Genereux v. American Beryllia Corp.

United States Court of Appeals
For the First Circuit

No. 07-2676

SUZANNE GENEREUX, Individually and as Parent and Natural
Guardian to minor children A.G. and K.G.; BARRY
GENEREUX, Individually and as Parent and Natural
Guardian to minor children A.G. and K.G.,

Plaintiffs, Appellants,

v.

AMERICAN BERYLLIA CORP.; BRUSH WELLMAN, INC.; HARDRIC
LABORATORIES, INC.,

Defendants, Appellees,

BRUSH WELLMAN CERAMICS, INC.; BRUSH WELLMAN CERAMIC
PRODUCTS, INC.; KYOCERA AMERICA, INC.; KYOCERA
INDUSTRIAL CERAMICS CORP.; RAYTHEON COMPANY,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Baldock*, and Lipez, Circuit Judges.

Ruben Honik, with whom Stephan Matanovic, Golomb & Honik,
P.C., Leo V. Boyle, and Meehan, Boyle, Black and Bogdanow, P.C.
were on brief, for appellants.

* Of the Tenth Circuit, sitting by designation.
 William F. Ahern, Jr., with whom Jeremy Y. Weltman and Clark,
Hunt & Embry were on brief, for appellee American Beryllia Corp.
Robert M.A. Nadeau, with whom Nadeau Law, LLC was on brief,
for appellee Hardric Laboratories, Inc.
Jeffery D. Ubersax, with whom Robert S. Faxon, Jones Day, Alan
M. Spiro, and Edwards Angell Palmer & Dodge LLP were on brief, for
appellee Brush Wellman, Inc.

July 29, 2009
 LIPEZ, Circuit Judge. Suzanne Genereux, her husband

Barry Genereux, and their children brought suit against various

manufacturers of beryllium products, alleging that their products

caused injury to Suzanne Genereux when she came into contact with

them at her workplace. The complaint asserted negligence, breach

of warranty, failure to warn, violation of Massachusetts General

Laws chapter 93A, and other claims. The district court granted

summary judgment for the defendants on all of the plaintiffs'

claims, concluding that the common-law claims were time-barred and

that the defendants were relieved of liability under chapter 93A by

Massachusetts's "sophisticated user" defense. Plaintiffs appealed.

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. We therefore vacate and remand.

I.

On appeal from summary judgment, we take the facts in the

light most favorable to the non-moving party and draw all

reasonable inferences in its favor. CMI Capital Mkt. Inv., LLC v.

González-Toro, 520 F.3d 58, 61 (1st Cir. 2008).

A. The Raytheon Company and Beryllium

Suzanne Genereux ("Genereux") worked for Raytheon Company

("Raytheon"), a major defense contractor, from 1982 to 1990. She

was employed at the company's Waltham, Massachusetts plant, where

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its Microwave and Power Tube Division was then headquartered.

Genereux spent seven years in the plant's Backward Wave Oscillator

Lab and one year as a quality assurance technician.1 In the

Backward Wave Oscillator Lab, Genereux assembled components, known

as "subassemblies," for incorporation into radar tubes. She spent

most of her time working on two subassemblies: the "ARCO window"

and the "Tall Man." Both subassemblies contained beryllium.

Beryllium is a silver-grey non-magnetic metal that is

exceptionally light, stiff, and able to disperse heat rapidly.

When alloyed with other metals, such as copper, beryllium tends to

pass on its properties to the alloy. This is also true of

beryllium oxide ceramics, or "beryllia," which can withstand

extreme temperatures and rapidly disperse heat. These features

make beryllium ideal for many specialized applications, including

x-ray windows, transistors, jet brake pads, ceramic jet engine

blades and rocket covers, nuclear reactors, and nuclear weapons.

Unfortunately, however, beryllium dust and fumes are hazardous to

human health. In some individuals, inhaling beryllium dust

triggers an immune response, causing inflammation and the formation

of granulomas in the lung tissue. This disease is known as

"chronic beryllium disease," and it gives rise to a number of

1
Genereux also worked in quality assurance at Raytheon's
Northborough plant, but only for a short time. She did not work
with beryllium in this position. She also worked briefly as a
production coil winder, which did not involve beryllium.

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symptoms, such as coughing, shortness of breath, fatigue, weight

loss, fevers, and night sweats. The beryllium industry has long

known of the disease and implemented various hygienic controls to

prevent it.

Brush Wellman, Inc. ("Brush"), American Beryllia Corp.

("American Beryllia"), and Hardric Laboratories, Inc. ("Hardric")

manufacture beryllium ceramic and beryllium alloy parts and supply

these parts for use in some of the applications discussed above.

Brush is the largest domestic producer of beryllium-containing

products, including beryllium oxide ceramics, and sometimes

supplies beryllium to other beryllium manufacturers for further

processing. Brush is also one of the oldest producers of beryllium

products; it has been in existence since 1931 (incorporated as

"Brush Beryllium Company"), and its facilities hosted one of the

earliest major studies of beryllium exposure and beryllium disease,

carried out in the late 1940's by the United States Atomic Energy

Commission. American Beryllia was incorporated in 2002 after

purchasing the assets of General Ceramics, which had manufactured

beryllium products since the 1950's, initially under the name

National Beryllia Corporation. General Ceramics, Brush, and

Hardric manufactured beryllium parts that Genereux worked with in

the Waltham Backward Wave Oscillator Lab.2

2
Appellees dispute this point. See infra section
III(C)(2).

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 Raytheon used both beryllium ceramics and beryllium

metals in the Backward Wave Oscillator Lab. Blueprints used by

Genereux identified several subassembly parts containing beryllium.

For example, the ARCO window contained two beryllium parts: a

beryllium copper sleeve and a cylindrical beryllium oxide ceramic.

The Tall Man contained a rectangular beryllium oxide ceramic.

Genereux performed a number of operations on these parts that

produced respirable dust. She filed, sanded, smoothed (using a

Dremel rotary tool), and polished beryllium copper and possibly

other beryllium metals.3 These processes removed small amounts of

material from the metal, some of which were so small that they

would become airborne and remain suspended in the air as respirable

dust.

Genereux also spent considerable time sandblasting

various beryllium ceramics -- between two hours a day and eight

hours a day, towards the end of the month or when a shipping

deadline approached.4 She used a pencil grit blaster, which worked

by expelling grit from a nozzle controlled by the operator. This

process removed small amounts of ceramic material from the

3
Appellees dispute that Genereux polished beryllium
metals. See infra section III(B)(2).
4
Genereux was sometimes asked to sandblast beryllium oxide
ceramics in addition to those contained in the ARCO window and the
Tall Man subassemblies.

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beryllia. Although sandblasting took place under a hood,5 the

ceramic material and some of the grit would become airborne,

producing white dust that settled on Genereux's clothes and shoes.

In addition to these activities, Genereux was also designated to

handle, store, and track all the beryllium parts used in the

Backward Wave Oscillator Lab.6

Raytheon took steps to control employees' exposure to

beryllium dust, and Brush, along with other beryllium producers,

provided Raytheon with information about appropriate hygienic

controls and exposure rates. We discuss aspects of Raytheon's

industrial hygiene program and Brush's input to it below.

B. Diagnosis of Chronic Beryllium Disease

Genereux became ill many times during her employment at

Raytheon. Sometime in 1983 or 1984, she developed a cough and

shortness of breath. The symptoms were attributed to asthma, and

physicians prescribed a treatment regimen of steroids and inhalers.

Sometime later, Genereux was hospitalized for five days and

5
Genereux described two sandblasting machines. The first
machine was equipped with a plexiglass shield or sash. The
operator would put on protective gloves and lower the sash over the
gloves, operating the pencil blaster behind the sash. A year after
Genereux arrived, this machine was replaced. The second machine
may have been equipped with a complete sandblasting enclosure and
local exhaust ventilation. It still emitted dust.
6
As the district court noted in its Memorandum & Order,
Genereux also "alleges that she was exposed to airborne beryllium
dust generated elsewhere in the plant that spread through the
ambient air."

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diagnosed with "recurrent asthma." Physicians again prescribed

inhalers, and supplemented them with prednisone. Genereux returned

to work, but after a period of three to four months she developed

an upper respiratory infection. Exacerbation of asthma symptoms

required Genereux to be hospitalized several times during the year.

Throughout this period and afterwards, Genereux regularly sought

emergency care. According to the report of a pulmonologist

treating her, "she has gone to the emergency room approximately

three times a year for respiratory complaints."

In November 1990, Genereux took a medical leave of

absence from Raytheon due to a high-risk pregnancy. After her

pregnancy, Genereux developed carpal tunnel syndrome and required

surgery on both of her hands. Unable to work, she went on

"extended sick leave" from Raytheon and ultimately did not return.

