This matter is before the court on the defendants’ motions for summary judgment, Filing Nos. 187, 190, and 198, and motions for hearings thereon, Filing Nos. 188,192, and 200. The court finds there is no need for a hearing or oral argument on the motions for summary judgment, and the motions for a hearing will be denied. This is a wrongful death products liability action based on exposure to chemicals. In their Fourth Amended Complaint, plaintiffs assert negligence and strict liability claims for defective design and failure to warn, breach of implied warranty, failure to utilize a reasonable alternative under section 2(B) of the Restatement (Third) of Torts, and negligent failure to warn. The plaintiffs’ dеcedents were all employees of Goodyear Tire & Rubber Co. (“Goodyear”) in Lincoln, Nebraska. The plaintiffs allege their decedents sustained injuries, including contracting the disease Acute Myelogenous Leukemia (“AML”), by exposure to solvents containing benzene. Defendants Barton Solvents, Chevron U.S.A. Inc., Cit-go Petroleum Corporation, Shell Chemical, L.P., d/b/a Shell Chemical Company, Shell Oil Company, and Union Oil Company of California, d/b/a Unocal Corporation, sold products containing benzene to Goodyear.
Defendant Citgo Petroleum Corporation (“Citgo”) asserts that it cannot be liable for any alleged exposure that took place prior to March 18, 1983, because it did not exist until then and is not the successor to any prior entity. It also asserts that it cannot be liable for the claims of Melvin Vondra, who retired in 1994 and Patricia Meyers, who retired in 1995, because they cannot establish that they were ever exposed to a Citgo product.
All of the defendants contend that they did not, as a matter of law, owe a duty to warn of an unreasonably dangerous product because Goodyear was a “sophisticated user” of the products. They also argue that they are entitled to summаry judgment on the plaintiffs’ strict liability and implied warranty claims because they did not sell or distribute any “unreasonably dangerous” products to Goodyear or fail to adopt a reasonable alternative design. Further, the defendants argue that there is no evidence to establish proximate causation, an essential element of the plaintiffs’ claims.
I. BACKGROUND
The parties have submitted voluminous evidence in support of their respective positions. See Filing Nos. 193, 194, 195, 196, 197, 198, 202, 208, 209, & 210, Indices of Evidence (“Evid.”). In their respective briefs, the parties agree to many undisputed facts. See Filing Nos. 191, 199, 206, 214, & 215, Briefs. The following facts are gleaned from the parties’ statements of undisputed facts. Essentially, the parties agree that the plaintiffs’ decedents, Melvin Vondra, Duane Ilg and Patricia Meyers, contracted and died of Acute Myelogenous Leukemia (“AML”). Goodyear Lincoln is a rubber products facility that manufactures V-belts for use in a wide range of mechanical operations. Duane Ilg worked at Goodyear from 1984 until he officially retired in January 2006. Patricia Meyers worked at Goodyear Lincoln from July 1965 to July 1995. She officially retired in August 1995. Melvin Vondra began to work at Goodyear in 1968 and retired in 1994.
There is no dispute that Goodyear has been a lоngtime member of the National Safety Council and was aware, beginning in 1926, that dangers were associated with industrial uses of benzene. In a 1926 report, the National Safety Council Committee warned that there was a danger of chronic benzene poisoning arising from prolonged or repeated exposure to ben
In 1969, Goodyear, other tire manufacturers, and employee Unions entered into a joint venture, known as the Joint Occupational Health Program (“JOHP”) to evaluate the potential health hazards of occupational exposure to chemicals and solvents in rubber-industry workers. The University of North Carolina School of Public Health conducted several studies as part of the program. Goodyear’s local union in Lincoln, Nebraska, Local 286 of the United Rubber, Cork, Linoleum and Plastic Workers of America (“URW”), participated in the program.
In 1974, the National Institute for Occupational Safety and Health (“NIOSH”), in a published report entitled “Criteria for a Recommended Standard, Occupational Exposure to Benzene,” recommended that workers should not be exposed a concentration of benzene greater than 10 parts per million (ppm) parts of air, determined by a time-weighted average (“TWA”) exposure for up to a 10-hour workday and 40-hour workweek.
Louis Beliczky, a certified industrial hygienist employed by the URW, was a review consultant for that report. At least as early as 1975, following a site visit by Mr. Beliczky, Goodyear was aware that workers at Goodyear’s Lincoln, Nebraska plant (“Goodyear Lincoln”) were coming into direct contact with chemicals that might be carcinogenic and was advised of inadequate ventilation at the plant. Mr. Beliczky authored a report based upon that visit. Attached to the Beliczky report was an epidemiological study about solvent exposure and leukemia among rubber workers. The president of Local Union 286 received a copy of the report.
