Neal Parker v. Schmiede MacHine and Tool Corporation ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 21, 2011
No. 10-14703
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 1:04-cv-00606-RWS; 1:08-cv-02725-RWS
NEAL PARKER,
Individually and as Representative Plaintiffs on behalf
of all other similarly situated,
WILBERT CARLTON,
Individually and as Representative Plaintiffs on behalf
of all other similarly situated, et al.,
Plaintiffs-Appellants,
STEPHEN KING,
Individually and as Representative Plaintiffs on behalf
of all other similarly situated,
Plaintiffs,
versus
SCHMIEDE MACHINE AND TOOL CORPORATION,
THYSSENKRUPP MATERIALS NA, INC.,
d.b.a. Copper and Brass Sales,
ALCOA INC.,
MCCANN AEROSPACE MACHINING CORP.,
Defendants-Appellees.
________________________
No. 10-14741
________________________
D. C. Docket Nos. 1:08-cv-02725-RWS; 1:04-cv-00606-RWS
TIMOTHY P. BERUBE,
JOHN VANIMAN, et al.,
Plaintiffs-Appellants,
versus
SCHMIEDE MACHINE AND TOOL CORPORATION,
THYSSENKRUPP MATERIALS NA, INC.,
d.b.a. Copper and Brass Sales,
MCCANN AEROSPACE MACHINING CORP.,
ALCOA INC.,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(October 21, 2011)
Before HULL and ANDERSON, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
____________
*Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
This case involves two separate actions consolidated for discovery purposes
at the district court level and likewise consolidated on appeal.1 The Plaintiffs
appeal the district court’s grant of summary judgment. Because we find that the
learned intermediary or sophisticated user doctrine relieves the Defendants of
liability, we affirm.
I. BACKGROUND
The Plaintiffs are all current or former employees of the Lockheed Martin
Corporation (“Lockheed”) who have worked in its aircraft manufacturing plant in
Marietta, Georgia. They have had a variety of different job responsibilities, time
periods of employment, and work areas at the Lockheed facility, but they all have
worked with and around beryllium-containing products. Since 1952, Lockheed’s
Marietta facility has produced aircraft that contain beryllium parts. At least nine
different types of aircraft were produced at the site during the forty-year period in
question in this suit. Lockheed identified more than sixty-five non-party suppliers
of beryllium-containing products to the Marietta facility.
According to the Plaintiffs, any action that disturbs the surface layer of
beryllium ceramic or metal can produce respirable particles. Sandblasting,
1
The Parker matter was commenced in early 2004. The Berube matter was
commenced on August 27, 2008. The two matters were consolidated for discovery purposes by
the district court on October 16, 2008.
3
polishing, drilling, and other types of high-velocity abrading are especially likely to
generate respirable particles. In 1948, the Atomic Energy Commission established
an exposure standard for beryllium of 2.0 µg/m³. This exposure standard was
adopted by the Occupational Safety and Health Administration (“OSHA”) and
remains in place today. The Plaintiffs assert that even though this remains OSHA’s
standard, the beryllium manufacturing industry has long known that this standard is
inadequate to keep workers safe from the effects of respirable beryllium.
The Plaintiffs claim that their handling of beryllium or their presence in areas
where beryllium was being handled led to three of them contracting chronic
beryllium disease (“CBD”), and nine of them getting beryllium sensitization, a
precursor to CBD. The Plaintiffs sued Lockheed and various manufacturers of
beryllium parts in Georgia state court alleging a number of claims, of which only
the failure-to-warn claims remain.2 The Defendants removed the action to the
District Court for the Northern District of Georgia. Of the original defendants,
Lockheed and several others were dismissed from both the Parker and Berube
actions and Brush Wellman settled. Only four defendants—Alcoa, Inc., Schmiede
2
The Plaintiffs in Parker were originally part of a much larger group of class-action
plaintiffs. However, the district court dismissed the case, finding that the Plaintiffs’ claims of
subcellular, subclinical and cellular damage, and beryllium sensitization were not cognizable
under Georgia law. This Court affirmed the district court’s ruling as to subcellular, subclinical,
and cellular damage but reversed as to beryllium sensitization. Parker v. Brush Wellman, 230
Fed. App’x. 878 (11th Cir. 2007).
4
Machine and Tools Corporation, Thyssenkrupp Materials North America, and
McCann Aerospace Machining Corporation—remain.