Genereux began to receive long-term disability benefits through

Raytheon during this time. However, in 1994 the insurance company

discontinued benefits on the grounds that Genereux was no longer

disabled. Genereux repeatedly sought reinstatement of the

benefits, arguing that she remained completely disabled and was

entitled to benefits until age sixty-five.

Meanwhile, Genereux was formally diagnosed in 1997 with

vascular Parkinson's disease in her right side, where she suffered

from tremors, pain, and muscle weakness. In late 2000 or early

2001, finding that she was unable to pay her expenses, Genereux

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wrote United States Senator Jack Reed, seeking his assistance in

obtaining reinstatement of the long-term disability benefits and

securing a pension. In her letter, Genereux stated that she

suffered from Parkinson's disease and was "totally disabled."

Genereux then wrote:

I am told that the causes of Parkinson's
Disease are still being researched, I am told
that environment may be a cause, but it may
not be found out in my lifetime. While
working for Raytheon, I worked in rooms with
asbestos ceilings (which left dust on the
benches and other items) . . . . I was forced
to sandblast beryllium ceramics with no masks,
open sandblasting units, no protective
clothing. I also used alot [sic] of acetone
and other degreasing agents and worked in a
small room off of a large plating room.

She did not mention asthma, lung disease, or pulmonary symptoms of

any kind.

After receiving a written response to her letter in late

2001 or early 2001, Genereux called Senator Reed's office. During

the ensuing conversation, a staff member asked Genereux "whether

she had ever been tested for CBD [chronic beryllium disease]."

According to Genereux, this was the first time she had ever heard

of chronic beryllium disease. Senator Reed's office advised

Genereux to call the Department of Labor.7 Officials at the

7
On January 22, 2001, Senator Reed's office mailed
Genereux a letter that stated, "Pursuant to your request for
information concerning compensation for Berylium [sic] exposure,
you should contact 1-877-447-9756 and leave your name and address
for further information."

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Department of Labor told Genereux about National Jewish Medical

Center ("National Jewish"), a Colorado facility experienced in the

treatment of chronic beryllium disease, and instructed her to call.

Genereux contacted National Jewish sometime in early 2001.

National Jewish recommended to Genereux that she take a

blood test, known as the BeLPT test, to determine whether she was

sensitized to beryllium. National Jewish also provided her with a

booklet explaining the causes, symptoms and treatment of chronic

beryllium disease. As the booklet explained,

Beryllium sensitization often leads to
disease, even in people who are no longer
working with beryllium. Most people with
beryllium sensitization have granuloma scars
in their lungs, and sometimes in other organs
also. . . . Once a person has been exposed to
beryllium, there is a lifelong risk of
developing the disease.

The booklet quantified this risk, stating that "[o]nly 1-6% of

exposed people will develop beryllium disease," but noted that

"certain work tasks have been associated with disease rates as high

as 16%." Those who were sensitized, it said, but did not develop

the disease, "do not need treatment" but "need to be checked by a

doctor regularly for signs of disease."

On June 8, 2001, Genereux met with her primary care

physician, Dr. David Ashley. Notes from the meeting indicate that

Genereux again raised concerns about "[p]otential exposure [to]

Acetone, Berrilium [sic], Asbestos." Genereux provided Dr. Ashley

with the National Jewish booklet on chronic beryllium disease, an

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illness previously unfamiliar to him. According to Dr. Ashley,

Genereux then connected beryllium exposure to her lung disease:

Q. And did she suggest that there was some
kind of problems that she was encountering
that she thought was related to potential
Beryllium exposure?
A. Her breathing problems. I mean, she had
childhood asthma that basically reoccurred as
an adult, and she was labeled as an asthmatic,
and she was wondering whether this, you know,
could be something other than asthma . . . .

On June 19, 2001, Genereux again met with Dr. Ashley.

Notes from the meeting indicate that Dr. Ashley and Genereux

discussed her exposure to beryllium during her employment at

Raytheon, as well as the BeLPT test. Dr. Ashley's office ordered

a BeLPT test kit from National Jewish. On June 20, 2001, Genereux

had blood drawn at the laboratory in Dr. Ashley's office for use in

a number of tests, including the BeLPT test. Dr. Ashley's office

sent the completed BeLPT test kit to National Jewish in Colorado,

where it was analyzed on June 23, 2001. Test results were

classified as "abnormal." Genereux had a second BeLPT test

analyzed on February 2, 2002, whose results were also abnormal. In

late August 2002, Genereux traveled to Colorado for further

testing, where she was diagnosed with chronic beryllium disease.8

8
When Genereux returned from Colorado, she initially
sought treatment from a local pulmonologist who had seen her prior
to the diagnosis. It seems that questions persisted about the
diagnosis; the local pulmonologist, Dr. Corrao, was "not convinced"
that Genereux had chronic beryllium disease. Genereux eventually
left Dr. Corrao's care.

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 II.

On June 22, 2004, Genereux, her husband Barry Genereux,

and their two children filed suit in Massachusetts Superior Court

against Brush, several other beryllium manufacturers, and Raytheon.

On September 7, 2004, plaintiffs amended their complaint, naming

American Beryllia and Hardric as additional defendants. In the

amended complaint, Genereux asserted seven causes of action against

the defendants: negligence; breach of warranty; failure to warn;

strict liability for ultrahazardous or abnormally dangerous

activities; breach of Massachusetts's consumer protection statute,

Massachusetts General Laws chapter 93A; fraudulent concealment; and

conspiracy. Barry Genereux and the Genereux children asserted six

additional counts, based on liability for medical monitoring, loss

of consortium, and breach of chapter 93A.

On October 8, 2004, Brush and another defendant removed

the case to federal district court, asserting jurisdiction under

the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1).9

9
Under the Federal Officer Removal Statute,

A civil action . . . commenced in a State court against
any of the following may be removed by them to the
district court of the United States for the district and
division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any
officer (or any person acting under that officer) of the
United States or of any agency thereof, sued in an
official or individual capacity for any act under color
of such office or on account of any right, title or
authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the collection

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Subsequently, the district court dismissed the sole count against

Raytheon, a claim of liability for medical monitoring. It also

dismissed counts based on theories of strict liability and

conspiracy, and all defendants other than Brush, American Beryllia,

and Hardric. Nine counts remained: (1) negligence; (2) breach of

warranty; (3) failure to warn; (4) breach of chapter 93A towards

Genereux; (5) fraudulent concealment; (6) loss of consortium based

on negligence; (7) loss of consortium based on breach of warranty;

(8) loss of consortium based on failure to warn; and (9) breach of

chapter 93A towards Barry Genereux and the Genereux children.

After the parties conducted discovery, the three

remaining defendants moved for summary judgment. Defendants made

four arguments in common: (A) that the plaintiffs' claims were

barred by the statute of limitations; (B) that the plaintiffs'

claims were barred by the sophisticated user doctrine and the bulk

supplier doctrine; (C) that Genereux did not work with their

products; and (D) that the defendants were not the proximate cause

of the plaintiffs' injuries. American Beryllia also argued that it

of the revenue.

28 U.S.C. § 1442(a)(1). Here, Brush's removal was based on its
assertion that it was a "person acting under" an officer of the
United States, because the beryllium-containing products it
supplied to Raytheon were used in manufacturing "military
hardware." See Camacho v. Autoridad de Telefonos de P.R., 868 F.2d
482, 486-87 (1st Cir. 1989). Removal under this statute does not
require that all defendants agree to removal. Ely Valley Mines,
Inc. v. Hartford Acc. & Indemn. Co., 644 F.2d 1310, 1315 (9th Cir.
1981).

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was entitled to summary judgment because under Massachusetts law,

it was not subject to successor liability as a purchaser of assets.

Taking the facts in the light most favorable to Genereux,

the district court concluded that Genereux had "performed

activities on products that contained beryllium," such as

"sandblasting, welding, filing, and brazing," which had

"generat[ed] airborne beryllium dust that Genereux inhaled." It

also concluded that the defendants had each supplied Raytheon with

products containing beryllium, including windows, pins, collectors,

rectangular plates, discs, rods, tubes, and "beryllium metal

emitter rings." The court assumed, without deciding, that American

Beryllia was subject to successor liability for injuries caused by

products produced by General Ceramics, noting, "[t]he factual

record on the issue of successor liability is not sufficiently for

resolution [sic]."

The district court then granted the motion for summary

judgment on all nine remaining counts. The court held that the

plaintiffs' common-law claims (remaining counts (1)-(3) and (5)-

(8)) were time-barred. It noted that the common-law claims were

subject to a three-year statute of limitations, but that under

Massachusetts's "discovery rule," the limitations period only began

to run when Genereux knew or had sufficient notice that she had

been harmed, and knew or had sufficient notice of the cause of the

harm. After describing Genereux's appointments with Dr. Ashley in

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June 2001, the court concluded that by June 19, 2001, at the

latest, Genereux was aware that she might have chronic beryllium

disease and that she was exposed to beryllium while at Raytheon.