In 1976, after a walk-through of a Goodyear division for an epidemiologic evaluation of mortality patterns among employees using benzene, the National Institute for Occupational Safety and Health (“NIOSH”) reported that Goodyear performed monthly white blood and hemoglobin counts of certain employees exposed to benzene and removed employees who exhibited decreased white blood cell counts from areas where they could be exposed. NIOSH recommended that “[ejxposure to benzene should be controlled so that no worker will be exposed to benzene in excess of 1 ppm as determined by an air sample collected at onе liter/minute for two hours.” The president of Local 286 was forwarded the Occupational Health Studies News Letter from the University of North Carolina on studies involving leukemia and other blood related diseases and deaths associated with Goodyear’s Pliofilm operations. In 1977, NIOSH reported on the deaths ,of"Goodyear Pliofilm workers and its report showed a significantly increased risk of AML among Goodyear Pliofilm workers exposed to benzene.
At least by 1977, Goodyear purchased more than twenty (20) types of petroleum-derived solvents for use in the manufacture of tires, belts, hose sealants, cements, adhesives and numerous other products. It purchased these solvents primarily in bulk quantities. Goodyear assigned codes to the solvents and did not identify them by name./-'It used its own internal code namgs for identifying the rubber solvents u^d in its plants. At that time, OSHA estimated that 60,000 facilities with over 400,000 workers were engaged in industrial operations using liquid mixtures containing 1% or less benzene by volume.
In 1977, NIOSH published a report entitled “Criteria for a Recommended Standard, Occupational Exposure to Refined Petroleum Solvents,” which provided “that workers shall not be exposed to rubber solvents containing benzene at a concentration greater than a TWA concentration of 200 milligrams per cubic meter of air for up to a 10 hour work shift and a 40 hour week.” All Goodyear local union presidents received a JOHP study entitled “An Epidemiological Study of Leukemia Among Rubber and Tire Industry Workers,” which correlated benzene exposures in rubber plant workers with an apparent increased association with leukemia. As part of Goodyear’s participation in JOHP, Goodyear’s director of occupational health received copies of University of North Carolina reports on benzene exposure, leukemia and mortality rates. Pamphlets and newsletters that discussed practices for minimizing exposure to Benzene were disseminated to the participants in the JOHP studies.
In 1978, Goodyear was the world’s largest tire company with 1977 sales of 6.6 billion dollars, and the 22nd largest manufacturing company in the United States, with the tenth largest number of worldwide employees. The evidence includes the testimony of several Goodyear occupational health managers at OSHA’s 1978 Benzene Standard rulemaking process. In that testimony, Goodyear representatives stated that its information indicated that petroleum solvents suitable for tire building contain from .11 to .63 percent benzene. Goodyear management authored a training manual about benzene safety in 1978.
In 1983, in response to OSHA’s request for information on strategies for controlling the level of benzene in the workplace, a Goodyear safety manager recommended that the control strategy for further reducing exposure to benzene be left to the employer. OSHA published its Final Rule on Occupational Exposure to Benzene in 1987, reducing the permissible exposure level to 1 part benzene per million parts of air, based upon an 8-hour time weighted average. See 29 C.F.R. Part 1910.
In opposition to the motion, the plaintiffs have presented evidence that shows that, although the URW International Union may have received information about benzene dangers and a safety training manual, there is no evidence that it was distributed to Union members. The plaintiffs presented evidence that shows that Goodyеar’s employees at the Lincoln plant were not familiar with a training program, entitled
Health Training for Working with Benzene,
allegedly implemented in 1978. There is no evidence that occupational health instructors taught any or all of the seven lesson modules of
Health Training for Working with Benzene.
Plaintiff William Meyers, personal representative for the estate of his late wife, Patricia Meyers,
Further, plaintiffs presented evidence that their decedents and other Goodyear employees had not been provided or used air filtering or monitoring devices. Patricia Meyers testified that she was not offered gloves to wear until the last few years of her employment and that she did not participate in the personal air monitoring program. The evidence shows that the plaintiffs’ decedents’ blood was not tested until they had worked for Goodyear for many years and tested only sporadically.
Plaintiffs also presented evidence that the only safe concentration of Benzene is zero and that defendants knew how to reduce the conсentration of benzene-containing solvents to nearly zero by 1950. The defendants dispute that evidence. There is also evidence that the defendants would not supply Goodyear with benzene-free solvent. The parties disagree with respect to the significance of the evidence.
Defendant Citgo presented evidence that it did not manufacture, distribute, or sell any of the products alleged to have harmed plaintiffs’ decedents Melvin Vondra or Patricia Meyers until May 1, 1997, after Vondra and Meyers had retired. The plaintiffs do not challenge that evidence.
II. DISCUSSION
A. Law
Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
Harder v. ACandS, Inc.,
In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party.
Id.
“In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations.”
Kenney v. Swift Transp., Inc.,
Under Nebraska law, a breach of implied-warranty claim (under contract law) is merged with a product liability claim for defective product design and failure to warn.
Freeman v. Hoffman-La Roche, Inc.,
“Unreasonably dangerous” means that a product has a propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with the ordinary knowledge common to the foreseeable class of users as to its characteristics.
Krajewski,
Comment k to 402A of the Restatement (Second) of Torts, provides an exception from strict liability when a product is deemed “unavoidably unsafe.” Restatement (Second) of Torts, § 402A, cmt. k (referring to prescription drugs). In Nebraska, that exception does not provide a blanket immunity from strict liability, but must be applied on a case-by-case basis as an affirmative defense.
