GRAY V. BADGER MINING CORP. 676 N.W.2d 268 (2004) CASE BRIEF

GRAY V. BADGER MINING CORP.

676 N.W.2d 268 (2004)

NATURE OF THE CASE: Gray (P) brought a products liability action against Badger (D), et al, which manufactured and sold sand to P's employer. P alleged that his repeated exposure to silica dust caused silicosis of the lungs. The trial court denied D's motion for summary judgment. The Court of Appeals reversed. P's petition for review on the duty to warn was granted.

FACTS: P worked at Smith Foundry from 1951 until 1998, with the exception of a 2-year period in which he served in the infantry in Korea. Smith Foundry uses sand to create molds in which metal objects are cast. P brought a products liability action against D and other suppliers that manufactured and sold sand to Smith Foundry. P alleged that his repeated exposure to silica dust caused silicosis of the lungs. P sued in negligence and strict liability for failure to warn and on breach of warranties of merchantability and fitness for the intended purpose. P claims that D had knowledge that conventional disposable respirators were ineffective to protect workers against the inhalation of sub-micron sized particles of silica dust. D's own research showed that that disposable respirators could not be used for an extended period of time because they did not provide a good seal. When customers asked, D recommended they use a double cartridge half-mask respirator. D did not provide warnings or safety instructions with shipments made prior to 1981. When D renewed sales in 1992, its shipments were accompanied by warnings and printed safety instructions. The Material Safety Data Sheet actually stated: CONTAINS FREE SILICA, AVOID BREATHING DUST FROM THIS PRODUCT. PROLONGED EXPOSURE MAY CAUSE DELAYED LUNG INJURY (SILICOSIS). EXCESSIVE INHALATION OF DUST MAY RESULT IN RESPIRATORY DISEASE, INCLUDING SILICOSIS, PNEUMOCONIOSIS, AND OTHER PULMONARY FIBROSIS. THE INTERNATIONAL AGENCY FOR RESEARCH ON CANCER (IARC) HAS EVALUATED IN VOLUME 42, MONOGRAPHS ON THE EVALUATION OF THE CARCINOGENICITY RISK OF CHEMICALS TO HUMANS, SILICA AND SOME SILICATES (1987), THAT THERE IS 'SUFFICIENT EVIDENCE FOR THE CARCINOGENICITY OF CRYSTALLINE SILICA TO EXPERIMENTAL ANIMALS' AND 'LIMITED EVIDENCE' WITH RESPECT TO HUMANS. The MSDS instructed that, for 'protective equipment,' purchasers should 'use NIOSH or MSHA approved dust respirators.' P argues that this warning and the accompanying instructions were inadequate because disposable respirators are among the National Institute for Occupational Health and Safety (NIOSH) and Mine Safety and Health Administration (MSHA) approved respirators. There were extensive allegations and conflicts between facts as to just whether anyone has specialized knowledge and also arguments over the full extent of knowledge possessed by the Smith Foundry. Ds filed a motion for summary judgment. D claimed it owed no duty to warn because it sold raw material to a sophisticated purchaser. The district court denied all motions. P settled with all Ds except D. The parties stipulated to damages in order that D could appeal its denial of summary judgment. The court of appeals reversed the district court. A bulk supplier of silica sand to a sophisticated purchaser has no duty to warn the user of the dangers of exposure to silica dust. P's petition for review was granted on the duty to warn and D's petition for cross-review was granted on the raw material/component part supplier defense.

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