Thus, "[b]y June 19, 2001, she was sufficiently aware of the

possibility that she contracted the disease through exposure to

beryllium at Raytheon to start the statute of limitations." Based

on that start date, the court held that limitations period ended on

June 19, 2004, three days before Genereux filed suit.

The court held that the plaintiffs' statutory claims

under chapter 93A (remaining counts (4) and (9)), which were

subject to a four-year statute of limitations, were timely filed

but barred by the sophisticated user doctrine. Plaintiffs' theory

of liability under chapter 93A turned on the defendants' failure to

warn of the dangers of their products.10 The court noted that the

sophisticated user doctrine relieves a manufacturer of liability

for failing to warn when the "end user" knows or reasonably should

know of a product's dangers. After determining that Raytheon was

the end user, the court concluded that Raytheon "had substantial

knowledge of the dangers of beryllium exposure, manifest in three

10
In motions to the district court, plaintiffs asserted
that defendants' failure to warn constituted an "unfair or
deceptive act" within the meaning of chapter 93A, section 2(a).
See Mass. Gen. Laws ch. 93A, § 2(a) (declaring unlawful "unfair or
deceptive acts or practices in the conduct of any trade or
commerce"); ch. 93A, § 2(c) (granting Massachusetts attorney
general the authority to make rules and regulations interpreting
section 2(a)); 940 Mass. Code Regs. 3.05 (defining "general
misrepresentations").

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ways: knowledge held by employees; Raytheon's own policies and

internal memoranda; and warnings provided to Raytheon by its

suppliers." In addition, "Raytheon was a sophisticated company,"

which "ranked fifty-third in Fortune Magazine's Top 100 List of

American Companies," and had a "keen appreciation of the dangers of

beryllium, for which it ordained prophylactic procedures decades

before Genereux's employment."

Plaintiffs timely appealed and now ask us to reverse.

They contend that the district court erred in determining that the

statute of limitations expired before they filed suit and that the

sophisticated user doctrine relieves the defendants from liability.

Defendants argue that the district court properly resolved the

issues it addressed, and raise as alternative grounds for upholding

summary judgment the bulk supplier doctrine, plaintiffs' failure to

show that Genereux was exposed to any products manufactured by the

defendants, and the fact that defendants were not the proximate

cause of Genereux's injuries. American Beryllia also argues that

it is not subject to successor liability for injuries caused by

exposure to General Ceramics's products.

III.

We review de novo a district court's award of summary

judgment. Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215,

217 (1st Cir. 2008). "Summary judgment is appropriate when 'the

pleadings, depositions, answers to interrogatories, and admissions

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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 judgment as a matter of law.'" Mass. Eye & Ear

Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 239 (1st

Cir. 2005) (quoting Fed. R. Civ. P. 56(c)). There exists a

"genuine" issue of fact when "the evidence about the fact is such

that a reasonable jury could resolve the point in favor of the

nonmoving party." S.E.C. v. Ficken, 546 F.3d 45, 51 (1st Cir.

2008) (internal quotation marks and citation omitted).

A. Statute of Limitations

Under Massachusetts law, "actions of tort" and "actions

of contract to recover for personal injuries" are subject to a

three-year statute of limitations. Mass. Gen. Laws ch. 260, § 2A.

The counts in the amended complaint of negligence, breach of

warranty, failure to warn, and fraudulent concealment fall into

these categories and are all governed by this statute. Fidler v.

Eastman Kodak Co., 714 F.2d 192, 196 (1st Cir. 1983) (failure to

warn); Olsen v. Bell Tel. Labs., Inc., 445 N.E.2d 609, 611 (Mass.

1983) (negligence and breach of warranty); Noble v. Cournoyer, No.

CA 946043, 1996 WL 1329385, at *2 (Mass. Super. Ct. Aug. 13, 1996)

(fraudulent concealment). Claims for loss of consortium are also

subject to the three-year limitations period under section 2A.

Olsen, 445 N.E.2d at 613. In contrast, claims under chapter 93A

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are subject to a four-year statute of limitations. Mass. Gen. Laws

ch. 260, § 5A.

1. Negligence, breach of warranty, failure to warn,
fraudulent concealment

The limitations period specified in section 2A commences

"after the cause of action accrues." Mass. Gen. Laws ch. 260, §

2A. Normally, a cause of action for personal injury will accrue at

the time of injury. Koe v. Mercer, 876 N.E.2d 831, 836 (Mass.

2007); Riley v. Presnell, 565 N.E.2d 780, 784 (Mass. 1991).

However, under the discovery rule, "a cause of action does not

accrue until the plaintiffs know or reasonably should have known

that they were injured as a result of the defendant's conduct."

Cornell v. E.I. Du Pont de Nemours & Co., 841 F.2d 23, 24 (1st Cir.

1988) (citing Olsen, 445 N.E.2d at 611-12). Actual knowledge is

not the standard, but "what a reasonable person in [the

plaintiff's] position would have known or on inquiry would have

discovered." Bowen v. Eli Lilly & Co., 557 N.E.2d 739, 743 (Mass.

1990). The Supreme Judicial Court has analyzed this rule as having

two components: "a plaintiff [must] have (1) knowledge or

sufficient notice that she was harmed and (2) knowledge or

sufficient notice of what the cause of harm was." Bowen, 557

N.E.2d at 742; see also Fidler, 714 F.2d at 198 ("Such notice [to

start the statute of limitations] includes not only knowledge that

one has been injured but knowledge of its cause -- that plaintiff

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'has been harmed as a result of the defendant's conduct.'" (quoting

Olsen, 445 N.E.2d at 611)); Riley, 565 N.E.2d at 784-85.

Application of the discovery rule ordinarily involves

questions of fact and therefore "'in most instances will be decided

by the trier of fact.'" In re Mass. Diet Drug Litig., 338 F. Supp.

2d 198, 204 (D. Mass. 2004) (quoting Riley, 565 N.E.2d at 783); see

also Wolinetz v. Berkshire Life Ins. Co., 361 F.3d 44, 49 (1st Cir.

2004) (same). In particular, application of the discovery rule

involves determining "what the plaintiff knew or should have

known[, which] is a factual question that is appropriate for the

trier of fact." Koe, 876 N.E.2d at 836; see also Borden v. Paul

Revere Life Ins. Co., 935 F.2d 370, 376 (1st Cir. 1991)

(characterizing the determination of whether the plaintiff should

have known of an injury as "a fact-dominated enterprise"); Castillo

v. Mass. Gen. Hosp., 649 N.E.2d 788, 790 (Mass. App. Ct. 1995).

Determining when a plaintiff had notice of the likely cause of her

injury is one example of such a determination. See Riley, 565

N.E.2d at 786 ("A reasonable fact finder . . . could find that

Riley did not make the causal link . . . .").

Appellants argue that the district court erred in

determining that the limitations period began to run on June 19,

2001, because Genereux did not know by this date that she had

chronic beryllium disease, and thus lacked notice that she was

injured. Appellees counter that under Massachusetts law, a disease

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diagnosis is not necessary to trigger the statute of limitations.

However, this case does not require us to decide whether a disease

diagnosis is ever necessary for a plaintiff to have notice that she

has been injured. Genereux has long exhibited symptoms associated

with chronic beryllium disease. Her knowledge "that she had

sustained substantial physical harm" is not at issue. See Bowen,

557 N.E.2d at 741. Rather, the question is when Genereux had

sufficient notice that her lung disease was caused by the

appellees' conduct.

In Bowen, the Supreme Judicial Court considered for the

first time the case of a plaintiff who was "well aware that she had

sustained substantial physical harm," but may have lacked

"sufficient[] . . . notice as to the cause of her physical harm."

Bowen, 557 N.E.2d at 741. The plaintiff in Bowen developed a

malignant tumor and required extensive surgery to remove it. Many

years earlier, her mother had taken the drug diethylstilbestrol

during pregnancy. Id. at 740. The question before the court was

when the plaintiff had sufficient notice that her tumor was caused

by diethylstilbestrol to trigger the statute of limitations. Id.

at 741. Citing the plaintiff's possession of materials suggesting

"the prospect of a significant causal connection" between

diethylstilbestrol and her "exceedingly rare" condition, the court

concluded that the plaintiff acquired sufficient notice of the

cause of her injury outside the limitations period. Id. at 743.

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 Construing Massachusetts law, this court has previously

characterized the level of notice of cause sufficient to trigger

the statute of limitations as notice of "likely cause." Fidler,

714 F.2d at 199; see also Cornell, 841 F.2d at 24 ("[T]he level of

notice required to start the statute running has been defined as

likely cause." (internal quotation marks and citation omitted)).