Freeman,
With respect to “Chattel Known to be Dangerous for Intended Use,” the Restatement (Second) of Torts 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 in the vicinity of its probable use, for bodily 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 from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;
(b) and 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 so.
Restatement (Second) of Torts § 388 (1965). The “sophisticated user” defense has its genesis in subsection (b) of Section 388, which has been interpreted in Nebras
In addition to limiting a supplier’s duty, the “sophisticated user” concept also affects the element of proximate cause.
Crook v. Kaneb Pipe Line Operating P’ship, L.P.,
The sophisticated user defense is an analog to the “learned intermediary” defense as described in § 6(d) of the Restatement (Third) of Products Liability.
See, e.g., Freeman,
In certain situations, a bulk supplier may discharge his duty to warn by giving warnings to a third person, an intermediary.
See
Restatement (Second) of Torts § 388, comment n. The Restatement focuses on the conduct of the supplier of the dangerous product, not on the conduct of the intermediary, and requires that the conduct be reasonable.
O’Neal v. Celanese Corp.,
The finder of fact must consider a variety of factors in order to determine
(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 рroduct; (5) the magnitude of the risk involved; and (6) the burdens imposed on the supplier by requiring that he directly warn all users.
Eagle-Picher Industries, Inc. v. Balbos,
B. Analysis
The defendants argue that the uncontroverted evidence that Goodyear was knowledgeable concerning the dangers of benzene and that the defendants, as suppliers, had no duty to warn the ultimate users of the dangers. Defendants’ arguments are an amalgam of the “sophisticated user,” “bulk supplier,” and “learned intermediary” defenses. The parties contend that resolution of this issue requires the court to determine whether Nebraska courts have adopted, or are likely to adopt this defense or defenses. The court finds, however, that it need not make that determination because even if such a defense is available in Nebraska, the defendants have not presented evidence that shows, as a matter of law, that they are еntitled to the defense. At this point in the litigation, the defendants have not shown that any combination of these theories would shield them from liability. All of these defenses require a defendant to show that reliance on a third party to warn ultimate users of a product’s dangers is reasonable. The evidence does not establish reasonable reliance.
In order to be absolved of liability, defendants must not only show that they took reasonable steps to warn end-users of the dangers associated with benzene through their intermediary, but that it was reasonable for them to rely on the intermediary to impart the warnings. The evidence presented to the court does not establish either of these facts. Although defendants have shown that Goodyear had some level of knowledge and awareness of the dangers associated with benzene, they have not shown that it was reasonable for the defendants to rely on Goodyear to convey the appropriate warnings to its employees, who were foreseeable end-users of the products. There has been no showing that the defendants actually apprised Goodyear of the dangers, that Goodyear fully appreciated those dangers, or that they acted in a manner reasonably calculated to ensure that the necessary information would be passed on to the ultimate handlers of the products. Defendants have not shown that they attempted to ascertain the extent to which Goodyear was disseminating information about the dangers of the product.
The court finds there are genuine issues with respect to numerous material facts. The evidence regarding the nature and extent of the defendants’ knowledge of the danger, Goodyear’s knowledge of the danger, and the plaintiffs’ decedents’
There are also genuine issues of material fact with respect to the plaintiffs’ decedents’ exposure to the chemical. Although the defеndants presented evidence that Goodyear trained its employees on the safe handling of benzene, there is a conflict in the testimony with respect to whether such training was actually provided to these decedents. The evidence is also inconclusive with respect to whether or to what extent the plaintiffs’ decedents were informed of the dangers by the unions. Viewing the evidence in the light most favorable to plaintiffs, defendants have not shown that they are entitled to judgment as a matter of law by reason of the “sophisticated user” defense.
Defendant Citgo, however, has presented evidence that shows that it is not liable to the personal representatives of the estates of Melvin Vondra and Patricia Meyers because it did not supply the allegedly harmful products to Goodyear while Vondra and Meyers worked at the Goodyear Lincoln plant. The plaintiffs do not dispute defendant Citgo’s contentions. Accordingly, the court finds that defendant Citgo’s motion for summary judgment should be granted with respect to the claims of plaintiffs Caryl Vondra, Personal Representative of the Estate of Melvin Vondra, and William Meyers, Personal Representative of the Estate of Patricia Meyеrs.
IT IS ORDERED:
1. Defendant Barton Solvents motion for summary judgment (Filing No. 187) is denied.
2. Defendants Shell Oil Company, Shell Chemical LP, Union Oil Company of California and Chevron U.S.A. Inc.’s motion for summary judgment (Filing No. 190) is denied.
3. Defendant Citgo Petroleum Corporation’s motion for summary judgment (Filing No. 198) is granted in part; the claims of Caryl Vondra, Personal Representative of the Estate of Melvin Vondra, against defendant Citgo Petroleum Corporation are dismissed; the claims of William Meyers, Personal Representative of the Estate of Patricia Meyers, against Citgo Petroleum Corporation are dismissed; defendant Citgo Petroleum Corporation’s motion for summary judgment is denied in all other respects.
4. Defendants’ motions for hearings (Filing Nos. 188, 192, and 200) are denied.