Law 360, New York (August 20, 2009) – A federal appeals court has allowed a suit filed by a former Raytheon Co. plant worker and her family to proceed against three beryllium manufacturers who allegedly supplied the defense company with products containing the hazardous metal that caused the employee’s chronic beryllium disease.
In an opinion released Thursday the U.S. Court of appeals for the first Circuit dismissed the “sophisticated user” defense advanced by Brush Wellman Inc., American Beryllia Corp. and Hardric Laboratories Inc. and found that sufficient controversy existed over when the limitations period on the plaintiffs’ claims began.
“After a careful review of the record, we conclude that a reasonable jury could find that the plaintiffs’ common-law claims were timely and that the sophisticated user defense did not relieve the defendants of liability,” the opinion said.
The appeals court on July 29 vacated a summary judgment ruling in favor of the defendants and remanded the case, filed by Suzanne Genereux, her husband and their children, back to the U.S. district Court for the District of Massachusetts.
“We’re delighted at the opportunity to continue to prosecute the case in the district court,” said plaintiffs’ attorney Ruben Honik of Golomb & Honik PC.
According to the district court’s ruling, Genereux’s three-year limitations period began to run when she first consulted her doctor about a potential CBD infection and ended just three days before she filed her complaint.
For the First Circuit, however, “the question is when Genereux had sufficient notice that her lung disease was caused by the appellees’ conduct,” and not when she first began investigating her symptoms.
A reasonable jury could find that, before she was diagnosed, Genereux might have attributed the symptoms to her asthma, the panel said.
As to Genereux’s remaining claims, which were subject to a four-year limitations period, the lower court found they were barred by the sophisticated user doctrine because Raytheon, the end user of the beryllium products, should have known about the hazards of the material.
But Raytheon did not know about the specific dangers of beryllium related to polishing the metal and to the risks of beryllium at concentrations of 2 micrograms, according to the First Circuit.
“Of course, the record leaves little question that Raytheon was … a sophisticated company and that it knew a considerable amount about beryllium,” the opinion said. “Still, it would be speculative to infer, on these grounds along, that Raytheon knew or should have known of the polishing and 2-microgram-level dangers.”
In this case, the levels of sophistication of the suppliers and the defense contractor were different, and the beryllium manufacturers may have had a duty to warn Raytehon about the specific dangers, according to the opinion.
Brush Wellman and American Beryllia have filed petitions for rehearing with the court. Attorneys for the beryllium suppliers did not immediately respond to requests for comment Thursday evening.
Genereux worked at the backward wave oscillator lab in Raytheon’s plant in Waltham, Mass., from 1982 to 1990, the opinion says. She put together “subassemblies” for radar tubes, which required her to smooth and sandblast parts that she claims contained beryllium.
In the mid-1980’s Genereux was hospitalized several times for asthma and upper respiratory illnesses, she alleges. She began investigating CBD in early 2001 and was diagnosed in August 2002.
Genereux’s amended complaint alleges negligence, breach of warranty, failure to warn, violation of Massachusetts General Laws and other claims.
Raytheon was named in the suit because Genereux’s family initially asserted medical monitoring and other claims, but the defense company was dropped from the litigation early in the proceedings.
The plaintiffs are represented by Golomb & Honik PC and Meehan Boyle Black & Bogdanow PC
American Beryllia is represented by Clark Hunt & Embry.
Brush Wellman is represented by Jones Day and Edwards Angell Palmer & Dodge LLP.
Hardric is represented by Nadeau Law PLLC.
The case is Genereux v. American Beryllia Corp., case number 07-2676, in the U.S. Court of Appeals for the Seventh Circuit.