Massachusetts courts, including the Supreme Judicial Court, have

repeatedly cited this language in their own decisions. See Bowen,

557 N.E.2d at 742; see also Demoulas v. Demoulas Super Mkts., Inc.,

677 N.E.2d 159, 175 n.27 (Mass. 1997); Krasnow v. Allen, 562 N.E.2d

1375, 1379 (Mass. App. Ct. 1990); Lear-Heflich v. Schwartz, 485

N.E.2d 692, 694 (Mass. App. Ct. 1985); Murphy v. Novartis Consumer

Health, Inc., No. 01-1702-A, 2005 WL 2319157, at *3 (Mass. Super.

Ct. Aug. 10, 2005); Locke v. Jones, No. 022579B, 2005 WL 1009494,

at *2 (Mass. Super. Ct. Mar. 23, 2005).

Appellants argue, as they did below, that Genereux's

asthma diagnosis is relevant to determining when she had sufficient

notice that her lung disease was "related" to beryllium exposure.11

The district court did not mention asthma in its analysis of the

11
Appellee Brush contests that appellants made this
argument below. In appellants' Memorandum of Law in Opposition to
Brush's Motion for Summary Judgment, they argued: "The facts show
that Suzanne too [sic] all reasonable steps to diagnose her
condition, but it was not until 2002, less than three years before
she commenced this action, that she learned the true cause of her
lung problems." Shortly thereafter, appellants discussed
Genereux's asthma diagnosis.

-21-
limitations issue. Nor have appellees addressed the matter,

outside a footnote, in their briefing to this court.12 We agree

with the appellants that Genereux's asthma diagnosis is

significant. At the time Genereux first learned of chronic

beryllium disease, she had long suffered from asthma symptoms. In

fact, Genereux was diagnosed with asthma as a child, years before

she was exposed to beryllium. This diagnosis was confirmed on

repeated occasions when Genereux was an adult. She was treated for

asthma during her employment at Raytheon and afterwards, at times

by a specialist. In light of these facts, we cannot say, as we

must to affirm, that no reasonable jury could conclude that

Genereux lacked notice, even after June 19, 2001, that her symptoms

were "likely caused" not by asthma, but by another disease. A

reasonable jury could conclude that Genereux's common-law claims

were timely. Thus there exists a genuine issue of material fact

about the timeliness of those claims.13

Close attention to the record supports the view that a

material issue exists in this case about when Genereux had notice

that the likely cause of her breathing problems was exposure to

12
In the footnote, Brush argues that Genereux's asthma
diagnosis does not affect the statute of limitations because she
was never told by a physician that beryllium was unrelated to her
condition. In fact, the record belies this contention. See supra
note 9; infra note 15.
13
A reasonable jury could also conclude that Genereux's
common-law claims were untimely.

-22-
beryllium. Sometime before June 8, 2001, National Jewish provided

Genereux with the booklet on chronic beryllium disease. According

to the booklet, only 1-6% of people exposed to beryllium contract

chronic beryllium disease, and "certain work tasks" are "associated

with disease rates as high as 16%." Even if Genereux believed she

had a 16% chance of having chronic beryllium disease, she had been

told since she was a child that she had asthma, and might have

reasonably concluded that while there was a chance her symptoms

were caused by exposure to beryllium, it was not the likely cause

of her injury. This conclusion is fully consistent with Dr.

Ashley's testimony that during Genereux's June 8 appointment, she

"was wondering whether [her condition], you know, could be

something other than asthma."14

Genereux's decision, on June 19, 2001, to take the BeLPT

test does not compel the conclusion, as the summary judgment

standard requires, that she then had notice beryllium was the

likely cause of her injury. On the contrary, a reasonable juror

could view the BeLPT test as merely an initial step in exploring

the possibility of chronic beryllium disease. It was described

14
Moreover, the local pulmonologist who treated Genereux
was apparently confident enough in the asthma diagnosis that he did
not believe Genereux had chronic beryllium disease even after she
was diagnosed at National Jewish in 2002. Physicians at National
Jewish also expressed uncertainty about which of Genereux's medical
events were attributable to chronic beryllium disease. They wrote,
"it is difficult to determine if her hospitalizations for
respiratory problems were truly due to asthma, or whether she was,
in fact, suffering symptoms of chronic beryllium disease . . . ."

-23-
this way in the National Jewish booklet. Thus, while we agree with

the district court that "[a]ctual knowledge" of cause is "not the

triggering event for the statute of limitations," we disagree that

Genereux's decision to take the BeLPT test to explore the mere

possibility that her symptoms were not caused by asthma, but by

beryllium, shows as a matter of law that she was "sufficiently

aware of the possibility that she contracted the disease through

exposure to beryllium at Raytheon to start the statute of

limitations."

However, on June 23, 2001, Genereux's BeLPT test was

analyzed at National Jewish and the results were classified as

abnormal. The record does not indicate when National Jewish

apprised Genereux of the results of her test. Whatever that date,

it was arguably at this point that Genereux had notice not simply

that beryllium might have caused her lung disease, but that it was

the likely cause. If the limitations period did begin to run on

June 23, 2001, then Genereux's common-law claims, filed on June 22,

2004, were timely filed.

We need not decide whether the statute of limitations on

Genereux's common-law claims actually began to run on June 23,

2001. Instead, we hold that, on this record, a reasonable juror

could conclude that Genereux first had sufficient notice of the

cause of her injury after June 22, 2001. In light of Genereux's

asthma diagnosis and the low probability of developing chronic

-24-
beryllium disease, deciding when Genereux had notice that her

symptoms were likely caused by beryllium "involves a decisional

process fraught with resolution of factual issues," Castillo, 649

N.E.2d at 790, such as how confident a reasonable person would have

been during June 2001 of Genereux's previous asthma diagnosis, see

Bowen, 557 N.E.2d at 743. Resolution of such factual issues is

"peculiarly within the province of the trier of fact."15 Castillo,

649 N.E.2d at 790. The district court should not have resolved the

statute of limitations issue against Genereux on this summary

judgment record.

Applying the "likely cause" standard, we came to the same

conclusion in Cambridge Plating Co. v. Napco, Inc., 991 F.2d 21, 29

(1st Cir. 1993), where, on facts similar to this case, we reversed

the district court's entry of summary judgment in favor of the

defendant. The plaintiff, Cambridge Plating, purchased a

wastewater treatment system from the defendant, Napco. Cambridge

Plating became aware early on that the system did not sufficiently

15
Our holding does not excuse plaintiffs previously
diagnosed with a disease from being "willful[ly] ignoran[t]" of the
possibility that their condition was caused instead by the
defendant's conduct. See In re Mass. Diet Drug Litig., 338 F.
Supp. 2d at 203-04. Willful ignorance does not toll the statute of
limitations. Id. But neither does Massachusetts law require
plaintiffs to have "the gift of prophecy" or to investigate every
"speculati[on]" about their health. See Gore v. Daniel O'Connell's
Sons, Inc., 461 N.E.2d 256, 259 (Mass. App. Ct. 1984). We
acknowledge that it can be difficult to separate willful from
reasonable ignorance, and speculation from inevitable inference.
It is for just this reason, we believe, that on this summary
judgment record this matter should go to the jury.

-25-
clean its wastewater to meet regulatory requirements. However,

during the initial "debugging" of the system and afterwards,

analysis of the problem focused on operation and not possible

defects. The question before the court was when Cambridge Plating

had sufficient notice that the system's problems were caused by

manufacturing defects to trigger the statute of limitations. We

reasoned:

When the problems persisted despite
Napco's announcement that debugging was
complete, two explanations theoretically were
available. Either the system itself was
defective, or it was being operated
improperly. At this point, however, the two
possibilities were not equally weighted.
Cambridge Plating knew that the system was
technically complex and required sensitive
operation. And Napco's only response to
Cambridge Plating's inquiries was to suggest
ways to improve operation.
In these circumstances, we do not
believe Massachusetts law requires a finding
that Cambridge Plating was on notice of the
system's defects. A plaintiff is sufficiently
aware of her cause of action, and thus should
have discovered it, once she has received
"notice of likely cause," Fidler, 714 F.2d at
199 (quoted in Bowen, 408 Mass. at 207-08, 557
N.E.2d 739).

Id. at 29. As we then explained, the "likely cause" standard does

not require knowledge that the defendant is "the culprit," but a

basis for identifying it as a "suspect." Where Cambridge Plating

could not choose between the two possible explanations for the

system's failure, it lacked such a basis and a material issue

existed for the jury to resolve.

-26-
 2. Loss of consortium

Like claims of negligence, breach of warranty, failure to

warn, and fraudulent concealment, actions for loss of consortium

are subject to the three-year statute of limitations under Mass.

Gen. Laws chapter 260, section 2A. Olsen, 445 N.E.2d at 613.

