|
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| - metal foundry work | - sand blasting |
| - granite quarry mining | - taconite mining |
| - grinding machine operation | - furnace/kiln operation |
| - masonry/sheetrock construction | - concrete road repair work |
| - pottery making | - medical/dental labs |
The National Institute for Occupational Safety and Health (NIOSH) has estimated that two million workers are potentially exposed annually to respirable crystalline silica in the United States, with over 100,000 exposed to dangerous levels in occupational environments [5]. If dust suppression systems and respiratory protection devices have not been made available to protect workers on the job, silica-related illnesses may result.
A Primer on Silica Medicine
Silicosis is defined as a nodular pulmonary fibrosis,[6] or scarring of the lungs. It is caused by the inhalation and deposition of respirable crystalline silica particles in the lung tissue over time.[7] Presence of the silica particles somehow triggers a biochemical reaction within the lung tissue that leads to fibrosis. The scarring reduces the ability of the lungs to exchange gases, and symptoms of shortness of breath, cough, wheezing and various chest illnesses result.[8] Some studies show that the scarring progresses after the patient is removed from the dusty conditions.[9] In severe cases, the disease can progress to cardiopulmonary impairment and cardiac failure.[10] In addition, silica is known to cause an increased risk of developing tuberculosis,[11] scleroderma, and perhaps even cancer. Why crystalline silica can be productive of pulmonary disease, while other industrial dusts of comparable size do not, remains the subject of research.[12] Once silicosis is established, it cannot be cured, nor can it be effectively treated.[13]
The Silicosis/Lung Cancer Causation Dispute
An issue of profound medical and legal significance in silica litigation is whether silicosis causes lung cancer. Strong arguments can be made on both sides of the issue. In 1987, the International Agency for Research on Cancer ("IARC") concluded that although sufficient evidence of a silicosis/lung cancer link existed with laboratory animals, the evidence was not sufficient with humans. Ten years later, in a split vote, IARC changed its view and reported that crystalline silica was carcinogenic to humans. This change unleashed a flurry of competing commentary in the medical literature.[14] Arguments against the association are that a low prevalence of neoplastic changes in the largest series of silicotic patients at autopsy exists, combined with negative experimental findings.[15] Those in favor of the association point to case descriptions at individual autopsies, and other studies showing an elevated presence of lung tumors among silicotics.[16] The dispute continues to challenge researchers.[17]
The lung cancer causation issue is highly complicated because the studies involved raise questions as to whether other chronic pulmonary diseases prevalent among silica-exposed workers play an independent role in cancer causation, whether cancer increases merely reflect overloading of the lungs' clearing mechanism by dusts in general, whether the common history of tobacco smoking is the true source of disease, whether a confounding effect of patient exposure to lung carcinogens other than tobacco is involved, whether studies involving silicotics seeking compensation skew the results (i.e., study bias), whether any particular patient has silicosis in view of reader and film quality variability in chest x-ray evaluation, whether variations in exposure intensity and duration affect results, and whether rats are an appropriate model for assessing human carcinogens.[18]
In the end, this issue will be the subject of deliberations by the judge on an in limine motion to exclude testimony on the subject of cancer, or deliberations by the jury on whether the cancer causation/increased risk claim has been made by the applicable burden of proof.
Gist of the Plaintiff's Products Liability Claim
It has long been known by knowledgeable observers that inhalation of substantial quantities of silica is hazardous to health.[19] Following the industrial revolution, medical researchers focused more closely on silica-related disease. Sand blasters were particularly affected in view of their massive exposure to respirable silica from the sand.[20] The United Kingdom reacted quickly to the research, and banned the use of silica sand in sand blasting in 1949.[21] The regulatory response of the United States lagged behind.
Plaintiffs' counsel claim that the American reaction to silica-related occupational disease was delayed through efforts of the industrial sand industry, and that this delay caused disease that should have been prevented. They compare alleged industry knowledge with the times at which suppliers commenced publication of warnings. The first warnings did not begin to first appear on silica products until 1977. To make this comparison plaintiffs' counsel target the workings of the industry group, the National Industrial Sand Association ("NISA"). In 1955, the Industrial Hygiene Foundation of America was commissioned by NISA to study silicosis prevention programs. Its report[22] discusses in detail management policies essential to control silica dust exposures.[23] Plaintiffs' counsel contend that this and other NISA documents[24] demonstrate that the industry failed to heed the message of threats posed by exposure to respirable silica.
