United States District Court, W.D. Arkansas, El Dorado Division
VICKIE BELL; PHILLIP B. BELL, JR. and JONATHAN BELL, PLAINTIFFS
MINE SAFETY APPLIANCES; RUEMELIN MANUFACTURING COMPANY, INC.; PULMOSAN SAFETY EQUIPMENT CORPORATION; CLEMCO INDUSTRIES, INC.; and JOHN DOES 1-7, DEFENDANT
Susan O. Hickey United States District Judge
Before the Court are two Motions for Summary Judgment filed by Defendant Ruemelin Manufacturing Company, Inc. (“Ruemelin”). (ECF Nos. 103 & 143). Plaintiffs have responded to these motions. (ECF Nos. 121 & 155). Ruemelin has filed Replies. (ECF Nos. 124 & 160). Plaintiffs have filed a surresponse. (ECF No. 168). Defendant has filed a surreply. (ECF No. 183).
Phillip Bell (“Bell”) was employed by Camden Monument. Bell worked in the Camden Monument plant and also sandblasted outside the plant on the weekends in cemeteries. Ruemelin supplied some equipment to Camden Monument during the years Bell was employed there. Bell died in 2010. Plaintiffs brought this cause of action against Ruemelin, alleging that the equipment it supplied to Camden Monument was defective and led to Bell’s death.
In its first Motion for Summary Judgment, Defendant asserts that the undisputed evidence fails to establish a prima facie case against Ruemelin with regard to any theory of liability, including product defect, negligence/failure to warn, and breach of warranty. (ECF No. 103). In the second Motion for Summary Judgment, Ruemelin asserts that, without certain opinion testimony, Plaintiffs have no evidence that Bell was exposed to a sufficient dose of silica to cause silicosis, and that there is no evidence to support their claims of injury caused by silica sand inside the Camden Monument plant. (ECF No. 143). The Court finds these matters ripe for its consideration.
A motion for summary judgment will be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). To establish that a genuine issue of material fact exists, the nonmoving party must show that (1) there is a factual dispute, (2) the disputed fact is material to the outcome of the case, and (3) the dispute is genuine. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 339, 401 (8th Cir. 1995). A dispute is genuine only if a reasonable jury could return a verdict for either party. Id.; Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995).
II. First Motion for Summary Judgment
Defendant argues that Plaintiffs cannot establish a prima facie case against Ruemelin for any of the theories, separated into three different product categories: (1) abrasive blasting equipment used inside the Camden Monument plant, (2) abrasive blasting equipment used outside the Camden Monument plant, and (3) the canvas hood.
A. Blasting Equipment Inside the Camden Monument Plant
Defendant first asserts that Plaintiffs cannot establish a prima facie case against Ruemelin because Camden Monument began using aluminum oxide, rather than silica sand, as a blasting abrasive at its facility as early as 1973. Ruemelin asserts that, because it sold its first blast generator to Camden Monument in November 1972, the blasting done inside the plant with Ruemelin equipment used aluminum oxide rather than silica sand “virtually the entire time.” Defendant further asserts that, even during the time Camden Monument used the Ruemelin blast equipment and silica sand, Bell was not a sandblaster inside the plant. Thus, there is no causal connection between the injury allegedly caused by the use of silica sand and Ruemelin’s equipment. In response, Plaintiffs argue that the equipment should have contained warnings against the use of silica sand.
Plaintiffs have not contested Defendant’s assertion that Camden Monument ceased using silica sand as a blasting abrasive during 1973. The only time Ruemelin may be held liable for the alleged harm inside the Camden Monument plant is during the time silica sand was used with Ruemelin blast equipment, from November 1972 until sometime in 1973.
In order to show that the defendant’s product was a proximate cause of his injury, a plaintiff must prove (1) that he was exposed to a particular toxic substance made by the defendant, (2) with sufficient frequency and regularity, (3) in proximity to where he actually worked, (4) such that it is probable that the exposure to the defendant’s product caused the plaintiff’s alleged injuries. Skender v. Ameron Intern. Corp., 2009 WL 129891, at *2 (W.D. Ark. Jan. 20, 2009) (citing Chavers v. Gen. Motors Corp., 79 S.W.3d 361, 369 (Ark. 2002)).
In support of its contention, Defendant points to the depositions of Camden Monument employees Ed Parker and Larry Benton. Ed Parker stated in his deposition that Bell “not only did shop, he did sales, and was actually in the office where everybody else was in the shop.” (ECF No. 103-3). However, he also said that Bell “didn’t stay out of the shop.” (ECF No. 103-3). Larry Benton stated in his deposition that he never saw Bell doing the job of blasting inside the plant. (ECF No. 103-5). In response, Plaintiffs point to the deposition of Terry Reddin to demonstrate that Bell did sandblast inside the shop. (ECF No. 121-11). In his deposition, Reddin says that he saw Bell operate the sandblaster in 1972 inside the plant. (ECF No. 121-11, pg. 14). Reddin also asserts that Bell trained him to do some shape-carving “later on, say around ‘73 or ‘74.” (ECF No. 121-11, p.14). However, Reddin remembers only one time that Bell actually did ...