IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
IN RE: BAUXITE CONTAINING Master Case No: SX-2015-CV-097
SILICA HALLIDAY LITIGATION (Re: Nos. 2011-234, 239, 241, 249) SERIES
Cite as: 2026 VI Super 37P (Published)
Appearances:
J. Russell Pate, Esq.
The Pate Law Firm
PO Box 890
St. Thomas, VI 00804
For Plaintiffs
Warren T. Burns, Esq., Korey A. Nelson, Esq., Daniel H. Charest, Esq., Rick Yelton, Esq., Chase Charbonnet, Esq., Jayde R. Encalade, Esq.
Burns Charest, LLP
900 Jackson Street, Ste. 500
Dallas, TX 75202
For Plaintiffs
Kevin A. Rames, Esq.
K.A. Rames, P.C.
211 Company Street, Ste. 3 Christiansted,
St. Croix VI 00820
For Defendant Lockheed Martin Corporation
Gregory K. Wu, Esq., KaSandra N. Rogiers, Esq., Hannah Sanchez, Esq.
and Sangeeta Shastry, Esq.
Shook, Hardy, & Bacon LLP
2555 Grand Blvd.
Kansas City, MO 64108
For Defendant Lockheed Martin Corporation
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Julia B. Mosse, Esq., Matthew T. Messina Esq., Jacques Semmelman, Esq., Debra Lefler, Esq., Eliot Lauer, Esq.
Katten Muchin Rosenman, LLP
50 Rockefeller Plaza
New York, NY 10020-1605
For Defendant Glencore Limited
Douglas Capdeville, Esq.
Capdeville Law
2107 Company St.
St. Croix, V.I. 00822
For Defendant Glencore Limited
MEMORANDUM OPINION
(Filed August 31, 2026)
Andrews, Jr., Judge
INTRODUCTION
Plaintiffs Rodney Felix, Miguel Velez, Gabriel Ramos, and Ronald Boston,
former workers at the alumina refinery (the Refinery) located on the south shore of
St. Croix, bring this action for damages against Glencore, Ltd. (Glencore), a New
Jersey corporation who supplied bauxite ore to the Refinery when it was owned by
the Virgin Islands Aluminum Corporation (VIALCO). 1 They allege during their
employment at the Refinery, they were exposed to bauxite ore which caused them
to suffer from mixed dust pneumoconiosis (MDP). They contend that Glencore
1
Plaintiffs also sued Lockheed Martin Corporation (LMC), the successor-in-interest to several Martin Marietta entities who owned and operated the Refinery before VIALCO. However, subsequent to the filing of the instant motion, they filed notices of dismissal against LMC which this Court granted on August 19, 2026.
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failed to provide adequate warnings as to the dangerousness of bauxite ore.
Glencore moves this Court to grant a summary judgment against Plaintiffs
because, among other reasons: 1) their negligence claims are not applicable under
the Restatement (Second) of Torts; 2) Plaintiffs cannot show that they in fact have
MDP; and 3) they cannot prove that their alleged MDP was caused by exposure
to bauxite.2 Plaintiffs respond that summary judgment is inappropriate because
issues of material fact exists with respect to each of Glencore’s challenges. For
the reasons mentioned below, this Court finds that issues of material fact preclude
the issuance of summary judgement.
FACTUAL BACKGROUND3
General Facts
From 1972 to 1985, predecessors of LMC, collectively known as Martin
Marietta (MM), owned and/or operated an alumina refinery (the Refinery) located
on the south shore of St. Croix.4 Pls.’ Resp. to Defs.’ Joint S.U.F. 1:1, 2:6. The
Refinery closed in 1985. Id. at 1:2. Virgin Islands Aluminum Company (VIALCO)
2
Glencore also moved for summary judgment based on the statute of limitations. That
issue is addressed in a separate opinion.
3
The pertinent facts pertaining to the issues raised in Glencore’s motion are undisputed.
4 Plaintiffs dispute this fact and assert that each of LMC’s predecessors had a different
role within the Refinery. Pls.’ Resp. to Defs.’ Joint S.U.F. ¶ 2. However, they submitted no document in support of their bare denial and do not specifically dispute Glencore’s assertion. Thus, the Court treats the asserted fact as undisputed. V.I. R. Civ. P. 56(e)(2). In Re: Bauxite Containing Silica Halliday Litigation Series
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purchased the Refinery in 1989, resumed operations in 1990, and closed in 1995.
Id. at 2:3-5. Glencore was an indirect owner of VIALCO and supplied it with
bauxite. Id. at 3:20; 26:147. However, it is not being sued in its capacity as owner.
Id. at 26:147. Glencore was not involved with the day-to-day operations at the
Refinery. Id. at 43:211. Nevertheless, its personnel periodically visited VIALCO.
Id. at 55:236.
MM Alumina operated the Refinery and converted bauxite ore into alumina
using the Bayer process. Id. at 29:159. The Bayer Process is a complex method
of chemical extraction. Id. at 2:12. MM Aluminum handled the maintenance side
of the Refinery and MM Alumina ran the day-to-day operations. Id. at 29:161;
30:162. Bauxite is usually delivered by ship. Id. at 2:9. The Red Side of the
Refinery processed raw bauxite ore, which is typically reddish rusty in color, into
pregnant liquor. Id. at 3:13; 3:16. The White Side processed the pregnant liquor
into alumina which his typically white. Id. at 3:15. Alumina is an interim product in
the production cycle of aluminum and is smelted by a smelter to create purified
aluminum. Id. at 2:10-11. Glencore supplied VIALCO with bauxite. Id. at 3:20. It
was no longer the owner of the bauxite ore after delivery to VIALCO. Id. at 56:245.
