ferro product in question (containing approximately 10% crystalline silica) was sold to A.O. Smith and used routinely by Mr. Headley while mixing and spraying the enamel mixture in a water heater tank coating area from at least 1976 to 1993.
See, e.g.,
Dkt. No. 66 at 6 n. 5 (defendant’s brief);
see also id.
at 8 (noting that such exposure,
inter alia,
continued “during the entire length of [Mr. Headley’s] employment at A.O. Smith.”). This spraying was commonly performed in small makeshift spray booths or inside larger tanks Mr. Headley would have to climb inside of to spray. Dkt. No. 76, Ex. 1 at 2 (Dr. Smith Report). There also appears to be no dispute, or at minimum an issue of material fact, that Mr. Headley was subject to “rebound particles” of crystalline silica — or particles that struck the tank surface but did not adhere — created through the use of Ferro’s product when Mr. Headley sanded the sprayed tank vessels and cleaned his work areas.
See, e.g.,
Dkt. No. 77 at 2-3, ¶ 4 (Dr. Rose Decl.). Finally, the report and declaration of Dr. Smith establishes that Mr. Headley’s silicosis was caused by the cumulative effect of all his exposure to crystalline silica during the twenty-year latency period.
See
Dkt. No. 76 at 2-3, ¶¶ 3-6 (Smith Decl. of April 2008),
and id.
Ex. 1 at 7, ¶¶ 1-7 (Smith Report of April 2005);
see also
Dkt. No. 79, Ex. 3 at 70-71 (Firestone Dep.) (similar). A strikingly similar expert opinion on the cumulative effect of a manufacturer’s asbestos product resulted in a prima facie case of proximate causation against the manufacturer in Lockwood.
See Lockwood,
Such evidence, when coupled with the conclusions by plaintiffs’ additional experts, also establishes a genuine issue of material fact that Mr. Headley’s exposure to Ferro’s crystalline silica-containing product constituted a “substantial factor” in causing his silicosis.
See Mavroudis v. Pittsburgh-Coming Corp.,
In an attempt to avoid this conclusion, Ferro makes two broad arguments: (1) that any exposure Mr. Headley may have had to a Ferro product “would not rise to the level of a ‘substantial factor’ ... when it is clear that Headley was also exposed to silica-containing products manufactured by
Both contentions fail. The first argument underscores exactly the kind of situation that calls for application of the substantial factor test, in order that no supplier enjoy a proximate causation defense on the ground that Mr. Headley likely would have suffered the same disease from inhaling crystalline silica originating from the products of other suppliers during the relevant time period.
See Mavroudis,
The Court also disagrees with Ferro’s second argument. While Ferro is correct that no industrial hygiene surveys were conducted at A.O. Smith from 1976 through 1993, the record contains studies and other data which allow industrial hygiene experts to estimate exposure for the time period in question in this case. In March 2000, an industrial hygiene consultant, Schumacher & Associates, conducted a survey of A.O. Smith’s Renton facility (where Mr. Headley worked) and issued a comprehensive report (the “Schumacher Report”). See Dkt. No. 67, Ex. 8. These measurements were taken when Mr. Headley was using a porcelain enamel mixture containing approximately 20% crystalline silica manufactured by A.O. Smith. See id. Ex. 9 at 149 (Firestone Decl. Addendum); Dkt. No. 66 at 14, n. 12.
For purposes of this motion, Ferro does not dispute that Mr. Headley performed the same job in 2000 that he did in earlier years, and plaintiffs have further provided evidence of the similarity between the Seattle and Renton plants regarding such things as the overspray cloud common to Mr. Headley’s daily spraying routine.
See, e.g.,
Dkt. No. 79, Ex. 3 at 11-13, 16 (Dr. Firestone Dep.).