Under Massachusetts law, loss of consortium is independent from the

underlying claim of negligence brought by the injured spouse. Id.

at 612. For this reason, the date of accrual of a loss of

consortium claim and the underlying claim "must be determined

separately." Id. at 613; see also Lareau v. Page, 39 F.3d 384, 390

(1st Cir. 1994); Angelini v. OMD Corp., 575 N.E.2d 41, 43 n.6

(Mass. 1991). While loss of consortium and the underlying claim

will usually accrue at the same time, this may not always be true.

Olsen, 445 N.E.2d at 613. A consortium action may be timely even

though the spouse's underlying negligence action is time-barred.

See id.; Fidler v. E.M. Parker Co., 476 N.E.2d 595, 603-04 (Mass.

1985) (discussing this possibility).

In its Memorandum & Order granting summary judgment, the

district court did not determine separately the date of accrual of

the loss of consortium claims and the underlying claims brought by

Genereux. Rather, it denied all the "common law claims" on the

basis of one date of accrual. This was error. We make no

determination here about the date of accrual of the loss of

consortium claims brought by Barry Genereux and the Genereux

-27-
children, and leave this matter to be determined in the district

court.

B. Sophisticated User Doctrine

1. Legal principles

Under Massachusetts law, a manufacturer of a product has

a duty to warn foreseeable users of dangers in the use of that

product of which the manufacturer knows or reasonably should know.

Bavuso v. Caterpillar Indus., Inc., 563 N.E.2d 198, 201 (Mass.

1990). However, under the sophisticated user doctrine, a

manufacturer has no duty to warn of a product's latent

characteristics or dangers when the end user knows or reasonably

should know of those dangers. See Carrel v. Nat'l Cord & Braid

Corp., 852 N.E.2d 100, 108-09 (Mass. 2006); Hoffman v. Houghton

Chem. Corp., 751 N.E.2d 848, 854-55 (Mass. 2001); Restatement

(Second) of Torts § 388, cited in Carrel, 852 N.E.2d at 109.

"[T]he relevant inquiry turns on the end user's level of

sophistication." Hoffman, 751 N.E.2d at 854.

The sophisticated user doctrine is sometimes explained as

a corollary of the "open and obvious" doctrine. See, e.g., Carrel,

852 N.E.2d at 109 (citing Koken v. Black & Veatch Constr., Inc.,

426 F.3d 39, 45-46 (1st Cir. 2005) (applying Maine law)). Under

the open and obvious doctrine, a manufacturer has no duty to warn

when the danger presented by a product is obvious. Bavuso, 563

N.E.2d at 201. A warning under those circumstances would not

-28-
reduce the likelihood of injury. Id. Similarly, the sophisticated

user defense applies where a warning is unlikely to have a

deterrent effect. See Hoffman, 751 N.E.2d at 855. The end user

already perceives the danger because of his sophistication.

Restatement (Second) Torts § 388 cmt. k (1965) ("[T]he condition

[is] . . . one which only persons of special experience would

realize to be dangerous").

Significantly, Massachusetts recognizes a sophisticated

user defense when the end user knows or reasonably should know of

the particular danger posed by the product. For example, in Carrel

a camper was injured when he pulled on the end of a bungee cord,

causing a knot in the cord to unwind and the cord to suddenly

retract, striking him in the eye. Carrel, 852 N.E.2d at 103. At

trial on the camper's claim for failure to warn, the jury was

instructed on the sophisticated user defense, and the defendant

prevailed. The Supreme Judicial Court upheld the instruction on

appeal. It noted that it was the practice of the cord's

distributor (not the manufacturer) to include in its shipments a

document warning against using the bungee cord in a zip-line course

in the precise manner that the camp had used it. The court also

pointed out that a consultant had visited the camp, learned of the

bungee cord's use, and disapproved, specifically instructing a camp

employee to use a different kind of knot than the one which later

unwound, causing the injury. Id. at 111-12. These warnings proved

-29-
that the end user knew "of the particular danger to be guarded

against, in which case an additional warning [from the

manufacturer] would have been superfluous." Id. at 112.

Conversely, where there is a lack of proof that the end

user knew of the particular danger, courts have upheld a jury's

verdict of liability against a manufacturer for failure to warn

against a sophisticated user defense.16 Similarly, in Koken, 426

F.3d at 39, we held that, under Maine law, a welder was not a

sophisticated user of fire blankets despite his awareness that

welding created a fire hazard, since a reasonable fact-finder could

have found that he was unaware of the limitations of the particular

fire blanket he was using.17 We agreed with the district court that

16
See Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 29
(1st Cir. 2004) (applying Massachusetts law) ("Gillespie admitted
that the still-spinning blade was visible and audible, and that he
'understood' that blades coasted, as any experienced user would
assuredly know . . . . The jury might have concluded from
Gillespie's further testimony . . . that he was not 'fully aware'
. . . of the duration of the danger and that a more explicit or
conspicuous warning would have heightened his awareness and
prevented the accident." (citations omitted)); Knowlton v. Deseret
Med., Inc., 930 F.2d 116, 122 (1st Cir. 1991) (applying
Massachusetts law) (concluding that a reasonably prudent heart
surgeon might not have appreciated the danger of puncture posed by
a particular catheter-threading technique despite understanding the
need to thread the catheter with "great care" and being warned by
the manufacturer that the needle could cut the catheter); see also
Marois v. Paper Converting Mach. Co., 539 A.2d 621, 624 (Me. 1988)
("[T]he jury could have rationally found that, although generally
aware of the inherent danger of the operation, the specific danger
of the machine's design and clearing process was not obvious to, or
known by, the Plaintiff." (emphasis added)).
17
See also Gray v. Badger Mining Corp., 676 N.W.2d 268, 277
(Minn. 2004) (affirming district court's denial of defendant's

-30-
the fire hazard posed by welding was obvious "to both laymen and

experienced welders." Id. at 45. We disagreed, however, that an

awareness of the general hazard sufficed to make the welder a

sophisticated user of the defendants' fire blankets:

[I]n holding that the duty to warn was
precluded by the known hazard of fire in torch
cutting, we think that the district court gave
too broad a scope to the open and obvious and
sophisticated user doctrines. The fact that
the risk of accident is well known does not
preclude a duty to warn of particular risks,
different from the general risk, if those
risks are not open and obvious or known by a
reasonable sophisticated user. For example,
the risk of vehicle accidents on the highway
is well known, and drivers of commercial
trucks are sophisticated users of their
equipment. There is no duty to warn of the
general risk of an accident . . . But there
may be a duty to warn that loading a
particular kind of truck in a particular way
could increase the risk of rollover (if that
risk is not generally appreciated). In each
case the analysis must focus on the particular
risk and whether that risk is open or obvious
or known to the sophisticated user.

Id. at 45-46. We then observed that "the necessity of . . . a

particularized analysis" makes it important to "defin[e] the

claimed risk and the warning so that the issues of duty to warn and

causation can be addressed intelligently." Id. at 46.

summary judgment motion and noting, "[plaintiff's] general
knowledge of the risk was little more than the intuitive sense of
danger from experiencing dust in the foundry environment. More
specifically, there is no evidence that he knew that disposable
respirators were ineffective in preventing silicosis in a foundry
environment.").

-31-
 Although these general principles are relevant here, we

must emphasize a distinctive feature of this case. For the purpose

of analyzing the sophisticated user defense, the plaintiff Genereux

is not the end user whose sophistication is at issue. The district

court concluded that Raytheon was the end user of appellees'

products. Appellants did not challenge this determination.

Although Genereux relies on the duty to warn in her claims against

the appellees, it follows that Brush, American Beryllia, and

Hardric had no duty to warn Genereux of the dangers associated with

using their beryllium products if they prevail on their

sophisticated user defense -- that is, if they establish that

Raytheon knew or reasonably should have known of those dangers.

See Kenneth M. Willner, Note, Failures to Warn and the

Sophisticated User Defense, 74 Va. L. Rev. 579, 590 (1988) ("Under

the duty approach [to the sophisticated user defense], a seller has

no duty to warn an ultimate user when intermediate purchasers are

knowledgeable.").18

18
It appears unsettled under Massachusetts law whether an
intermediate party, such as Raytheon, is always the end user for
purposes of the sophisticated user defense in these
employer/employee cases. See, e.g., Barbosa v. Hopper Feeds, Inc.,
537 N.E.2d 99, 102 (Mass. 1989) (observing, in a case where the
plaintiff sued the manufacturer of a product purchased by her
employer, "It is true that a manufacturer has no duty to warn a
plaintiff who is fully aware of the hazards posed by a product.
This is not such a case." (internal citations omitted)); Slate, 510
N.E.2d at 252 (noting that "the plaintiffs failed to present
evidence that Bethlehem [the defendant supplier] knew of a danger
that Slate [the plaintiff employee of the purchaser] did not
appreciate.").