Between 1970 and 1985 Martin Marietta and Harvey Aluminum, Inc.
purchased between 600,000 and more than 1,000,000 long tons of bauxite each
year. Id. at 27:150. MM Alumina contracted with various bauxite suppliers from In Re: Bauxite Containing Silica Halliday Litigation Series
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around the world, including Guyana, Northern Australia, and Guinea, West Africa.
Id. at 27:151. Bauxite ore is sold in bulk by the shipload and offloaded by crane.
Id. at 28:154. A typical shipload of bauxite ore delivered to VIALCO consisted of
anywhere from 40,000 to 45,000 metric tons, with at least two or three shipments
per month. Id. at 28:155. The standard method for providing a warning to the
purchaser of such bulk commodities is by delivering a Material Safety Data Sheet
(MSDS) to the purchaser. Id. at 28:156.
Plaintiff Ronald Boston, died on May 12, 2020 at approximately 75 years of
age. Id. at 4:22-23. He claims to have worked at the Refinery from 1970 to 1983
for MM Alumina, Inc. and 1984-1985 for MM Alumina Properties, Inc. From 1990
to 1995 for VIALCO and 1995 to 2000 for Alumina Company of America (Alcoa).
Compl. 6:34; Pls.’ Resp. to Defs.’ Joint S.U.F. 4:24; 5:27. Boston alleges he was
a boiler operator and worked on three separate boilers. Id. at 4:25. He claims to
have been exposed to excessive amounts of red dust during his employment at
the Refinery. Id. at 4:26.
Plaintiff Rodney Felix is 78 years old. Id. at 5:28. He was employed at the
Refinery as a maintenance worker from 1973 to 1985 when it was owned by MM,
1991 to 1995 when it was owned by VIALCO and 1996 to 2000 when Alcoa owned
it. Id. at 5:29-32.
Plaintiff Gabriel Ramos is 75 years old. Id. at 5:34. He worked at the In Re: Bauxite Containing Silica Halliday Litigation Series
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Refinery as an instrument technician from 1972 to 1985 under MM’s ownership.
From 1991 to 1995 under VIALCO’s ownership, and up to 1997, when Alcoa
owned it. Id. at 6:35-38. He claims he was in contact with alumina, bauxite,
insulation, red dust, coal acids, and other acids during his employment. Id. at 6:40.
Plaintiff Miguel Velez is 59 years of age. Id. at 6:41. He worked at the
Refinery as a heavy machine operator, carpenter, and maintenance worker from
1982 to 1985 for MM. From 1990 to 1995 for VIALCO and from 1995 to 1999 for
Alcoa. Id. at 7:42-43. He also worked in heavy materials in all parts of the facility.
Id. at 7:44. Velez alleged he came in contact with irritating or noxious chemicals,
toxins, fumes, radiation, dust, catalyst asbestos, silica, and/or other deleterious
substances. Id. at 7:45.
All Plaintiffs claim they were exposed to bauxite ore dust, its constituent
components, and its waste products during the course of their employment at the
Refinery. See e.g., Compl. 2011-234 at 7:35 (Felix). They also claim they were
diagnosed with mixed-dust pneumoconiosis (MDP) on June 20, 2009. Id. at 7:39.
In 1978, Rosie Mackay took over as the Refinery’s Safety Engineer at the
Refinery. Pls.’ Resp. to Defs.’ Joint S.U.F. 30:165. She is a certified safety
specialist, a registered professional engineer in the Virgin Islands, and is a member
of the American Society of Safety Engineers. Id. at 31:166. MM had safety
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in a timely manner. Id. at 34:176. ORMET was involved in safety training at the
VIALCO Refinery. Id. at 41:199. Warren Pedersen worked at the Alumina
Refinery when it was owned by MM. Id. at 42:204. VIALCO was under the
regulatory oversight of Occupational Safety and Health Administration (OSHA) and
the Mine Safety and Health Administration (MSHA). Id. at 42:206.
PROCEDURAL HISTORY
Plaintiffs filed their initial complaints on May 9, 2011 against LMC, Aleris
Rolled Products, Inc. and General Engineering Corporation. Compls. 2011-234;
2011-239, 2011-241, 2011-249. They amended their complaints on May 31,
2011, and added Glencore as a defendant. First Am. Compl., 05/31/11. After two
further amendments, Plaintiff filed Fourth Amended Complaints against LMC and
Glencore on August 8, 2022. Fourth Am. Compls. All counts allege negligence
claims.
On September 10, 2021, Glencore and LMC filed the instant “Joint Motion
for Summary Judgment” and on October 6, 2021 filed a “Supplemental Brief in
Support of Motion for Summary Judgment”. These filings relate solely to
bellwether Plaintiffs, Rodney Felix (20011-234), Miguel Velez (2011-239), Gabriel
Ramos (2011-241), and Ronald Boston (2011-249). 5 Plaintiffs opposed the
5
Defendants state in the motion that “this motion is directed solely to the claims filed
by the Bellwether Plaintiffs.” Defs.’ Joint Mot. for Summ. J. 1.