Plaintiffs' counsel may also be expected to challenge silica defendants by reference to the work of the Silica Safety Association ("SSA"). They claim that SSA was created by members of the industry not only to monitor safety developments, but also to shield the industry from legal and legislative actions. SSA documents dated 1978 and 1983 refer to the association's concern about silicosis "legal suits" affecting the industry, its success in preventing the banning of sand blasting using silica sand, and its success in keeping OSHA from requiring expensive medical monitoring rules.[25]
As well, the federal government in 1974 proposed criteria for a recommended standard for occupational exposure to crystalline silica.[26] In addition to proposing a time-weighted average for exposure to concentrated free silica, the report recommended specific product label and workplace warnings. Also in that year the government described silica sand as "a highly toxic material," at least in regard to sandblasting.[27]
Plaintiffs' counsel therefore apply the familiar framework for claims presentation in which medical and silica industry knowledge of health effects is compared to supplier response to the same by way of warning policy and employer alerts. It is then argued that the alleged delays involved caused pulmonary disease because safety procedures were not employed soon enough.
Gist of the Suppliers' Defense
Suppliers counter plaintiffs' arguments by raising multiple defenses designed to support the industry's response, to shift the focus to others, and to challenge exaggerated medical claims. Defendant members of NISA and SSA seek to counteract plaintiff's spin regarding the workings of these groups, by offering evidence that science-based safety and reasonable regulation were their legitimate aims.
Suppliers may offer state of the art and industrial hygiene expert testimony to deflect liability claims. State of the art experts may establish that suppliers did not expect workers employed in industries not involving massive exposures to silica dust to be at risk for development of disease. Distinctions will be drawn to contrast the heavy exposure that sandblasters, hard rock miners and others have faced, with the more modest exposure thresholds faced by those in plaintiff's occupation. Delayed recognition by scientists of risks facing lesser-exposed workers may excuse arguably tardy publication of warnings by suppliers. Industrial hygienists may be able to establish that the products in question complied with the Occupational Safety and Health Administration's ("OSHA") permissible exposure limit ("PEL"), the National Institute for Occupational Safety and Health's recommended exposure limit ("REL") and the American Conference of Governmental Industrial Hygienists' ("ACGIH") threshold limit value ("TLV").[28]
Focusing blame on the plaintiff's employer is a typical supplier defense. The argument contends that silicosis was a known risk of various employments,[29] that industrial consumers of silica were familiar with the need to maintain industrial hygiene in view of the risk,[30] and that employers inadequately disseminated supplier warnings of adverse health effects to employees. Poor housekeeping leading to dust prevalence in the plant, an inadequate history of making respiratory protection devices available to employees, and the absence of medical monitoring programs for employees,[31] support the supplier's argument that the plaintiff's employer failed to provide a safe place to work. The argument is bolstered by reference to state health and safety rules requiring employers to provide employees with personal protective equipment, and to limit employee exposure to "atmospheric contaminants" including silica.[32]
Individual defendants may also seek to shift the focus from their supply of silica-containing materials to plaintiff's work site. Proof of co-defendants' exposure is important not only to plaintiff's counsel, but also to defense counsel who must prepare for the contingency of co-defendant settlements, and who must ensure that the product supply of the primary suppliers to plaintiff's work site can be established. Comparative fault also is a supplier defense. Proof that plaintiff failed to follow the employer's respiratory protective device policy, continued to smoke in the face of warnings, and continued to encounter dusty conditions knowingly at job stations may convince a jury to find plaintiff to be causally negligent.
Absence of medical impairment in mild cases of silicosis is another supplier defense. Workers may demonstrate mild fibrosis on chest x-rays without any real physical impairment. Proof will be offered that with mere early nodular fibrosis, interference with the exchange of gases across the alveolar membrane does not occur, and lung elasticity is not lost.[33] The defense will thus contend that chest x-ray changes alone, without symptoms or disability, render the claim non-compensable.
Plaintiff's Strategic Litigation Considerations
Pretrial strategies employed by plaintiffs in silica litigation include the following considerations.