-32-
 Normally, the existence of a duty of care is a question

of law decided by a judge, not a jury. Cottam v. CVS Pharmacy, 764

N.E.2d 814, 819 (Mass. 2002); W. Page Keeton et al., Prosser &

Keeton on the Law of Torts 236 (5th ed. 1984) ("[W]hether, upon the

facts in evidence, such a relation exists between the parties that

the community will impose a legal obligation upon one for the

benefit of the other . . . is entirely a question of law, . . . and

it must be determined only by the court."). However, in the case

of the sophisticated user doctrine, as applied in Massachusetts,

the existence of a duty to a plaintiff such as Genereux depends on

the sophistication of the intermediary employer, which is a factual

matter that may be resolved by the jury. See Hoffman, 751 N.E.2d

at 855 ("[T]he sophisticated user doctrine allows a fact finder to

determine that no such duty was owed.").

In this case, the focus of the sophisticated user defense

is the knowledge of the intermediary in the three-party situation

involving Genereux as an employee, Raytheon as an employer, and

appellees as manufacturers of products for use in Raytheon's

manufacturing operations. Generally, an intermediary's knowledge

may come from many sources. Sometimes the analysis will focus on

what the intermediary already knows, and sometimes it will depend

on what the manufacturer tells the intermediary. Here, appellees

have placed the focus on themselves by introducing into the record,

and relying on, evidence of warnings they provided Raytheon.

-33-
Nevertheless, we are not making a determination of whether the

appellees exercised due care in warning Raytheon about their

beryllium products; the question is what Raytheon knew, or

reasonably should have known, as a result of the warnings. See

Willner, supra, at 592 ("[T]he defense focuses on the actual

knowledge of a purchaser or user, rather than . . . the

reasonableness of the sellers' conduct in warning or in failing to

warn.").

2. The particular dangers and Raytheon's knowledge of
those dangers

Appellees argue that the particular danger to be guarded

against was chronic beryllium disease. The record is clear that

Raytheon knew that exposure to beryllium dust or fumes could cause

chronic beryllium disease. However, on the facts of this case,

that proposition is stated too broadly. Following Carrel and

Koken, we must analyze "the particular danger[s] to be guarded

against" in use of the appellees' beryllium products. Carrel, 852

N.E.2d at 112.

Appellants argue that Raytheon was unaware of five

particular dangers:

(1) Raytheon believed that beryllium
operations should be air-sampled19 to ensure

19
Air sampling is a method of evaluating the concentration
of airborne beryllium in a particular area. There are several
different methods for air sampling, which produce divergent
measures of beryllium exposure. In one method, a "high volume
sampler" is used to draw air through a filter placed in the

-34-
 compliance with the Occupational Health and
Safety Administration's "Permissible Exposure
Limit" ("PEL") only when they produced visible
amounts of dust, while in fact all beryllium
operations should be periodically air-sampled,
and a workspace may be dangerous to human
health even though no dust is visible;

(2) Raytheon believed that local exhaust
ventilation20 was required only for operations
that produced visible dust, while in fact
other beryllium operations should also be
carried out under local exhaust ventilation;

(3) Raytheon was unaware that beryllium dust
can contaminate work clothing, which, if worn
home, can cause injury to family members;

(4)Raytheon was unaware that polishing
beryllium metals without protective measures
is unsafe; and

(5)Raytheon was unaware that occupational
exposures to an airborne concentration of 2
µg/m3 of beryllium dust is unsafe.21

breathing zone of a worker. The filter is then analyzed for
beryllium contaminants. Another method is referred to as "personal
sampling," and aims to determine the amount of beryllium to which
each individual worker is exposed.
20
Local exhaust ventilation is a means of ventilating a
workspace to remove contaminants. It is sometimes accomplished by
vacuuming out the dust generated by an operation through a hood
placed over the workspace. In contrast, "general ventilation" is
accomplished by an "air handling device" that circulates and
conditions air in a defined area. General ventilation can enhance
the risk posed by uncontrolled beryllium dust by circulating it
throughout the area serviced by the air handling device, thereby
increasing the number of individuals exposed to the dust.
21
In their argument to this court, appellees do not contest
that any of these practices or standards are in fact dangerous to
human health.

-35-
 We agree with the district court that Raytheon's

awareness of the dangers posed by the beryllium products it used

can be gleaned from the knowledge of its employees, its policies as

evidenced by internal memoranda, and warnings provided by

suppliers. We also agree with the district court that these

categories of evidence establish that (1) Raytheon was aware that

beryllium was toxic; (2) Raytheon was aware that exposure to

beryllium could cause chronic beryllium disease; (3) Raytheon knew

that exposure to beryllium dust, in particular, was hazardous; and

(4) because of its concern about beryllium dust, Raytheon created

safety policies for opening packages containing beryllium and for

sandblasting beryllium oxide ceramics (even if these latter

policies were not followed). However, we disagree with the

district court that this evidence establishes, as a matter of law,

that Raytheon was a sophisticated user with respect to all of the

particular dangers identified by the appellants.

Instead, the record leads us to conclude that Raytheon

knew, or should have known, of the following particular dangers:

the need to air-sample all beryllium operations, the need to

provide local exhaust ventilation for operations besides those that

produced visible dust, and the risk to family members posed by work

clothing contaminated with beryllium dust. In each case,

undisputed record evidence proves that Raytheon knew or should have

known of the particular danger, often because it was informed of

-36-
the danger by the appellees, principally Brush.22 The sophisticated

user defense is dispositive for these particular dangers. However,

we also conclude that there are genuine issues of fact about

whether Raytheon knew or should have known of the last two

particular dangers identified above: (a) polishing beryllium metals

without protective measures, and (b) exposing workers to airborne

concentrations of 2 µg/m3 of beryllium dust.

a. Polishing beryllium metals

Appellants assert that Genereux polished beryllium metals

while working in the Waltham plant's Backward Wave Oscillator Lab.

They further assert that appellees failed to warn Raytheon of the

need for hygienic controls during polishing, and that this caused

Genereux injury.

There are two genuine issues of material fact about

appellants' claim that make the summary judgment disposition

22
For example, Brush recommended that Raytheon air-sample
"all operations where beryllium exposures exist" in a letter sent
June 7, 1984. This recommendation corroborated "Toxicity of
Beryllium," a document contained in Raytheon's files, which
recommended air sampling to determine the need for hygienic
controls on "any operation." On the matter of local exhaust
ventilation, Brush sent several letters to Raytheon during the
1980s stating that "[t]he preferred method of achieving [the 2
µg/m3] standard is by local exhaust ventilation." Early Raytheon
policies required local exhaust ventilation for operations that did
not produce visible dust, such as opening packages from beryllium
suppliers. Finally, the record is replete with warnings about the
danger posed to family members by beryllium-contaminated work
clothing. Documents containing such warnings include "Toxicity of
Beryllium," "Beryllium," "Beryllium and its Compounds," and the
1990 Brush Material Safety Data Sheet.

-37-
inappropriate. The first issue relates to Genereux's exposure to

beryllium dust generated by polishing. Appellee Brush asserts that

Genereux "simply made up" the fact that she polished beryllium.

However, Al Broadbent, Genereux's "direct supervisor" at Raytheon,

stated in his deposition that his team "would polish" finished

subassemblies. Whether Genereux herself was involved in this stage

of the process is ambiguous. Appellants' expert witness, John

Martyny, described Genereux's use of a Dremel tool and sandpaper on

beryllium metal parts as "polish[ing]." For purposes of summary

judgment, on this record, a reasonable fact-finder could conclude

that Genereux polished beryllium metals and was therefore exposed

to beryllium dust generated by polishing.

Second, there is a genuine issue of material fact about

when Raytheon knew or should have known that uncontrolled polishing

posed a danger to the health of exposed workers. Only a handful of

documents in the record expressly discuss polishing. First, on

April 19, 1989, Brush provided Raytheon with a report entitled

"Potential Beryllium Exposure While Processing Beryllia Ceramics

for Electronic Applications," dated September 1988. The report

states that "wet polishing" could possibly result in exposures

above 2 µg/m3. Second, Brush included a Material Safety Data Sheet

("MSDS") in every shipment of beryllium to Raytheon. The 1990

version of the MSDS stated, "[a]irborne exposure to [beryllium] in

excess of the occupational standards can occur when sintering,

-38-
machining, grinding, sanding, polishing, laser scribing and

trimming, chemical etching, crushing, or otherwise abrading the

surface of this material in a manner which generates finely divided

particles."23 (Emphasis added.)