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motions on October 21, 2021 to which Glencore and LMC replied on November 1,
2021. On August 19, 2026, this Court granted Plaintiffs’ motion to dismiss LMC.
No hearing on the motions was held.
APPLICABLE LAW
¶1 Under Virgin Islands law, summary judgment shall be granted “if 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.” V.I. R. Civ. P. 56(a); Machado v. Yacht
Haven U.S.V.I., LLC, 61 V.I. 373, 380 (V.I. 2014) (stating summary judgment is not
to be granted unless “the pleadings, discovery, and disclosures of materials on file,
and any affidavits show that there is no genuine issue of material fact.). The
movant bears the burden of demonstrating the absence of any genuine issue of
material fact based upon the record. Aubain v. Kazi Foods of V.I., LLC, 70 V.I. 943,
948 (V.I. 2019) (quoting Brodhurst v. Frazier, 57 V.I. 365, 373-74 (V.I. 2012)). The
moving party may meet his burden by “pointing out that there is an absence of
evidence to support the nonmoving party’s case.” Id. If this is done, the burden
shifts to the non-moving party to demonstrate with affirmative evidence from which
a jury might reasonably rule in his favor. Id. Pursuant to the Virgin Islands
Supreme Court, “‘affirmative evidence’ means ‘actual evidence’ and ‘not mere
allegations’.” Basic Servs. v. Govt. of the V.I., 71 V.I. 652, 659 (V.I. 2019). In
considering a summary judgment motion, “this Court must view all evidence in the In Re: Bauxite Containing Silica Halliday Litigation Series
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light most favorable to the non-moving party.” Id. Here, Plaintiffs are the nonmoving parties.
LEGAL ANALYSIS
Glencore launches several attacks on Plaintiffs’ various negligence claims.
It contends that: Plaintiffs’ Section 388 claims are inapplicable because of the
knowledgeable purchaser rule; their Section 389 claims are inapplicable to
inherently dangerous products; their Section 390 claims are inapplicable since
Defendants lacked the right to control the bauxite post-delivery; and Plaintiffs’
general negligence claims should be dismissed because Glencore had no duty to
warn Plaintiffs about the potential hazards of bauxite. Glencore further contends
that Plaintiffs cannot show that they in fact have MDP, nor can they establish that
their alleged MDP injury was caused by exposure to bauxite. The Court
separately addresses each of these contentions.
1) Plaintiffs’ Section 388 Claim
In Count 2 of Felix’s, Velez’s and Ramos’ complaints, as well as in Count 6
of Boston’s complaint, Plaintiffs allege that Glencore supplied bauxite ore to the
Refinery, knew it was dangerous, should have expected that Plaintiffs could be
endangered by its probable use, and failed to warn them of the dangerousness of
bauxite ore, thus causing them to suffer harm. See e.g., Compl. 11-234 at 9:60-65.
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These claims are pursuant to Section 388 of the Restatement (Second) of Torts,
which provides that one who supplies (directly or through a third person) a chattel
to another to use is subject to liability to those who the supplier should expect to
use the chattel . . . or to be endangered by its probable use . . . if the supplier:
(a) knows or has reason to know that the chattel is or is likely to be
dangerous for the use for which it is supplied;
(b) has no reason to believe that those for whose use the chattel is supplied
will realize its dangerous condition; and
(c) fails to exercise reasonable care to inform them of its dangerous
condition or of the facts which make it likely to be dangerous.
Restatement (Second) of Torts § 388. This section thus imposes a general duty
on manufacturers, suppliers, and sellers to warn users of known dangers inherent
in their products. In re Kelvin Manbodh Asbestos Litigation Series, 47 V.I. 215, 247
(V.I. Super. Ct. 2005); Smith v. Walter C. Best, Inc., 927 F.2d 736, 739 (3d Cir.
1990) (stating, Section 388 . . . sets out the general principles governing a product
supplier’s obligation to warn users of hazards associated with that product.”).
Webb v. Special Electric Co., Inc., 370 P.3d 1022, 1033 (Cal. 2016) (stating that
“a manufacturer or distributor has a duty to warn about all known or knowable risks
of harm from the use of its product.”). Glencore contends that the knowledgeable
or sophisticated purchaser defense, adopted by Virgin Islands courts, applies to
Plaintiffs’ Section 388 claims. Defs.’ Joint Mot. for Summ. J. 5:39-47. In fact, this In Re: Bauxite Containing Silica Halliday Litigation Series
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Court has recognized the sophisticated intermediary (or knowledgeable
purchaser) defense and determined that it would potentially bar recovery where
the defendant: 1) adequately warned the intermediary; and 2) reasonably relied on
the intermediary to communicate the warning to the ultimate user. In re Kelvin
Manbodh Asbestos Litigation Series, 47 V.I. at 247. A defendant’s duty to warn
is discharged if the method used “gives a reasonable assurance that the
information will reach those whose safety depends upon their having it.” Id. at 248-49 (citing Restatement (Second) of Torts § 388, cmt. n). Thus, to establish this
defense, Glencore must show that:
a) It provided adequate warnings to VIALCO’
b) VIALCO was a knowledgeable or sophisticated purchaser; and
c) Glencore’s reliance on VIALCO to communicate the warnings to the
ultimate users was reasonable.