After a year-and-a-half of extensive discovery, the Defendants moved for
summary judgment. Although the district court originally denied the Defendants’
motions for summary judgment, the court later reversed itself3 and, in September
2010, granted summary judgment on the basis of the sophisticated user doctrine
and the lack of direct causation. The Plaintiffs now appeal these rulings.4
3
The district court, in its first summary judgment order on August 25, 2010, denied
the Defendants’ motions based on the sophisticated user or learned intermediary doctrine.
However, the court subsequently reconsidered its order and held that Lockheed was a
sophisticated user of beryllium. The Plaintiffs challenge the district court’s power to reconsider
its holding, claiming that the district court violated the notice requirements of Rule 56. The
Plaintiffs rely on Imaging Business Machines, LLC. v. BancTec, Inc., 459 F.3d 1186, 1191 (11th
Cir. 2006), and Massey v. Congress Life Insurance Co., 116 F.3d 1414, 1417-18 (11th Cir.
1997). BancTec and Massey are easily distinguishable from the instant case because they
involved the consideration of issues that the plaintiffs had not been given a chance to brief, not a
reconsideration of previously briefed and decided issues. In the present case, “because the order
[denying summary judgment] was interlocutory, ‘the court at any time before final decree [could]
modify or rescind it.’ ” Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970)
(quoting John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88, 42 S. Ct. 196, 198 (1922)); see
also Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000) (noting that “the
district court has plenary power over [interlocutory orders] and this power to reconsider, revise,
alter or amend the interlocutory order is not subject to the limitations of Rule 59”) (quotation and
citation omitted). Thus, the Plaintiffs’ argument is without merit.
4
The court also granted the Defendants’ motion to exclude the opinions of the
Plaintiffs’ expert, Dr. John Martyny, under the standards of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (2003). However, the Plaintiffs did not
challenge this decision in their initial appellate brief. They failed to state sufficiently that they
were appealing the district court’s exclusion of the expert testimony. They failed to include it in
their statement of the issues, and they failed to clearly state it in a section or subsection heading.
Furthermore, the Plaintiffs failed to state the standard of review for challenges to the exclusion of
expert testimony, either in the standard of review section or in the argument. Issues that are not
briefed on appeal are considered abandoned. Denney v. City of Albany, 247 F.3d 1172, 1182
5
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, drawing all
reasonable inferences in the light most favorable to the non-moving party. Moore
ex rel. Moore v. Reese, 637 F.3d 1220, 1231 (11th Cir. 2011). Summary judgment
is appropriate where “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). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward
with specific facts showing that there is a genuine issue for trial.’ ” Int’l Stamp
Art, Inc. v. U.S. Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.
Ct. 1348, 1356 (1986)). “No genuine issue of material fact exists if a party has
failed to ‘make a showing sufficient to establish the existence of an element . . . on
which that party will bear the burden of proof at trial.’ ” Am. Fed’n of Labor &
Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186-87 (11th Cir. 2011)
(modification in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S. Ct. 2548, 2552 (1986)).
(11th Cir. 2001). Accordingly, the Plaintiffs waived this issue on appeal, and the testimony and
June 16, 2009, report from Dr. John Martyny are thus inadmissible.
6
III. DISCUSSION
Under Georgia law, a product supplier has a duty to warn foreseeable users
of a product’s danger if (a) the supplier has reason to know that the product is
likely to be dangerous for the use for which it is supplied, and (b) the supplier has
no reason to believe that the user will realize the product’s dangerous condition.
Carter v. E.I. DuPont de Nemours & Co., Inc., 456 S.E.2d 661, 662 (Ga. Ct. App.
1995) (citing Restatement (Second) of Torts § 388). “The adequacy of the warning
must be evaluated in conjunction with the knowledge and expertise of those who
may be reasonably expected to use or otherwise come into contact with the product
as it proceeds along its intended marketing chain.” Thornton v. E.I. Du Pont de
Nemours & Co., Inc., 22 F.3d 284, 289 (11th Cir. 1994) (affirming summary
judgment where a professional-grade paint thinner, marketed through distributors
for use by professionals, carried an adequate warning of its hazards).