Target Defendants
Suppliers of bulk sand, finely ground silica "flour," bentonite,[34] grinding machine components, respirators and masks,[35] refractory (boiler/furnace combustion chamber) materials, and other products containing crystalline silica, are typical parties targeted for joinder. Manufacturers of industrial machinery lacking dust avoidance devices, and manufacturers and designers of allegedly faulty dust suppression/ventilation systems are also amenable to suit.
Medical Historian Retention
An early account recorded of the pathology of what is now called silicosis came in 1672 from a researcher who described how several stonecutters died of lung disease; at autopsy dissecting their lungs was described as "like cutting into a mass of sand."[36] Reports of the apparent connection between sand and pulmonary disease continued over the centuries. In 1936, Dr. E.R.A. Merewether reported on his study of silicosis risks in British occupational workers. He concluded that sand blasting, due to silicosis risks, "is essentially an extremely hazardous occupation." This was premised in part on the report that in some sand blasting chambers there may be 3.1 billion particles of airborne silica per cubic foot of air.[37] Plaintiff's counsel will seek to use this type of background material via credentialed experts to support the claim that the industry knew of silica health effects long before warnings were published.[38]
Fear/Risk of Cancer/Tuberculosis Preparation
Plaintiffs' counsel prepare cases to offer evidence of the silicotic's fear or risk of developing cancer or tuberculosis. Although the causal tie to the latter disease is well developed;[39] as shown above, good faith arguments exist on each side of the causation issue affecting the former disease. Therefore, the causation expert must be prepared not only to counter the defense cross examination before the jury on the contrary medical articles, but also to establish scientific reliability to persuade the trial judge to allow the opinions to get to the jury.
Failure to Warn Preparation
Inasmuch as silica is not manufactured or designed, failure to warn is the primary cause of action litigated in these cases.[40] Plaintiff's counsel must establish when each defendant warned of silica-related hazards. That evidence is then compared to the timing of governmental warning regulations. It is also compared to the timing of warning publication by the first member of the industry. Delays in warning publication, and challenges to the warning content, fuel arguments that defendants were negligent or are strictly liable for failure to warn. Plaintiff will argue warning adequacy is a jury question in Minnesota.[41]
Causation Preparation
Most silicosis claims involve several defendants because most silica-using plants obtain their products from many sources. Defendants, including "peripheral" defendants especially, may seek dismissal on the grounds that plaintiff cannot prove that any product defendant shipped to the plant released respirable silica that plaintiff inhaled. Defendants will cite those cases holding that plaintiff must show a causal link between the alleged defect in the defendant's product and the injury.[42] Plaintiffs' counsel therefore seek to present medical testimony linking each inhaled silica particle to the development of plaintiff's alleged disease.
Defendants' Strategic Litigation Considerations
Typical approaches to the defense by silica suppliers involve these considerations.
Employer Fault Proof
As noted above, defendants may be expected to focus blame on plaintiff's employers as a core defense strategy. Employers have the obligation to maintain a safe work place, and they can be charged with knowledge of the existence of product warnings,[43] Placing fault on the employer potentially reduces the balance of fault allocable to the remaining parties, giving defendants an opportunity to be found less at fault than plaintiff. Any employer member of silica industry groups, for example, the American Foundrymen's Society, can expect cross-examination on the content of the society's American Foundryman periodical that for decades has published silica health hazard articles.[44] Moreover, the employer no doubt also received Material Safety Data Sheets ("MSDS"), and warning information when warnings came into use. In addition, warning information may have been provided to the employer from unions and from regulatory agencies. Small employers, not having the benefit of engineering staffs or well-funded dust suppression equipment budgets, are particularly vulnerable.
Industrial Hygienist and IME Retention
Defendants may call IH experts to establish that defendant's products are neither defective nor unreasonably dangerous. They may testify that defendant's products do not release silica particles in a quantity or size sufficient to cause disease. They may also establish that plaintiff's employer knew or should have known of silica health effects, and performed poorly in regulatory compliance measures. Hygienists can also review the history of regulatory development and support the supplier defendants' response to the same. Lastly, they may also be called on to support the suppliers' warning publication record.
Independent medical examiners may be able to establish that plaintiff has no silica-related disease, or that mere simple silicosis is present without progression of disease. IMEs may also testify that plaintiff has a good prognosis without risk of development of cancer, and is not disabled in any way.