See Id.; and Smith, 927 F.2d at 739.
Glencore presents no direct proof that it provided any required warnings.
Instead, it boldly asserts that “[i]t is undisputed that Glencore provided a bauxite
MSDS to VIALCO.” Defs.’ Joint Mot. for Summ. J. 41. It relies on a statement in
Plaintiffs’ complaints that Glencore provided warnings and MSDS sheets to the
Alumina Refinery; argues that the MSDS complied with federal regulations; and
references a single MSDS sheet identified as Defs.’ Exs. 115 and 223. Id. Despite
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MSDS to VIALCO is a question of material fact. 6 Pls.’ Opp’n to Defs.’ Joint Mot.
for Summ. J. 32. This Court agrees.
Plaintiffs’ complaints do not specify what MSDS sheet or warning was
provided; the content of any warning or MSDS sheet; nor when the sheets or
warnings were given. Thus, even accepting their statements as admissions they
do not permit an adequacy analysis of the warnings. Glencore also relies on a
February 20, 1990 letter of adequacy issued to VIALCO by the U.S. Coast Guard
Marine Safety Office. In the letter, the Captain of the Port states that Glencore’s
Operations Manual meets the requirements of 33 C.F.R. 154 (2026). Defs.’ Reply
in Further Supp. of Defs.’ Joint Mot. for Summ. J. 19; Id. Ex. 217. Glencore argues
that VIALCO’s Operations Manual contained “the Glencore-provided bauxite
MSDS,” and hence VIALCO must have previously received it from them. Id. It
submitted two identical January 4, 1989 bauxite MSDS sheets (Exs. 217 and 223),
which it claims were included in both VIALCO’s Operations Manual and Glencore’s
records. Id. Glencore, however, submitted no evidence (e.g., affidavit,
6
The Court notes that Plaintiffs “may not avoid summary judgment through creating an issue of material fact by contradicting, without explanation, the substantive allegations in [their] complaint[s] through an inconsistent sworn affidavit or deposition testimony.” Arlington Funding Servs., Inc.v. Geigel, 51 V.I. 118, 133 (V.I. 2009). Here, however, Plaintiffs’ contrary evidence is derived from Glencore’s witness; and Plaintiffs’ complaint statement, standing alone, is insufficient to establish the adequacy of the warnings.
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declaration, deposition testimony, etc.) in support of its claim. 7 Its argument
concerning the contents of VIALCO’s Operations Manual does not establish that
appropriate warnings were provided. To the contrary, Glencore’s 30(b)(6)
witness, testified that Clarendon (n/k/a Glencore) did not provide VIALCO with any
MSD sheets. Pls.’ Opp’n to Defs.’ Joint Mot. for Summ. J. 23:11-13; Ex. 58. The
same witness later testified he did not know if Clarendon (subsequently known as
Glencore, Inc.) passed on any MSDS sheet to VIALCO or if they already had a
copy. Pls.’ Opp’n to Defs.’ Joint Mot. for Summ. J. 49:18-23. This evidence
creates a genuine issue of material fact as to whether Glencore provided VIALCO
with any warnings or MSDS sheets; if so when; and whether any warning or sheet
provided was adequate.
In light of this conclusion, the Court does not address the other Section 388
factors, i.e., whether Glencore was a knowledgeable or sophisticated purchaser
and whether Glencore reasonably relied on VIALCO to transmit the warnings to its
employees.
7
Glencore also suggests that this Court should adopt the Virgin Islands District Court’s factual
finding in Henry v. St. Croix Alumina, LLC, Civ. No. 199-036, 2007 U.S. Dist. LEXIS 98205,
(D.V.I. Aug. 10, 2007) that “Glencore provided VIALCO with an MSDS”. Defs.’ Reply in
Further Supp. of Defs.’ Joint Mot. for Summ. J. 18. It provided no rule of law that would allow
such an adoption of another court’s factual findings in an unrelated case. This Court is aware
of no such authority.
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2) Plaintiffs’ Sec. 389 Claim
In their complaints, Plaintiffs allege that Glencore supplied bauxite ore to the
Refinery from 1990 to 1995 when it was owned by VIALCO. Compls. 2011-234,
2011-239, 2011-241 at 2:13; Compl. 11-249 at 2:14. In Count 3 of Felix’s,
Velez’s, and Ramos’, and in Count 7 of Boston’s complaints, Plaintiffs claim:
a) Glencore knew or should have known the bauxite ore was unlikely to be
made reasonably safe before being put to the use Glencore should have
expected, i.e., to refine it to aluminum powder, alumina, and mud tailings.
Compls. 2011-234, 239, 241 at 10:69; Compl. 2011-249 at 14:110;
b) Plaintiffs were foreseeable users of the chattel, were endangered by the
probable use of it, were ignorant to the dangerous character of bauxite
ore, and was not contributorily negligent. Compls. 2011-234, 239, 241 at
10:70-71; Compl. 2011-249 at 14:112; and
c) Glencore directly caused and is liable, under Section 389 of the
Restatement, for the harm caused by their exposure to bauxite ore.
Compls. 2011-234, 2011-239, 2011-241 at 10:67, 72; Compl. 2011-249
at 14:107, 113.