However, the “sophisticated user” or “learned intermediary” doctrine
relieves a product manufacturer or supplier of this duty to warn the ultimate user
where there is an intermediary with knowledge of the hazard. See Dozier Crane &
Mach., Inc. v. Gibson, 644 S.E.2d 333, 335-36 (Ga. Ct. App. 2007) (“Under the
learned intermediary doctrine, a manufacturer is not normally required to directly
warn the ultimate consumer of a known risk if there is a learned intermediary
7
between the manufacturer and the ultimate consumer.”). “Where the product is
vended to a particular group or profession, the manufacturer is not required to warn
against risks generally known to such group or profession.” Eyster v. Borg-Warner
Corp., 206 S.E.2d 668, 670 (Ga. Ct. App. 1974) (quotation omitted) (affirming
directed verdict for manufacturer where the hazard “was one commonly known to
those in the trade”).
The Defendants point to overwhelming evidence that Lockheed Martin was a
sophisticated user of beryllium and a learned intermediary between the Defendants
and the Plaintiffs. For almost sixty years, the Lockheed facility has produced
aircraft containing beryllium parts. Since 1966, Lockheed has used the Department
of Defense’s “Handbook for Metallic Materials and Elements for Aerospace
Vehicle Structures” as a standard reference guide regarding the use of beryllium.
In 1983, Lockheed issued its own “Safety & Industrial Hygiene Standard No. 3.5.”
This document recognized that actions such as machining, polishing and grinding
create beryllium dust and vapors that may ultimately lead to respiratory problems.
Standard No. 3.5 outlined numerous engineering controls to be used to prevent the
inhalation of beryllium particles. Lisa Bosserman, the manager of Lockheed’s
Environmental, Safety and Health department, testified that Lockheed has warned
employees about the hazards of beryllium since at least the 1980s. She further
8
testified that a Material Safety Data Sheet (“MSDS”) from a manufacturer is a
generic warning and serves merely as a starting point for Lockheed’s industrial
hygienists and toxicologists, who conduct professional evaluations before issuing
detailed warnings and safety procedures for employees using beryllium-containing
raw materials. Dr. Pamela Rosett, a senior staff industrial toxicologist, testified
that in 1993 she spent 300 to 400 hours researching the health effects of beryllium.
Based on the record evidence, the Defendants have established that Lockheed is a
sophisticated user of beryllium and a learned intermediary between its employees
and the manufacturers of beryllium products.
In spite of Lockheed’s expertise in the potential dangers of working with
beryllium, the Plaintiffs contend that the Defendant-manufacturers possessed
information regarding the risks associated with beryllium that Lockheed did not
possess. The Plaintiffs, relying on Stuckey v. Northern Propane Gas Co., 874 F.2d
1563 (11th Cir. 1989), argue that Lockheed did not have actual knowledge of
beryllium’s dangers. In Stuckey, this Court, applying Georgia law, found that “a
supplier’s duty to warn a consumer does not turn on whether a warning was
actually given to an intermediary, but on whether the intermediary’s knowledge
was sufficient to protect the ultimate consumer.” 874 F.2d at 1568 (citing Eyster,
206 S.E.2d at 671). For purposes of this opinion we assume arguendo the
9
Plaintiffs’ interpretation of Stuckey and the Georgia law. Under this assumption, if
the Plaintiffs here adduce evidence from which the jury could conclude that (1) the
Defendants possessed information, which Lockheed did not possess, regarding a
particular danger associated with beryllium, and (2) the Defendants failed to warn
Lockheed of that danger, then summary judgment based on the sophisticated user
or learned intermediary doctrine would be inappropriate. However, the Plaintiffs
fail to adduce any evidence to satisfy this standard.
As an initial matter, the Plaintiffs fail to point to admissible evidence
demonstrating what knowledge the Defendants had regarding the hazards of
beryllium. In a chart on pages 30-31 of their appellate brief, the Plaintiffs list eight
statements allegedly demonstrating the “truth which defendants knew but failed to
disclose.” Of these eight statements, five cite only to Dr. Martyny’s June 16, 2009,
Amended Expert Report. As explained in note 4 supra, this report is not admissible
evidence.5 Therefore, the Plaintiffs have failed to point to record evidence to
support these allegations. Similarly, two other statements in the chart point to Dr.
Martyny’s inadmissible report as well as paragraph 8 of the Plaintiffs’ “Statements
5
Even if this evidence were admissible, it would not support the Plaintiffs’ claim
that the Defendants had superior knowledge. Dr. Martyny’s report makes general references to
the knowledge of the “beryllium industry,” but cites specific evidence relating only to Brush
Wellman, which is no longer a defendant in this case.