Warning Compliance Proof
Defendants may establish that their warnings complied with governmental regulations, and that MSDS sheets were passed onto product purchasers initially and as they were updated. Bulk suppliers will explain the difficulty presented in attempting to warn end-users when their product is not packaged. Defendants may also challenge the failure to warn claim by seeking to show that the existence of warnings would not have made any difference in the case.[45] Disease existence before warnings were required, a failure to heed cigarette package warnings, or the plaintiff's failure to modify conduct after warnings were first placed on product packaging, may support this defense. Transcending defendants' warning message will be the point that silica dust risks were well known, and thus warnings as a practical matter are unnecessary.
Assertion of Other Defenses
Breach of warranty claims are vulnerable to dismissal inasmuch as the four year statute of limitations, running from the date of tender of delivery of the product,[46] generally is long past. Certainly any testimony or medical history given by plaintiff of awareness of silica-related health conditions more than four years[47] or six years[48] from the commencement of the action, may support a limitations statute defense.
The so-called "sophisticated user" or "learned intermediary" defense may also aid a defendant where it is clear that plaintiff was aware of the risks of silicosis and chose to continue to encounter dust,[49] or where plaintiff's employer was fully aware of the hazards.[50] The "bulk supplier" defense may also apply to cases in which a defendant supplied product only in bulk;[51] in such circumstances the ability of a supplier to warn ultimate users is difficult. This defense works hand-in-glove with the defense that plaintiff's condition is the result of the employer's fault.[52]
The "state of the art" defense, by which a defendant's conduct is to be judged in light of industry customs and contemporary science at the time, may also be raised as a defense.[53] Finally, the statute allowing distributors to pass through strict liability claims to their solvent suppliers, may apply.[54]
Conclusion
In the wake of Minnesota's asbestos litigation, silica litigation has now emerged. This extension of occupational disease, products liability litigation builds upon the industry history investigation and medical awareness lessons learned by mass tort practitioners over the last 30 years. Except for the debatable cancer causation issue, asbestos and silica litigation are quite similar. It may be expected that the latter may increase, in view of the large number of workers who have been exposed in Minnesota to respirable crystalline silica. Lawyers advising Minnesota industrial product suppliers involved with silica or silica-containing products are well advised to confer with clients about the need to retain past and present product manufacturer and product liability insurer identification documents. As was learned in the asbestos litigation, no company in the chain of silica product distribution is immune from participation in these lawsuits.
Thomas D. Jensen is a member of the Minnesota, North Dakota, and Wisconsin bars. A Civil Trial Specialist certified by the National Board of Trial Advocacy, Mr. Jensen practices with Lind, Jensen, Sullivan & Peterson, Professional Association, 150 South 5th Street, Suite 1700, Minneapolis, MN 55402.
[1] An exceptional, and thoroughly litigated, foundry worker's silicosis claim was recently concluded in Hennepin County before the Hon. Cara Lee Neville. The case, Gray v. AIMCOR, et al., involving up to 28 defendants, can be reviewed at Court File Number 99-666. Mr. Gray was represented by the law firm of Sieben, Polk, LaVerdiere and Hawn, of Hastings, Minnesota.
[2] Sixteen foundry silicosis cases are known by the author to be pending in Wabasha County (Ct. File Nos. C6-00-565; C9-01-117; and C6-02-148), and one is pending in St. Louis County (Ct. File No. C4-02-600764).
[3] NIOSH, Occupational Exposure to Crystalline Silica, 1 (Aug. 1979). Additional forms of crystalline silica known as trydimate and cristobalite are more productive of pulmonary scarring than is quartz.
[4] NIOSH, supra note 3, at16. Silica flour was reported to fall "in the dangerous particle size range." Am. Foundryman, Foundry Safety Practices 54, 59 (Oct. 1953). Because the material is so fine, silica flour remains airborne for long periods of time and is capable of being inhaled deep into the lungs where the body's cleansing mechanism cannot eliminate it.
[5] NIOSH, Memorandum to Member Organizations of the Crystalline Silica panel (June 25, 1996).
[6] U.S. Dep't of Health & Human Services, Health Effects of Occupational Exposure to Respirable Crystalline Silica, Exec. Summ. v (Apr. 2002).
[7] Id. at 23. Crystalline silica particles are considered respirable if they are less than 10 micrometers in diameter. Id. Ten micrometers is approximately four ten-thousandths of an inch. Nat'l Indus. Sand Ass'n, About Crystalline Silica 1. A dose-response or exposure-response therefore is required for silicosis, as is the case with asbestosis.