These claims are based on Section 389 of the Restatement (Second) of Torts
which provides that:
One who supplies directly or through a third person a chattel for
another's use, knowing or having reason to know that the chattel is
unlikely to be made reasonably safe before being put to a use which
the supplier should expect it to be put, is subject to liability for physical
harm caused by such use to those whom the supplier should expect
to use the chattel or to be endangered by its probable use, and who
are ignorant of the dangerous character of the chattel or whose
knowledge thereof does not make them contributorily negligent,
although the supplier has informed the other for whose use the chattel
is supplied of its dangerous character.
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Restatement (Second) of Torts, § 389 (emphasis added). Glencore contends that
Section 389 only applies in situations where the chattel in question could have
been made reasonably safe before being put to an expected use but was not. 8
Defs.’ Joint Mot. for Summ. J. 47. They further argue that Plaintiffs’ claim is
essentially that bauxite is inherently dangerous and such claims are not cognizable
under Section 389. Id. at 48.
To say that a chattel is unlikely to be made safe before use implies its
susceptibility to pre-use safety alteration or modification. Glencore, in essence,
argues that bauxite cannot be made safe before use and hence Plaintiffs’ claim
does not fit within the parameters of Section 389. A cursory reading of Section
389 appears to support Glencore’s contention. However, further analysis of the
applicable Commentary paints a different picture.
Comment “f” explains that a chattel may be made reasonably safe through
pre-use warning (rather than by altering the chattel itself). It provides in pertinent
part:
Under normal conditions a chattel which is in some respects
dangerous, or is dangerous when put to some uses, can still be
reasonably safe if proper warning of the danger is given to the user.
8
In support of its contention, Glencore cites Dupree V. Keller Indus, Inc., 404 S.E. 2d 291
(Ga. Ct. App. 1991). However, although Dupree applied Section 389 to a situation where the
chattel (a hydraulic punch press) could have been made safe before use, it did not hold nor
state that Section 389 only applies to chattels that could be made safe before use. The
Court’s focus was on the lack of evidence that the defendant knew or should have known that
the chattel was unlikely to be made safe before use (i.e., that it lacked safety devices). In Re: Bauxite Containing Silica Halliday Litigation Series
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Thus, a chain saw which is unsafe for use on hard wood may still be
quite safe for use on soft wood and is not unreasonably dangerous if
the information is conveyed to the user. Again, an inflammable
cleaning fluid may be very dangerous if it is used in the vicinity of an
open flame, but quite safe for use if it is not; and it is not unreasonably
dangerous if warning of the danger is given.
Restatement (Second) of Torts § 389, cmt f. This Comment clearly contemplates
that Section 389 would encompass the supplying of a chain saw or inflammable
cleaning liquid where proper warnings are absent, even though such chattel cannot
be made safe before use. The focus is not on failure to alter or modify the chattel
pre-use, but on the provision of appropriate pre-use warnings which will permit
safe use. It recognizes a duty to warn on the part of the supplier.
Section (f) provides a clear illustration as follows:
A manufactures and sells combs for use in permanent wave treatment
in beauty shops. Heat treatment of the hair is normal and customary
in such shops. A’s combs are highly inflammable, and dangerous in
the presence of heat. A sells a quantity of the combs to B, a dealer,
accompanying them with a warning that they are to be used for cold
treatment only. B sells some of the combs to C, a beauty shop
operator, but neglects to pass on the warning. C uses the combs in
heat treatment of D’s hair. They catch fire and D is burned. A is
subject to liability to D.
Restatement (Second) of Torts § 389, cmt f. (Illustration No. 2). Here, it is quite
evident that the combs could not be made safe before use. They could, however,
be made safe during use if precautions are taken (i.e., used in cold treatments
only). This circumstance (i.e., the inability to make a chattel safe before use), per
the Comments, is within the scope of Section 389 liability. For these reasons, this In Re: Bauxite Containing Silica Halliday Litigation Series
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Court concludes Plaintiffs’ claim, that their likely unsafe use of the bauxite supplied
by Glencore was foreseeable by Glencore, is cognizable pursuant to Section 389.
Hence Glencore is not entitled to summary judgment on its “cannot be made safe
before use” argument.
Glencore also argues that Plaintiffs’ claim is essentially that bauxite is
inherently dangerous and such claims are not cognizable under Section 389. It
cites Bougopoulos v. Altria Croup, Inc., 954 F. Supp.2d 54, 63-65 (D.N.H. 2013) in
support of this claim. To the extent Bougopoulus suggests that Section 389 does
not encompass inherently dangerous chattel, this Court disagrees. Such reading
is not supported by the Restatement nor the comments therein. See Tallman v City
of Hurricane, 985 P.2d 892, 895 (Utah 1999) (upholding a Section 389 claim
regarding a dangerous trench dug by the defendant, and stating, “Section 389 of
the Restatement then underscores the nature of the duty owed by the supplier of
an unfinished, inherently dangerous product.” Id. Haukos’s production of such an
inherently dangerous trench is analogous to the production of an unfinished and
inherently dangerous manufactured product.”). Id. The Court thus finds
Glencore’s argument unpersuasive.