7
To make conclusions re
Not only is there expert testimony in the record supporting this methodology as commonplace in the industrial hygiene profession, see Dkt. No. 79, Ex. 2 at 162-63 (Rose Dep.), but defendant’s own expert used this analysis to conclude, favorable to the defendant, that Mr. Headley’s 1976-1995 exposure to the Ferro product was within normal limits and thus not a substantial factor in causing his silicosis. See Dkt. No. 64 at 7, fh (Dr. Rock Decl.) calculating much lower level of exposure “while spraying the Ferro product,” (i.e., between 0.017 mg/m3 and 0.081 mg/m3). Defendant’s expert concluded that such “reasoning by analogy with breathing zone data collected in a different facility while Headley was spraying with a different product supports the hypothesis that his time weighted average exposures during his use of the Ferro product did not exceed the more conservative [TLV] or the even more conservative [recommended exposure limit].” Id. at 2; but see Dkt. No. 77 at 2-3 (Dr. Rose Decl.) (attacking Dr. Rock’s conclusions). The unsurprising fact that Dr. Rock came to a different conclusion than that of plaintiffs’ experts is of no moment for summary judgment purposes. More probative at this juncture is Dr. Rock’s willingness to engage in the same expert methodology to analyze and quantify Mr. Headley’s exposure to Ferro’s silica-containing product.
In sum, this evidence, when viewed in a light most favorable to the plaintiffs, establishes genuine issues for trial on the issue of whether Mr. Headley’s exposure to Ferro’s product was a substantial factor in causing his silicosis. As a result, proximate cause becomes a jury question unless there is no genuine issue of material fact that certain conduct by A.O. Smith constitutes a superceding cause.
See Sharbono v. Universal Underwriters Ins. Co.,
2. Genuine Issues of Material Fact Exists as to Ferro’s Failure to Warn and/or Inadequate Warnings
Washington’s product liability statute provides that “[a] product manufacturer is subject to liability to a claimant if the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed.” R.C.W. § 7.72.030(1). A product is “not reasonably safe” if it lacks adequate warnings.
Id.
§ 7.72.030(l)(b). To succeed on such a claim, “the plaintiff must prove that his ... injuries were proximately caused by [the] product” alleged to be unsafe.
Soproni v. Polygon Apt. Partners,
The Court rejects both arguments. First, genuine issues of material fact abound regarding whether A.O. Smith and Mr. Headley did heed Ferro’s warnings and would have heeded additional, more adequate warnings had they been provided by Ferro. The 1985 material safety data sheets (“MSDSs”) referenced by Ferro mentioned the existence, effects, and consequences of “silicate dust.” Dkt. No. 79, Ex. 13 at 202 (Nov. 13, 1985 MSDS). The far more harmful product of crystalline silica was never mentioned. Plaintiffs’ expert, Dr. Rose, has offered detailed explanations as to the deficiencies in and misleading nature of this and other of Ferro’s MSDSs in the 1980s as well as the warning label affixed to its product bags during the 1970s and 1990s. Dkt. No. 79, Ex. 6 at 6-11 (Dr. Rose Report); see also id. Ex. 3 at 3-6 (Dr. Karnes Report) (similar).
Ferro does not attack these opinions, but instead contends that this evidence is irrelevant because it is undisputed that “no one from A.O. Smith read or relied on Ferro’s MSDS while Ferro’s product was in use.” Dkt. No. 80 at 5 n. 7. Contrary to Ferro’s contention, however, there is evidence in the record that certain of these MSDS sheets were read, considered and acted upon by A.O. Smith and Mr. Headley. One such example involves a November 1985 MSDS which stated that Ferro’s Product Number 2772-2 did not contain cobalt. See Dkt. No. 79, Ex. 7. Four years later, on July 26, 1989, Ferro sent A.O. Smith an MSDS indicating that this product did contain cobalt. See id. Ex. 8 at 5. Less than one month later, due to concerns raised by A.O. Smith and certain of its employees, the company sent several of its Seattle-based employees to Dr. John Holland at Virginia Mason Hospital to conduct laboratory work and quantitative analysis for “possible overexposure to cobalt at your workplace, A.O. Smith.” Id. Ex. 9. (Dr. Holland Letter of Oct. 26, 1989). Mr. Headley was one of these employees. See id. (letter to Mr. Headley regarding results of his examination), and Ex. 10 at 54-55 (Hunt Dep.) (stating, as A.O. Smith Seattle supervisor, that a discussion of the MSDS is what led to the cobalt concerns and subsequent laboratory testing).