[8] See U.S. Dep't of HEW, Occupational Exposure to Crystalline Silica 21 (1974).
[9] Id. at 24.
[10] U.S. Dep't of Health & Human Services, Recommendations for Control of Occupational Safety and
Health Hazards, Foundries 19 (Sept. 1985).
[11] The association between tuberculosis and silicosis has long been recognized. Am. Thoracic Soc'y, Adverse Effects of Crystalline Silica Exposure, 155 Am. J. Respiratory Critical Care Med. 761 (1997). Silicotics have a three-fold increase in incidence of tuberculosis. Id.
[12] See U.S. Dep't of HEW, supra note 8, at 45-46.
[13] Am. Thoracic Soc'y, supra note 11, at 764; U.S. Dep't of Health & Human Services, NIOSH, Current Intelligence Bulletin; Silica Flour: Silicosis 2 (June 30, 1981).
[14] See generally Otto Wong, The Epidemiology of Silica, Silicosis and Lung Cancer: Some Recent Findings and Future Challenges, 8 Pneusletter 1 (Aug. 2001); Janet M. Hughes, et al., Mortality Study of Industrial Sand Workers, Rep. to the Nat'l Indus. Sand Ass'n (May 12, 2000) (concluding that crystalline silica is a human lung carcinogen); Chi Kuen Chan, et al., Lung Cancer Mortality Among a Cohort of Men in a Silicotic Register, 42 J. Occupational & Envtl. Med. 69 (Jan. 2000) (concluding an association between silicosis and lung cancer does not exist).
[15] P. Cocco, Multifactorial Aetilogy of Lung Cancer Among Silica-exposed Workers, 30 Annals of the Acad. of Med. 468 (Sept. 2001).
[16] Id.
[17] Compare Murray M. Finkelstein, Silica, Silicosis, and Lung Cancer, 43 J. Occupational &Envtl. Med. 198 (Mar. 2001) (letter to the editor in favor of the association) with patrick A. Hessel, et al., Reply, 43 J. Occupational & Envtl. Med. 200 (Mar. 2001) (letter to the editor against the association).
[18] Cocco, supra note 15, at 469-72; patrick A. Hessel, et al., Silica, Silicosis, and Lung Cancer: A Response to a Recent Working Group Report, 42 J. of Occupational & Envtl. Med. 704 (July 2000); Harvey Checkoway & Alfred Franzblau, Is Silicosis Required for Silica-Associated Lung Cancer?, 37 Am. J. of Indus. Med. 252 (Mar. 2000).
[19] "Health hazards associated with the use of silica dusts have been recognized since shortly after the birth of Christ." Donald E. VanFarowe, Am. Foundrymen's Soc'y, Measurement of Dust in Foundries 11 (1952).
[20] See E.R.A. Merewether, The Risk of Silicosis in Sand-Blasters, 17 Tubercle 385 (June 1936).
[21] See Factories Act 1937 and 1949 - Blasting (Castings and Other Articles), Special Reg., 1949, London, Ministry of Labour and Nat'l Serv., Factory Dep't, 1951, at 4331-35.
[22] T.F. Hatch & A.C. Wellington, Indus. Hygiene Found., An Over-All Program of Silicosis Prevention in an Industrial Sand Plant (June 1955).
[23] The report comments that the silica sand industry "has a widespread reputation for producing silicosis" and that worker x-ray changes "are not easy to discount in a legal attack alleging silicosis." It also refers to the risk of tuberculosis caused by silicosis in some workers. See id. at 10-11, 13.
[24] Another key exhibit for plaintiffs is the April 21, 1977, memorandum of NISA public affairs official (and counsel for a member company) Richard E. Day entitled, A Perspective on Product Liability. The memorandum encourages member companies at pages 5 and 7 to "use warnings" not only on bagged products but also on products sold in bulk. Recommendations are also made to member companies to become involved in legislative efforts "to protect the industrial sand producer."
[25] B.C. Wright, Silica Safety Newsletter (June 21, 1983); Mins. Spec. Meeting Bd. Dirs., Silica Safety
Ass'n, Inc. (June 16, 1978).
[26] See U.S. Dep't of HEW, supra note 8.