3) Plaintiffs’ Section 390 Claim
In their complaints, Plaintiffs allege that Glencore supplied bauxite ore to the
Refinery from 1990 to 1995 when it was owned by VIALCO. Fourth Am. Compls. In Re: Bauxite Containing Silica Halliday Litigation Series
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2011-234, 2011-39, 2011-241 at 2:13; Fourth Am. Compl. 11-249 at 2:14. In
Count 4 of Felix’s, Velez’s, and Ramos’, and in Count 8 of Boston’s complaints,
Plaintiffs claim:
a) Glencore knew or had reason to know that the Alumina Refinery owners
and operators were incompetent. Fourth Am. Compls. 2011-234, 239,
241 at 10:76; Fourth Am. Compl. 2011-249 at 11:84;
b) Glencore knew or should have known that VIALCO failed to implement
the necessary engineering controls to minimize worker exposure to
bauxite, its constituent components and waste products. Fourth Am.
Compls. 2011-234, 239, 241 at 11:78; and
c) Glencore should have expected that Plaintiff would be endangered by
the use of bauxite ore at the Refinery. Fourth Am. Compls. 2011-234,
239, 241 at 11:84; Fourth Am. Compl. 2011-249 at 12:85.
These claims are based on Section 390 of the Restatement (Second) of Torts
which provides that:
One who supplies directly or through a third person a chattel for the
use of another whom the supplier knows or has reason to know to be
likely because of his youth, inexperience, or otherwise, to use it in a
manner involving unreasonable risk of physical harm to himself and
others whom the supplier should expect to share in or be endangered
by its use, is subject to liability for physical harm resulting to them.
Restatement (Second) of Torts § 390. Glencore contends that Section 390 is
inapplicable to Plaintiffs’ claim since it had no “right to control” the bauxite after
sale to VIALCO. Defs.’ Joint Mot. for Summ. J. 49. This Court disagrees.
At the outset, the Court notes that the Restatement does not limit its
application to certain suppliers of chattel. It says “one who supplies” a chattel In Re: Bauxite Containing Silica Halliday Litigation Series
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without describing how (via sale, loan, etc.) the chattel is supplied. Secondly, the
commentary to Section 390 plainly states that
The rule stated applies to anyone who supplies a chattel for the use
of another. It applies to sellers, lessors, donors, or lenders, and to all
kinds of bailors, irrespective of whether the bailment is gratuitous or
for consideration.
Restatement (Second) of Torts § 390, Cmt. a. Clearly, a seller loses the right to
control a chattel after sale. Yet the commentary makes clear that Section 390 still
applies. Other courts agree. In Brady v. Walmart Inc., the plaintiff sued Walmart
for selling a firearm to an employee, Jacob Mace, who subsequently committed
suicide with the firearm. Brady v. Walmart, Inc., No. 8:21-cv-01412-AAQ, 2024
U.S. District LEXIS 89824 (D. Md. 2024). Walmart argued that negligent
entrustment does not apply because it had no control over the gun at the time
Mace committed suicide. Id. at *46. The Maryland District Court disagreed finding
that “[t]he overwhelming weight of authority thus indicates that section 390 applies
to sellers, including firearms dealers, with no requirement that the seller exercised
any ongoing control.” Id. at *50. Similarly, the Arizona District Court in Estados
Unidos Mexicanos v. Diamondback Shooting Sports, Inc., rejected the defendants’
argument that the complaint failed to state a claim for negligent entrustment since
they had not owned or controlled the firearms after sale. Estados Unidos
Mexicanos v. Diamondback Shooting Sports, Inc., No. CV-22-00472-TUC-RM,
2024 U.S. Dist. Lexis 52185, at *46 (D. Ariz. 2024) They stated that Arizona’s In Re: Bauxite Containing Silica Halliday Litigation Series
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adoption of Section 390 supports the proposition that the doctrine of negligent
entrustment under Arizona law extends to product sellers. Id. at *47. Here,
Plaintiffs claim Glencore supplied VIALCO with bauxite knowing they could be
endangered by its use. This claim is cognizable under Section 390.
Glencore cites several cases in support of its contention that Section 390
requires a showing that the supplier had ongoing control after supplying the chattel.
The Court finds these cases distinguishable.
In Mills v. Crone, 973 S.W.2d 828 (Ark. Ct. App. 1998), the plaintiffs assisted
their son in purchasing a motor vehicle who later got into an accident, causing
injury to another. Id. The Arizona Court of Appeals, while interpreting Section 308
of the Restatement, held that in order for the defendants to be liable for negligent
entrustment, they must have had the right to control their son’s use of the vehicle.
Id. Unlike the circumstances here, the Court did not interpret Section 390.
Another case cited by Glencore, Zedella v. Gibson, 650 N.E. 2d 1000 (Ill. 1995),
made the same ruling interpreting Section 308 and is thus distinguishable as well.
In Zetter v. Griffith Aviation, Inc., the Kentucky District Court acknowledged that
the commentary to Section 390 states that it applies to sellers, lessors, donors,
etc. Zetter v. Griffith Aviation, Inc., No. 6: 03-218-DCR, 2006 U.S. District LEXIS
23192, at *46 (E.D. Ky. 2006). It does not support Glencore’s contention.