Brush provided both of these warnings near the end of

Genereux's employment. It is possible that before April 1989, when

Brush sent Raytheon the "Potential Beryllium Exposure" report,

Raytheon was unaware of the danger posed by polishing, and that

during this time Genereux was exposed to beryllium dust generated

by polishing.24

Although the record does not show that Raytheon knew of

the dangers posed by polishing before April 1989, it is possible

that it should have known. Descriptions of polishing in the record

suggest that "polishing" may denote a wider array of operations

than the ordinary use of the term suggests. For example,

appellant's expert characterizes operations with sandpaper and a

Dremel tool as "polishing." If "polishing" includes sanding and

the use of a Dremel tool, then arguably there were earlier warnings

23
We note that Brush's 1992 MSDS warned that beryllium
exposure may occur during polishing, and Hardric's 2003 MSDS warned
of the need for local exhaust ventilation "or other controls
designed to prevent exposure" for polishing. Both warnings were
provided after Genereux left Raytheon.
24
In fact, since Genereux worked as a quality assurance
technician during her last year in the Waltham plant, the warnings
provided in 1990 may have been received when Genereux was no longer
exposed to beryllium dust produced by uncontrolled polishing
processes.

-39-
about polishing that Raytheon should have understood. In a letter

sent August 29, 1983, Brush warned Raytheon that "[a] potential

health risk can occur when grinding, machining, sanding, drilling,

brazing, welding, or otherwise abrading or treating the surface in

such a manner as to generate finely divided airborne particulate."

(Emphasis added.)

However, the record is far from clear about what

activities constitute "polishing." On the record developed thus

far, a reasonable jury could reject the conclusion that warnings

about sanding or abrasion were sufficient to warn about polishing

as well. Brush's practice was to warn users about specific

operations that posed a danger: "grinding, machining, sanding,

drilling, brazing, welding." Although Brush also warned users

against "otherwise abrading the surface in a manner which generates

finely divided particles," it later decided to include polishing in

the list of specific operations. We conclude that there is a

genuine issue of fact about whether Raytheon knew or should have

known of the dangers posed by uncontrolled polishing, at least

before April 1989.

b. Occupational exposure to 2 µg/m3

Appellants assert that Raytheon was unaware that

exposures of 2 µg/m3 or less could cause its employees to develop

chronic beryllium disease. They assert that appellees knew that

there might be a danger posed by such exposures to their products,

-40-
but that they failed to warn Raytheon. In response, appellees

point to evidence that Raytheon already knew of the danger posed by

exposures at 2 µg/m3.

There is a genuine issue of material fact as to whether

Raytheon was aware that exposures of 2 µg/m3 or less could cause

its employees to develop chronic beryllium disease. The record

contains evidence that Raytheon was aware that exposures at the 2

µg/m3 level were dangerous. Crucially, however, the record also

contains evidence that Raytheon distinguished between occupational

exposures and non-occupational (or "out-plant," or "neighborhood")

exposures, and believed that only non-occupational exposures at the

2 µg/m3 level posed a danger of chronic beryllium disease. Non-

occupational exposures may occur among individuals who live in the

vicinity of a plant where beryllium is processed. According to

"Beryllium Project," a Raytheon memorandum, non-occupational

exposures could cause disease at lower exposure levels because the

beryllium particles involved were smaller, and thus possessed

"greater reactivity." The same document stated that occupational

exposures of 2 µg/m3, in contrast, were "considered safe." Not

only did Raytheon's own documents expressly distinguish non-

occupational and occupational beryllium exposures, the record

contains multiple letters from Brush stating that no occupational

cases of chronic beryllium disease had been reported where plants

observed the 2 µg/m3 standard. In light of this evidence, a

-41-
reasonable jury could conclude that during the time of Genereux's

employment, Raytheon did not believe that workplace exposures of 2

µg/m3 or less posed a threat to its employees, such as Genereux.25

We excerpt the relevant evidence below. For purposes of

clarity, we have divided the evidence into two categories: (i)

internal Raytheon documents, and (ii) information provided by Brush

to Raytheon concerning hazards posed by beryllium.26

i. Internal Raytheon documents

Of particular relevance among Raytheon's internal

documents are those from a file maintained by Walter Hartford,

McCarthy's predecessor and a Raytheon Safety Manager from 1970-

1989. The most important of these documents, "Beryllium Project,"

a Raytheon memo dated November 16, 1960, expressly states that 2

µg/m3 exposures are safe: "In view of the many unknowns in

beryllium pathology, the only possible preventative has been to

reduce the atmospheric concentrations to within safe limits,"

25
Scientists studying chronic beryllium disease have long
distinguished occupational and non-occupational exposures. See
Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704, 710-11 (E.D.
Tenn. 2001) (discussing the early study of non-occupational
exposure to beryllium). In this case, appellants' claim is that
Raytheon was unaware that it was dangerous to expose Genereux to 2
µg/m3 of beryllium in the work setting.
26
Although we focus on materials provided by Brush to
Raytheon, we have also examined warnings provided by Hardric and
General Ceramics, which appellants argue is the predecessor of
appellee American Beryllia. Except for MSDSs, warnings provided by
Hardric and General Ceramics contain no information that arguably
informed Raytheon of the particular dangers identified by
appellants.

-42-
namely, "[t]he in-plant atmospheric concentration of beryllium

should not exceed 2 µg/m3 averaged over an 8 hour day." (Emphasis

added.) The document goes on to distinguish between safe exposure

levels for "in-plant" and "out-plant" areas. The basis for the

distinction is the "greater reactivity" of beryllium dust particles

in the non-occupational setting.

The 2 µg/m3 allowed . . . for an average daily
exposure is considered to be well within the
concentrations necessary for causing the
chronic disease. It should be noted that the
"in-plant" concentration of 2 µg/m3 is
considered safe whereas 40-50 cases have been
reported in the neighborhood of beryllium
processing plants where monitoring indicated
only .01 µg/m3. One reason proposed for the
higher incidence of chronic beryllium
poisoning with these relatively low
concentrations of beryllium is the smaller
particle size and thus greater reactivity of
beryllium in the "out-plant" area.

(Emphasis added.)

Another document in Raytheon's files, "Toxicity of

Beryllium," a 1962 report authored by the Air Force, reinforces

this distinction by stating that chronic beryllium disease has not

been reported at plants observing the 2 µg/m3 standard: "To date no

case of either acute or chronic beryllium disease has been reported

in connection with plant operations at which these standards

[exposures at 2 µg/m3] have not been exceeded."

ii. Materials provided by Brush

Brush provided Raytheon with a considerable number of

documents about the safety of beryllium products. These materials

-43-
almost uniformly corroborate the impression that occupational

exposures at the 2 µg/m3 level are safe. For example:

C Brush published MSDSs in 1983, 1985 and 1990, and
provided them to Raytheon throughout Genereux's
employment. All of the MSDSs identify the beryllium PEL
or TLV as 2 µg/m3. MSDSs provided by American Beryllia
also identify the 2 µg/m3 value.

C On May 24, 1979, Brush mailed Raytheon a letter, to which
it attached a paper entitled "Beryllium and Its
Compounds," authored by the American Industrial Hygiene
Association, and dated 1964. The paper identifies a
"Recommended Maximal Atmospheric Concentration" of 2
µg/m3.

C Letters mailed to Raytheon on June 7, 1984, October 24,
1984, August 8, 1986, and March 3, 1989, state, "[d]aily
weighted average exposure over an eight-hour day may not
exceed 2.0 micrograms beryllium per cubic meter of air."

In addition, Brush mailed its customers material that

impugned prior evidence that exposures at the 2 µg/m3 level were

dangerous and stated that occupational exposures at that level had

never produced chronic beryllium disease. On April 18, 1989, Brush

mailed Raytheon a letter, to which it attached several documents

discussing beryllium exposure levels. Included among those

documents was its own paper, "Safe Handling of Beryllia Ceramics,"

dated November 1983.

C The paper's introduction explained, "[u]ntil a few years
ago almost all beryllium oxide production and fabrication
was performed in a limited number of facilities. . . .
Because of the integrated nature of early beryllium
operations, much of the literature concerning the health
and safety aspects of beryllium is quite general in
nature and not applicable to simple beryllium operations.
Accordingly, a good deal of confusion still exists
concerning the relative hazards of handling beryllia.
The purpose of this document is to answer the questions

-44-
 most often posed by those engaged in the handling of
beryllia and thereby to summarize the health
considerations involved in this aspect of beryllium
activity." (Emphasis added.)

C The 1983 "Safe Handling" paper included a number of
questions and answers, such as, "Q. What are the health
hazards associated with the handling of beryllia? A. The
only potential problem of any significance associated
with the handling of beryllia is the inhalation of
excessive amounts of respirable beryllium. Q. What is an
excessive amount? A. . . . The majority of people,
perhaps as much as 99%, apparently do not seem to react
adversely to beryllium exposures at any level. A small
percentage of people do develop an immunological
response. . . . Opinion varies as to what level of
exposure is apt to produce a reaction in a hypersensitive
person but we do know that there has never been an
illness recorded where exposures were kept at, or below,
the threshold limit values originally recommended by the
U.S. Atomic Energy Commission in 1949 and subsequently
established by the U.S. Occupational Safety and Health
Administration . . . ." (Emphasis added.)