[27] See U.S. Dep't of HEW, Industrial Health and Safety Criteria for Abrasive Blast Cleaning Operations, (Sept. 1974).
[28] In 1974, the OSHA PEL was set at 100 micrograms of airborne crystalline silica per cubic meter of air over an 8-hour per day/40-hour per week, time weighted average ("TWA") within the worker's breathing zone. 29 C.F.R. § 1910.1000 Table Z-3 (mineral dusts). This standard, characterized as a TLV, was endorsed by the ACGIH. ACGIH, Threshold Limit Values for Chemical Substances and Physical Agents in the Workroom Environment with Intended Changes for 1983 (1983). NIOSH, on the other hand, proposed a REL of 50 micrograms per cubic meter of air over a 10-hour per day/40-hour week TWA. NIOSH, Occupational Exposure to Crystalline Silica, Criteria Document (1974). Later, the OSHA PEL was reduced to the product of a fraction consisting of 10 milligrams per cubic meter of air divided by the percentage of silica in the airborne plant dust plus two.
[29] See, e.g., Leonard Greenberg, Am. Foundryman, Silicosis in the Foundry Industry (1938). The foundry industry group reported that "industry has a moral obligation" to "eliminate occupational disease." Foundry Safety Practices, supra note 4, at54.
[30] The American Foundrymen's Society approved a plan for development of industrial hygiene codes for foundries, "particularly the smaller foundries where they do not regularly employ an engineering staff" because of the "urgent need" for the industry to promulgate the codes. "[D]ust elimination equipment" was a top priority. See Am. Foundrymen's Ass'n, Tentative Code of Recommended Practices for Testing and Measuring Air Flow in Exhaust Systems 1 (Dec. 10, 1937). The AFA then reported in 1953 that:
"Good housekeeping is one of the most important ways of controlling the hazard from silica dust. There is good evidence in the literature that the incidence of silicosis is inversely proportional to good housekeeping. The higher the level of housekeeping, the lower the number of cases of occupational disease."
Am. Foundryman, 59 (Oct. 1953).
[31] See Am. Foundrymen's Society, Foundry Health & Safety Guide: Silica (Apr. 1976).
[32] See, e.g., Minn. Dep't of Labor & Indus., Safety Standards, § 4 (control of atmospheric contaminants; setting a five to 50 million particles per cubic foot of air threshold), § 8 (personal protective equipment) (1950); Minn. R. LIsc. § 10 (personal protective equipment), § 23 (control of atmospheric contaminants) (1971).
[33] O.A. Sander, Am. Foundryman, The Truth About Disease Caused by Foundry Dusts 53 (Sept. 1952).
[34] Bentonite is a term applied to a group of clays containing free silica that is useful in industrial applications for its great water-retaining properties. Its particle size is very fine and the material is kept dry until use, making it very dusty. Brendan P. Phibbs, Robert E. Sundin & Roger S. Mitchell, Silicosis in Wyoming Bentonite Workers, 103 Am. Rev. of Respiratory Disease 1 (Jan. 1971).
[35] National plaintiffs' counsel have developed a record they believe shows that respirator exhalation valve leakage, face seal leakage, filter leakage, approval test unreliability, and electrostatic problems render prior art respirators and masks defective. See Rodney P. Vincent & Michael S. Polk, Handling a Silicosis and/or Respiratory Protective Device Case, Mealey's Silica Litig. Conf. (Sept. 18, 2002). Respirator defendants counter that mask design, filter efficiency and aerosol science demonstrate that such devices are neither designed nor manufactured defectively. They also challenge claims that particular masks were used, and that mask non-use caused plaintiff's alleged disease. Whether plaintiff heeded mask warnings is also raised in defense.
[36] NIOSH, supra note 3, at 19.
[37] E.R.A. Merewether, supra note 20, at 389-90.
[38] The testimony is a bit of a two-edged sword because defendants use the testimony to argue that everyone (i.e., perhaps plaintiff and certainly plaintiff's employer) knew silica is potentially harmful so warnings were superfluous.
[39] U.S. Dep't of Health & Human Services, NIOSH Alert: Request for Assistance in Preventing Silicosis and Deaths from Sandblasting (1992).