Finally, Glencore cites Sports Inc. v. Gilbert, 431 N.E.2d 534 (Ind. Ct. App. 1982) In Re: Bauxite Containing Silica Halliday Litigation Series
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in support of its contention. There, the Indiana Court of Appeals stated that
Section 390 only applies to those who own or have the right to control the
automobile or chattel in question. Id. at 537. This statement, however, is fact
specific. In Gilbert, the defendant, the defendant’s employee, a private security
guard, stopped and questioned someone who drove onto unauthorized premises.
Id. They determined he was intoxicated but did not arrest him. Id. The driver
later left the premises and collided with the plaintiff causing injury. Id. The court
reasoned that the defendant did not own the driver’s truck, had no right to control
it, and hence cannot be considered a supplier or owner for purposes of Section
390. Id. at 537. Here, Glencore had control of the bauxite before its sale and
“supplied” it to VIALCO. Gilbert is inapposite. For these reasons, Glencore is
not entitled to summary judgment on Plaintiffs’ Section 390 claims.
4) Plaintiffs’ General Negligence Claims
Glencore contends that Plaintiffs’ negligence claims, (i.e., Negligent
Undertaking per Section 324A and General Negligence) should be dismissed
because it had no duty to warn Plaintiffs about the potential hazards of bauxite as
it was entitled to reasonably rely on VIALCO as a knowledgeable purchaser to
warn Plaintiffs. Defs.’ Joint Mot. for Summ. J 50. The claims appear in Counts 1
and 5 of Plaintiffs’ complaints, and in Count 11 (the ninth count) of plaintiff Boston’s
complaint. This Court earlier addressed a similar argument by Glencore in In Re: Bauxite Containing Silica Halliday Litigation Series
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defense of Plaintiffs’ Section 388 claim. The same result is warranted here.
As explained above, the knowledgeable purchaser or sophisticated
intermediary defense requires a showing that:
1) The seller provided adequate warnings to the purchaser;
2) The purchaser was a knowledgeable or a sophisticated purchaser; and
3) The seller’s reliance on the purchaser to communicate the warnings to
the end user was reasonable.
In re Kelvin Manbodh Asbestos Litigation Series, 47 V.I. at 247. Other courts
require a similar showing to establish the sophisticated purchaser defense. In
Higgins v. Huhtamiki, Inc., the United District Court of Maine stated that "the
overwhelming majority of jurisdictions hold that a supplier is absolved of the duty
to warn later purchasers and users down the chain of distribution when (1) the
product is sold to an intermediary with knowledge or sophistication equal to that of
the manufacturer; (2) the manufacturer adequately warns this intermediary; and
(3) the manufacturer can reasonably rely on the intermediary to warn the ultimate
consumer." Higgins v. Huhtamiki, Inc., No. 1:21-cv-00369-JCN, 2023 U.S. District
LEXIS 179566, at *23 (D. Me. 2023) (citing Koken v. Black & Veatch Constr., Inc.,
426 F.3d 39, 47 (1st Cir. 2005) ). In Vineyards v. UPLNA, Inc., a California United
States District Court held that “Under the sophisticated intermediary doctrine: [A]
supplier may discharge its duty to warn end users about known or knowable risks In Re: Bauxite Containing Silica Halliday Litigation Series
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in the use of its product if it: (1) provides adequate warnings to the product's
immediate purchaser, or sells to a sophisticated purchaser that it knows is aware
or should be aware of the specific danger, and (2) reasonably relies on the
purchaser to convey appropriate warnings to downstream users who will encounter
the product. Vineyards v. UPL NA, Inc., No. 1:20-cv-00506-JLT-CDB, 2024 U.S.
District LEXIS 133409, at *26 (E.D. Cal. 2024). In regard to a similar defense, the
United States District Court of Minnesota ruled that “the bulk supplier defense is
similar to the sophisticated intermediary defense. A supplier of bulk material ‘can
discharge its duty to warn the end user by warning the buyer of the dangerous
condition of the materials’.” Begg v. Hercules, Inc., Civil No. 04-4489, 2005 U.S.
District LEXIS 27539, at *12 (D. Minn. 2005) (citing Gray v. Badger Mining
Corp., 676 N.W.2d 268, 280 (Minn. 2004) ). Similarly, the U.S. District Court for
the Northern District of Ohio ruled that “under the ‘bulk supplier/sophisticated,’ or
‘knowledgeable purchaser,’ doctrine, a manufacturer can discharge its duty to
warn by providing the necessary information to an intermediary upon whom it can
reasonably rely [on] to communicate the information to the ultimate user of the
product.” Midwest Specialties v. Crown Indus. Prods. Co., 940 F. Supp 1160, 1165
(N.D. Ohio 1996). These cases make clear that establishing the sophisticated or
knowledgeable user defense requires proof that the intermediary was warned.
This Court has already concluded that a genuine issue of material fact exists as In Re: Bauxite Containing Silica Halliday Litigation Series
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to whether Glencore provided VIALCO with any warnings, and if so whether such
warning was adequate. This finding alone precludes summary judgment on the
basis of Glencore’s knowledgeable purchaser defense as Glencore was required
to warn VIALCO to establish the knowledgeable purchaser defense.
Even if warnings were given, it is questionable whether VIALCO was a
sophisticated (or knowledgeable) purchaser. VIALCO commenced operations in
1990, and nothing presented establishes that they had prior experience working
with bauxite ore. It thus appears to have been an infant company. Glencore was
an indirect owner of VIALCO hence would have been aware of VIALCO’s newness.