Furthermore, defendant’s argument regarding statements made in Mr. Headley’s deposition testimony and subsequent declaration does not resolve what is otherwise a genuine issue of material fact on whether Mr. Headley would have heeded any additional warnings. The same materials, which must be viewed in a light most favorable to the plaintiffs, establish Mr. Headley’s understanding from Ferro’s warnings
8
that “I should wear my dust mask or respirator when I was spraying or being around a lot of the dust so I wouldn’t breathe it in,” Dkt. No. 67, Ex. 2 at 209-10, and include the statements of Mr. Headley’s supervisor that he never saw Mr. Headley spray without a mask or respirator and regarded him as “one of the more careful guys that I’ve ever had in that area.”
Id.
Ex. 10 at 34-35 (Hunt.
3. Summary Judgment Is Improper on the Sophisticated User Doctrine and the Issue of Superceding Cause
Ferro’s second causation argument attempts to shift the burden of warning those exposed to silica to A.O. Smith, which it contends failed miserably in this role by neglecting to properly train, supervise, and care for its employees.
See
Dkt. No. 66 at 19-22. As a matter of law, Ferro argues that the “Sophisticated User Doctrine” provides that a manufacturer “has no duty to warn users when it supplies its product to a user who knows or reasonably should know of a product’s dangers.” Dkt. No. 66 at 19 n. 17 (citing
Humble Sand & Gravel, Inc. v. Gomez,
Ferro has not cited, and this Court cannot find, a single Washington case adopting or applying the Sophisticated User Doctrine. During oral argument in this matter, counsel for Ferro conceded that the doctrine has not been formally adopted by any Washington court.
10
As a
In
Campbell v. ITE Imperial Corporation,
The manufacturer bears responsibility for affixing an adequate warning to its product, see Teagle v. Fischer & Porter Co.,89 Wash.2d 149 , 155,570 P.2d 438 (1977), and this duty generally is not delegable. Minert v. Harsco Corp.,26 Wash.App. 867 , 874,614 P.2d 686 (1980). Thus, it would be anomalous to hold that an employer’s failure to warn constituted a superseding cause.
Id.
at 814,
The court concluded its analysis with the following substantive outline, applicable to both negligence and strict products liability theories:
In sum, we hold that an employer’s failure to warn or protect an employee from a product which is unreasonably unsafe, unless accompanied by a warning, does not constitute a superseding cause, unless (1) the employer’s intervening negligence created a different type of harm; or (2) the employer’s intervening negligence operated independently of the danger created by the manufacturer; or (3) the employer had actual, specific knowledge that the product was unreasonably unsafe and failed to warn or protect. Because there is no such evidence in the record of this case, the trial court erred in giving a superseding cause instruction.
Id.
at 817,
In the present case, no evidence or argument has been presented that Mr. Headley’s injury was not foreseeable to Ferro, or that his injury was produced by a different type of harm or operated independently from the danger created by his various repetitive exposures to Ferro’s silica-containing product. Furthermore, the final element discussed in
Campbell,
the employer’s knowledge and failure to act, cannot be decided on summary judgment
4. Summary Judgment is Proper on Plaintiffs’ Misrepresentation Claim
Ferro has also moved for summary adjudication on plaintiffs’ misrepresentation claim. Dkt. No. 66 at 22 n. 21. Plaintiffs have not opposed this motion and indeed conceded this issue during oral argument in this matter. Accordingly, defendant’s motion for summary judgment is granted with regard this claim.
5. Further Briefing is Directed on Plaintiffs’ Defective and Negligent Design and Breach of Warranty Claims
Ferro moved for summary judgment on these claims in a footnote. Dkt. No. 66 at 22 n. 21. Plaintiffs responded with three paragraphs that reference one statement and two deposition words by plaintiffs’ expert, Dr. Clifton Bergeron. Dkt. No. 75 at 28. Ferro’s reply concludes that plaintiffs have failed to establish a defective, design claim under either the risk-utility test or the consumer expectations test. Dkt. No. 80 at 8.