[40] See Restatement (Third) of Torts, Prod. Liab., § 5, cmt. c (1997) (noting that naturally occurring minerals generally should not be considered defective in a "designed" or "manufactured" sense). The applicable failure to warn jury instruction is found at CIVJIG 75.25. The Restatement (Third) of Torts: Prod. Liab., § 2(c) (1997) describes the liability this way: a product "is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe."
[41] See Balder v. Haley, 399 N.W.2d 77, 81 (Minn. 1987).
[42] See, e.g., Reints v. Int'l Harvester Co., 346 N.W.2d 359, 362 (Minn. App. 1984). Defendants will define the test of causal link as meaning "substantial factor." See Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980).
[43] This is particularly the case in regard to bulk sand suppliers who cannot affix a warning label to each grain of sand, and therefore must warn buyers (employers) of hazards in product literature, in Material Data Safety Sheets, on invoices, and otherwise.
[44] See, e.g., Sander, supra note 33; Foundry Safety Practices, supra note 4.
[45] See Priefer v. Michelin Tire Corp., 1990 Minn. App. LEXIS 539, at *6 (noting that where the presence of a warning would not have altered plaintiff's conduct, the failure to warn cannot be a proximate cause of the injury).
[46] Minn. Stat. § 336.2-725 (2000).
[47] See Minn. Stat. § 541.05, subd. 2 (2000) (relating to strict liability claims); See Klempka v. G.D. Searle & Co., 963 F.2d 168, 170 (8th Cir. 1992) (recognizing that under Minnesota law the limitations statute begins to run when plaintiff has evidence of injury that may have resulted from use of product).
[48] See Minn. Stat. § 541.05, subd. 5 (2000) (relating to negligence claims). Cf. Fink v. Cold Spring Granite Co., 262 Minn. 393, 115 N.W.2d 22 (1962) (holding that the limitations statute in a workers' compensation silicosis claim begins when physical impairment manifests itself).
[49] See Minneapolis Soc'y of Fine Arts v. parker-Klein Assoc. Architects, Inc., 354 N.W.2d 816, 821-22 (Minn. 1984) (noting that generally no duty to warn arises when the user knows or should know of the potential danger); Harmon Contract Glazing, Inc. v. Libby-Owens-Ford Co., 493 N.W.2d 146, 151 (Minn. App. 1992) (noting that that the rule is particularly applicable when the user is a professional); Peppin v. W.H. Brady Co., 372 N.W.2d 369, 375 (Minn. App. 1985). But see Todalen v. U.S. Chemical Co., 424 N.W.2d 73, 78-80 (Minn. App. 1988) (holding that the sophisticated user defense, that bars liability as a matter of law, was not available when plaintiff (the "final user") was not sophisticated about hidden product dangers, even though his employer was knowledgeable), overruled on other grounds, Tyroll v. Private Label Chem., Inc., 505 N.W.2d 54 (Minn. 1993).
[50] See, e.g., Smith v. Walter C. Best, Inc., 927 F.2d 736 (3d Cir. 1990) (absolving the bulk sand supplier from silicosis liability because of the employer's knowledge and the supplier's difficulty in reaching end users with warnings); Goodbar v. Whitehead Bros., 591 F. Supp. 552 (W.D. Va. 1984) (holding in a silicosis case that the foundry employer's knowledge of silica hazards shielded bulk sand suppliers from liability).
[51] Hill v. Wilmington Chemical Corp., 279 Minn. 336, 156 N.W.2d 898 (1968) (holding that bulk supplier of chemical component part were not liable for failure to warn).
[52] Supplier defendants will seek jury instructions on the employer's duty to provide a safe workplace. See Nelson v. Rodgers Hydraulic Inc., 351 N.W.2d 36, 38 (Minn. App. 1984); Minn. Stat. § 182.653 (2000).
[53] See, e.g., Norton v. Snapper Power Equip., 806 F.2d 1545 (11th Cir. 1987).
[54] See Minn. Stat. § 544.41 (2000). However, a non-negligent distributor may nevertheless be strictly liable for failure to warn if the manufacturer is unable to satisfy the judgment. Marcon v. Kmart Corp., 573 N.W.2d 728 (Minn. App. 1998).
Thomas D. Jensen
Phone: (612) 333-3637
Fax #: 612-333-1030
E-mail: thomas.jensen@lindjensen.com
Lind, Jensen, Sullivan & Peterson, P.
A. is a member of