Its senior environmentalist, Erick Black testified that:
a) In his experience, bauxite was considered a nuisance, not toxic dust;
b) There was no ambient dust monitors at the Refinery;
c) VIALCO did not monitor worker’s exposure to bauxite and had no
certified hygienist at the refinery, and none visited the Refinery;
d) He was never told at VIALCO that breathing constituents of bauxite could
cause lung problems;
e) He did nothing to warn workers about potential health hazards associated
with exposure to bauxite constituents during the time he worked at
VIALCO;
Pls.’ Opp’n to Defs.’ Joint Mot. for Summ. J. 36:3; 64:4; 118:7-12; 123:8-9;
123:13-16; Ex. 14 (Black Depo.). Glencore personnel periodically visited
VIALCO. Pls.’ Resp. to Defs.’ Joint S.U.F. 55:236. They were presumably aware In Re: Bauxite Containing Silica Halliday Litigation Series
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of the apparent lack of knowledge, on VIALCO’s part regarding the potential health
effects of bauxite exposure. Glencore makes several arguments in support of its
argument that VIALCO was a knowledgeable purchaser, including reference to the
thousands of metric tons of bauxite it purchased monthly and that it was operated
by professionals. Defs.’ Joint Mot. for Summ. J. 39. Nevertheless, the testimony
of Black creates a genuine issue of material fact as to whether VIALCO was a
knowledgeable or sophisticated purchaser thus precluding summary judgment on
this ground.
5) Plaintiffs’ Evidence of MDP – All Counts
Glencore contends Plaintiffs have no admissible evidence that they have
MDP. Defs.’ Joint Mot. for Summ. J. 51. It claims Plaintiffs’ single piece of
evidence that they have MDP is the opinion of Dr. Bentancourt which should be
excluded pursuant to their Daubert motion. Id. Without Bentancourt’s opinion, it
argues, “Plaintiffs cannot meet their burden of demonstrating injury.” Id. at 52. It
further points out that other potential evidence of injury (Dr. Breyer’s B-read report
and Plaintiffs’ Pulmonary Function Tests) are insufficient to sustain Plaintiffs’
burden. Id. at 53-54. Glencore also argues that Plaintiffs’ medical history confirms
they do not have MDP. Id. at 54. These arguments rely on the absence of any
MDP finding by Plaintiffs’ treating physicians. The mere absence of an MDP
finding, by treating physicians, establishes little if anything. Such lack of finding In Re: Bauxite Containing Silica Halliday Litigation Series
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could easily be due to the fact that the physicians did not test Plaintiffs for MDP.
In any event, Glencore’s lack of MDP evidence argument is foreclosed by this
Court’s Order denying its motion to exclude the testimony of Dr. Bentancourt. 9
Order, March 26, 2024. Dr. Bentancourt issued reports in 2009 and 2020 opining
that Plaintiffs have MDP. Defs.’ Joint Mot. for Summ. J. Exs. 57-60. That
admissible opinion alone is sufficient to raise an issue of fact regarding whether
Plaintiffs have MDP. Glencore’s argument that Plaintiff’s lack of evidence of MDP
is thus unavailing.
6) Plaintiffs’ Causation Evidence – All Counts
Glencore contends Plaintiffs cannot meet their burden of proving general
causation on any count of their complaints. Defs.’ Joint Mot. for Summ. J. 61. It
claims that: a) under the standard set by Plaintiffs’ expert, Dr. Thomas Dydek, they
cannot show the bauxite supplied to the Refinery can cause MDP; b) Plaintiffs have
no evidence other than Dr. Dydek to prove causation and his opinion is
inadmissible pursuant to their Daubert motion; and c) the scientific studies upon
which Dr. Dydek relies do not close gap left by the exclusion of his testimony. Id.
at 62-63. Glencore’s argument is foreclosed by this Court’s Order denying their
9
The Court’s order denying Glencore’s motion to exclude Dr. Bethancourt’s testimony was
issued after the filing of the instant motion.
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motion to exclude Dr. Dydek’s opinion. 10 Order, August 23, 2024. Dr. Dydek
opined that “it is toxicologically plausible that the dust exposures the Plaintiffs
suffered while working at the Refinery were of sufficient intensity, frequency, and
duration to have caused the MDP with which they have been diagnosed.” Id. at 1.
His now admissible opinion alone is enough to raise a genuine issue of fact as to
whether Plaintiffs’ MDP was caused by exposure to bauxite and other dusts at the
Refinery. Glencore’s argument regarding the standard set by Dr. Dydek goes to
the weight, not admissibility of his testimony. Its arguments on this issue are thus
unavailing.
CONCLUSION
For the reasons mentioned above, this Court concludes that genuine issues
of material fact exist regarding each of Glencore’s argument hence the entry of
summary judgment is precluded. An order consistent with this opinion will be
issued contemporaneously.
DATED: August 31, 2026 __________________________
ALPHONSO G. ANDREWS, JR.
Superior Court Judge
10
The Court’s order denying Glencore’s motion to exclude Dr. Dydek’s testimony was issued
after filing of the instant motion.
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Attest:
TAMARA CHARLES
CLERK OF THE COURT
COURT CLERK III
08-31-2026
DATE