The state of the record does not permit the Court to rule on these issues at this time. The arguments of the parties, as well as the attached snippets of Dr. Bergeron’s deposition and declaration, do not provide the Court with sufficient information to determine the applicability of the risk-utility or consumer expectations test and prevent the Court from applying Dr. Bergeron’s conclusions to the facts in this case. Moreover, it is not clear from the limited material that was submitted whether Dr. Bergeron knows the A.O. Smith product line, or whether Dr. Bergeron was aware that the A.O. Smith product line included silica-containing products.
Accordingly, the parties are DIRECTED to file briefs addressing these issues not longer than ten (10) pages in length by not later than Wednesday, May 28, 2008. Any limited additional portions of Dr. Bergeron’s deposition testimony necessary to establish a foundation can be submitted as an appendix that will not be included as part of the page limitations. No opposition briefs shall be submitted. This briefing should also indicate whether plaintiffs’ claims for breach of warranty and other unaddressed claims remain in this case. See Dkt. No. 66 at 22 n. 21.
VII. CONCLUSION
For the foregoing reasons, defendant Ferro Corporation’s Motion to Strike (Dkt. No. 81) is DENIED, and its Motion for Summary Judgment (Dkt. Nos. 62, 66) is GRANTED IN PART AND DENIED IN PART, for the reasons stated by the Court. Further briefing is also directed as indicated by the Court. The Clerk of Court is directed to send a copy of this Order to the parties of record.
Notes
. Silicosis is a progressive and incurable disease of the lungs caused by the prolonged inhalation of small respirable particles of crystalline silica. Dkt. No. 67, Ex. 18 at 245 (Dr. Roberts Report). "Silicosis is similar to asbestosis and asbestos-related injuries.”
Riverwood Intern. Corp. v. Employers Ins. of Wausau,
. A.O. Smith purchased Mr. Headley's initial employer, National Steel, in 1977 and operated it at the Seattle location until 1996 or 1997, when the operation moved to Renton. After purchase by A.O. Smith and the subsequent move, Mr. Headley's job remained the same — he continued to work as a porcelain enamel sprayer. Dkt. No. 63, Ex. 3.
. Even assuming, for the sake of argument, that plaintiffs’ disclosure of Dr. Smith was belated under Rule 37, the foregoing facts establish that such disclosure was harmless due to defendant’s knowledge of Dr. Smith. See also infra, n. 4.
. In addition, the plaintiffs have submitted the expert opinions of Dr. Jordan A. Firestone, who also discussed latency periods of silicosis, thus the defendant can hardly claim surprise about latency testimony. See Dkt. No. 79, Ex. 3 (Firestone Dep.).
. The "substantial factor” test for causation is used when an asbestos or similarly situated plaintiff is unable to show that one event alone was a cause of the injury.
Mavroudis,
. This argument was extended by defendant’s counsel during oral argument in this case, wherein counsel concluded, in answer to the Court’s questioning, that if an employer such as A.O. Smith fails to perform an industrial hygiene survey, no employee plaintiff could ever recover under the substantial factor test.
. Indeed, Dr. Firestone opines that Mr. Headley’s exposure to silica was
higher
in Seattle than it was in Renton, where he began wear
. According to the plaintiffs, this warning stated: “Caution, this product may contain siliceous or toxic material, for manufacturing use only, do not make dust, inhale dust, fumes or vapors, permit prolonged contact with skin, permit to contaminate food or feed-stuff.” Dkt. No. 79, Ex. 11 at 67-68 (Faust Dep.).
. A defendant's conduct is not a proximate cause of the harm if, although it otherwise might have been a proximate cause, a superseding cause intervenes. A superseding cause is "an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.”
Restatement (Second) of Torts
§ 440 (1965);
Campbell v. ITE Imperial Corp.,
. Counsel for Ferro also analogizes this doctrine to the "learned intermediary rule”