10
of Disputed Facts” (“SDF”), which paragraph fails to mention the Defendants at
all. Finally, the remaining statement cites to Dr. Martyny’s inadmissible report, Dr.
Martyny’s inadmissible testimony, Exhibit 54 (which contains two draft reports
regarding audits of Lockheed’s workplace controls), and Exhibit 55 (an internal
Lockheed report regarding its steps to prevent beryllium exposure). Neither
Exhibit provides any information regarding the Defendants. Accordingly, the
Plaintiffs fail to adduce evidence demonstrating knowledge of beryllium hazards
that the Defendants had but failed to disclose to Lockheed.
Even more significant, the Plaintiffs also fail to demonstrate that Lockheed
lacked actual knowledge regarding the hazards of beryllium. In the chart on pages
30-31 of their appellate brief, the Plaintiffs list eight statements allegedly
documenting “Lockheed’s belief.” However, none of the cited evidence supports
these statements, and some of the cited evidence actually contradict the Plaintiffs’
statements. For instance, the evidence the Plaintiffs cite for the proposition that
Lockheed did not know that invisible particulate can cause disease fails to support
this claim.6 To the contrary, Dr. Rosett testified that Lockheed did not have a
6
Ms. Bosserman’s cited testimony makes no mention of visible particulate.
Instead, she testifies that she has read literature suggesting that some individuals may develop
health effects from exposures below the OSHA standard. (Bosserman Dep. at 13-14). Similarly,
the cited Exhibit 52 (a 1998 Manufacturing Process Standard that relates to drilling, reaming, and
installation of expanded copper beryllium bushings) does not distinguish between visible and
non-visible particulate. Instead, it warns that “Beryllium and alloys of beryllium (copper
11
belief that beryllium dust had to be visible in order to be present in potentially
hazardous quantities. (Rosett Dep. at 459). In evidence cited by the Plaintiffs, Dr.
Rosett further testified that Lockheed’s scientists had knowledge that beryllium
particulate was invisible even at the OSHA 2.0 µg/m³ standard. (Id. at 467, 460).
Contrary to the sixth statement in the chart, Lockheed did not believe that
exposures below 2.0 µg/m³ were safe.7 In testimony not cited by the Plaintiffs, Dr.
Rosett testified that in the early 1990s she did not know what a safe level of
exposure to beryllium might be (Id. at 135), but that she found credible reports that
individuals had developed disease at levels 10 to 50 times below the OSHA
standard. (Id. at 151). Accordingly, she designed safety programs to achieve a
level of exposure much lower than the OSHA standard. (Id. at 133). Thus,
Lockheed had actual knowledge that invisible beryllium particulate in quantities
below the OSHA standard can be hazardous.
The Plaintiffs also fail to support their second statement, which claims that
Lockheed believed that local exhaust is required only when processes create visible
aluminum, etc.) are potentially very toxic. Any operation that produces airborne particles or
fumes requires controls and approvals of the hazardous materials programs department.”
(Exhibit 52 at 6). The document further warns that “dust sized or smaller particles can be
hazardous to your health.” (Id. at 10).
7
The Plaintiffs’ cited evidence reveals that Ms. Bosserman has read literature that
suggests that some individuals may develop health effects from exposures below OSHA
standards. (Bosserman Dep. at 14).
12
particulate. The evidence cited by the Plaintiffs makes no mention of visible
particulate.8 The 1983 Hygiene Standard No. 3.5, which was not cited by the
Plaintiffs, recommended using local exhaust for operations which are capable of
producing airborne concentrations of dust, mists, or fumes in excess of the OSHA
standard. The Standard further explains that “[w]hen air exhaust is not available or
is inoperative, individual respiratory protection shall be worn where hazardous air
concentration is possible.” Because Lockheed knew that particulate was invisible
even at the OSHA 2.0 µg/m³ standard, Lockheed had actual knowledge that local
exhaust may be needed even in the absence of visible particulate.
The Plaintiffs fail to adduce evidence to support the chart’s remaining four
statements. The Plaintiffs’ cited evidence does not support their claim that
Lockheed conducted air sampling only upon request of employees or upon
observation of visible particulate. (Bosserman Dep. at 81-84) (testifying that
8
In the cited SDF paragraph, the Plaintiffs allege that “Lockheed did not require
local exhaust when reaming, machining, deburring, or otherwise abrading beryllium-containing
parts.” The depositions the Plaintiffs cite fail to support this statement, revealing only that Ms.
Bosserman did not know whether such exhaust had been utilized and that a 1998 Manufacturing
Process Standard that relates to drilling, reaming, and installation of expanded copper beryllium
bushings does not list local exhaust ventilatory control. Even if the Plaintiffs could prove that
Lockheed did not employ the proper control devices, that proof would not be enough to rebut the
evidence that Lockheed had actual knowledge of the need for such controls. Under the standard
urged by the Plaintiffs, they must show that Lockheed lacked actual knowledge of beryllium’s
hazards, not that Lockheed failed to take all measures to adequately protect against those hazards.
For this reason, the chart’s third statement, “Reaming of copper-beryllium bushings was allowed
to be performed without respiratory or ventilatory controls,” also fails to demonstrate that
Lockheed lacked actual knowledge about beryllium’s hazards.
13
Lockheed has conducted periodic air testing since at least the early 1980s).
Testimony not cited by the Plaintiffs reveals that air sampling also was conducted
when a process changed, when a new process was implemented, and when there
was a change of material. (Id. at 241-42). Additionally, the Plaintiffs provide no
support for the proposition that Lockheed believed that “[n]o protective measures
are required when polishing or deburring”9 or that “[d]edicated work clothing [is]
not necessary.”10 Finally, the Plaintiffs provide no support for their contention that
prior to 2002, Lockheed did not know that fatigue test aircraft would expose
workers to respirable beryllium. The cited paragraph from the Plaintiffs’ SDF
makes no mention of fatigue tests, and Exhibit 53, an internal Lockheed document
from June 2002, specifically acknowledges that “metal dust containing beryllium
may be generated during fatigue cycling” and does not mention a lack of
9
The cited deposition testimony merely states that Ms. Bosserman had never taken
air samples during a deburring process. (Bosserman Dep. at 278-79). The 1983 Hygiene
Standard No. 3.5, which is not cited by the Plaintiffs, provides that, “Operations involving
beryllium which are capable of producing airborne concentrations of dust, mists, or fumes in
excess of the [prescribed control limits] must be performed in a Beryllium Control Area where
special engineering controls and air monitoring facilities are provided. Such operations include
but are not limited to: machining, grinding, polishing, sanding, . . . .” (Emphasis added). The
Standard goes on to list protective measures recommended and required for these activities.
10
The cited deposition testimony merely states that a clothes-changing regimen was
used in Lockheed’s paint booths in accordance with an OSHA regulation. (Bosserman Dep. at
225-26). However, among the engineering controls recommended by the 1983 Hygiene Standard
No. 3.5, which was not cited by the Plaintiffs, were “Company supplied work clothing, adjacent
change room, and clothes laundering facilities.” Thus, there is evidence that Lockheed had
actual knowledge of the need for “dedicated work clothing.”
14
knowledge before 2002.
For the foregoing reasons, the Plaintiffs have failed to make a showing
sufficient to create a genuine issue of fact that the Defendants possessed
information regarding a hazard of beryllium and that Lockheed lacked actual
knowledge of that hazard. The Plaintiffs have failed with respect to both prongs;
the Plaintiffs have failed to show either that Lockheed lacked knowledge of a
particular hazard, or that these Defendants did have knowledge of that hazard. The
overwhelming evidence in this record shows that Lockheed was a learned and
sophisticated user of beryllium, and, if anything, possessed knowledge superior to
that of these four Defendants.11
IV. CONCLUSION
After a review of the briefs and the evidence cited by the parties, see Fed. R.
Civ. P. 56(c)(1)(A), as well as the benefit of oral argument, we conclude that the
Plaintiffs have not adduced any evidence that would rebut the Defendants’ defense
that Lockheed Martin was a learned intermediary and a sophisticated user of
11
The Plaintiffs’ reliance on Genereaux v. American Beryllia Corp., 577 F.3d 350(1st Cir. 2009), is unavailing. Not only did that case apply Massachusetts law instead of Georgia
law, but there was also a lack of evidence that the plaintiff’s employer had knowledge of specific
hazards of beryllium. The evidence here establishes that Lockheed had actual knowledge of
beryllium’s hazards, and the Plaintiffs have failed to provide evidence to the contrary.
15
beryllium. Accordingly, we affirm the judgment of the district court.12
AFFIRMED.
12
Because summary judgment for the Defendants is appropriate on the basis of the
sophisticated user defense, we need not reach other possible grounds for affirming the judgment
of the district court.
16