C The 1983 "Safe Handling" paper also explained, "Q. If
these recommended standards have been so effective in
controlling beryllium illness, what about the hundreds of
cases one hears about? A. Hygienic controls were
established in the late 1940s. Prior to that time . . .
[people] were exposed to massive doses of beryllium under
completely uncontrolled conditions. In many cases people
exposed in the early 1940s did not develop symptoms of
illness until years afterward. Thus, we still hear
occasionally of a 'new' beryllium illness due to those
old exposures. Q. Does this mean that there have been no
cases of beryllium disease as a result of exposures in
recent years? A. No. New cases of beryllium disease,
although relatively infrequent, still occur as a result
of accidental or negligent exposures in excess of the
permissible concentration levels." (Emphasis added.)

The point that occupational exposures at the 2 µg/m3 level pose no

danger to employees was repeated in subsequent materials from

Brush.

-45-
C Also attached to Brush's April 18, 1989 letter were two
versions of a paper entitled, "Potential Beryllium
Exposure While Processing Beryllia Ceramics for
Electronic Applications." The first version of the paper
was authored by Martin Powers, a Brush employee, and
published in 1982. It states: "There has not been a
nonoccupational case of beryllium disease as a result of
exposure since the 1940's and the acute disease, which is
only found in beryllium producer plants, has not been
seen in the past decade." (Emphasis in original.)

C The second version of "Potential Beryllium Exposure,"
authored by Marc Kolanz and Richard Davis, and published
in September 1988, states: "No one is able to define the
dividing line between safe and unsafe concentration of
beryllium with any precision. Therefore, the AEC-
recommended levels [2 µg/m3], which are now OSHA
standards, incorporate a margin of safety. Although the
exact margin of safety is not known, we do know that
there has never been an occupational case of [chronic
beryllium disease] when the exposure was at or even near
the 2 µg/m3 level . . . ." (Emphasis in original.)

C In a July 19, 1989 letter sent by Brush to its beryllia
customers, Brush physician Dr. Thomas Markham states,
"[t]he fact that no beryllium disease cases have been
reported where the standard has been met provides
immutable testimony to its effectiveness."

Taken together, we think that this evidence establishes

a genuine issue of material fact about whether Raytheon knew, or

reasonably should have known, that exposures to beryllium at the 2

µg/m3 level could cause employees like Genereux to develop chronic

beryllium disease. To be sure, the record contains some evidence

suggesting that Raytheon was aware that exposures at 2 µg/m3 could

be dangerous.27 However, the "Beryllium Project" memo clearly

27
James McCarthy, who became a Raytheon safety engineer in
1989, testified that he understood in the 1980's that it was
possible for a person to develop chronic beryllium disease from
exposures below 2 µg/m3. However, McCarthy described such exposure

-46-
distinguishes between occupational exposures and "out-plant"

exposures, expressly stating that the 2 µg/m3 standard is

"considered safe" in the occupational setting. According to the

Raytheon memo "Beryllium Project," Raytheon believed that non-

occupational exposures at or below the 2 µg/m3 level were dangerous

due to the "greater reactivity" of the beryllium particles

involved. That occupational exposures at that level were safe

would have been corroborated by multiple documents, including the

"Safe Handling" paper, the "Potential Beryllium Exposure" papers,

and the Markham letter, all of which asserted that no chronic

beryllium disease had ever been discovered in an occupational

setting where the 2 µg/m3 standard was observed. On this basis, a

reasonable fact-finder could conclude that Raytheon reasonably

believed workplace exposures of 2 µg/m3 or less posed no danger to

its employees.

levels as being "lower than those that are appropriate for general
manufacturing populations, certainly." It is unclear whether
McCarthy believed that such exposures put workers, such as
Genereux, at risk. (McCarthy also testified that his knowledge of
Raytheon during the period that Genereux worked in the Backward
Wave Oscillator Lab was "[n]othing more than anecdotal," and that
he remembered nothing "specific.") In addition to McCarthy's
testimony, an undated memo entitled "Beryllium" surmises that
"'safe' levels of beryllium may ultimately be set below one
microgram per cubic meter of air." Brush allegedly provided this
memo to Raytheon, possibly attached to its April 18, 1989 letter.
Attached to the same letter was the "Potential Beryllium Exposure"
report, which stated that there had not been a single
nonoccupational case of chronic beryllium disease in plants
observing the 2 µg/m3 limit. At best, this evidence creates a
genuine issue of material fact about whether Raytheon was aware of
the danger posed to workers such as Genereux by 2 µg/m3 exposures.

-47-
 Moreover, we cannot ignore the evidence of Brush's effort

to persuade its customers that occupational exposures to beryllium

at the 2 µg/m3 level do not cause chronic beryllium disease. In

light of this evidence, a reasonable jury could conclude that even

if Raytheon did suspect, at one time, that exposures at the 2 µg/m3

level were dangerous to their workers, Brush convinced it that this

suspicion was unreasonable.28 While Raytheon is a sophisticated

company, the record reveals that Brush is much more sophisticated

in its understanding of beryllium, the dangers posed by beryllium,

and how best to implement hygienic controls. Brush is the leading

producer of beryllium, has been involved in beryllium research for

sixty years, was recognized as an expert on beryllium by Raytheon's

employees, and held itself out to Raytheon as a beryllium expert --

which it was.

3. Conclusion

This record does not entitle appellees to summary

judgment on the sophisticated user defense. There are genuine

issues of material fact about whether Raytheon knew, or reasonably

should have known, of the particular dangers posed by polishing

beryllium metals and by exposing its workers to concentrations of

beryllium at the 2 µg/m3 level. Therefore, we cannot conclude, for

purposes of summary judgment, that Genereux's employer was

28
Evidence in the record supports the conclusion that
Raytheon would adjust its hygienic controls in light of input from
Brush. See infra section III(C)(3).

-48-
sufficiently knowledgeable of the dangers she faced to relieve the

appellees of their duty to warn Genereux of those dangers. See

Willner, supra, at 590-92 (discussing this version of the

sophisticated user defense).

Of course, the record leaves little question that

Raytheon was, generally speaking, as the district court noted, a

sophisticated company, and that it knew a considerable amount about

beryllium. Still, it would be speculative to infer, on these

grounds alone, that Raytheon knew or should have known of the

polishing and two-microgram-level dangers. There is simply no

basis in the record from which a reasonable fact-finder could draw

such an inference. Cf. Johnson v. Am. Standard, Inc., 179 P.3d

905, 916-17 (Cal. 2008) (record contained evidence about what

plaintiff's profession "could reasonably be expected to know");

Humble Sand & Gravel v. Gomez, 146 S.W.3d 170, 175 (Tex. 2004)

(record contained testimony about what one would expect a person in

the plaintiff's profession to know). The district court was wrong

to conclude otherwise.

C. Appellees' Alternative Grounds for Affirmance

1. Bulk supplier doctrine

As the Massachusetts Supreme Judicial Court has made

clear, the bulk supplier doctrine is a "separate, conceptually

discrete" defense from the sophisticated user doctrine. Hoffman,

751 N.E.2d at 854 (citing Donahue v. Philips Petroleum Co., 866

-49-
F.2d 1008, 1012 (8th Cir. 1989)). Under the bulk supplier

doctrine, a supplier of bulk products "discharge[s] its duty to

warn end users of a product's hazards by reasonable reliance on an

intermediary" to transmit an appropriate warning. Id. The Supreme

Judicial Court has stated that "[f]or the bulk supplier doctrine to

apply, a product must be delivered in bulk to an intermediary

vendee." Id. This requirement reflects two rationales for the

doctrine: that products delivered in bulk are often reformulated

and repackaged by an intermediary, making it unlikely that the

supplier could provide a warning that would reach end users; and

that bulk supplies are often put to "multitudinous commercial

uses," making it unduly burdensome to require the supplier to warn

all foreseeable end users. Id. at 856-57.

If the bulk supplier doctrine applies, a supplier

discharges its duty to warn only if it has reasonably relied on the

intermediary to transmit its warnings. Id. at 854. "The

reasonableness inquiry is fact intensive," id. at 856, and factors

that may determine whether reliance was reasonable are:

(1) the dangerous condition of the product;
(2) the purpose for which the product is used;
(3) the form of any warnings given; (4) the
reliability of the third party as a conduit of
necessary information about the product; (5)
the magnitude of the risk involved; and (6)
the burden imposed on the supplier by
requiring that he directly warn all users.

Id.; see also Tilton v. Union Oil Co. of Cal., 831 N.E.2d 391, 394

(Mass. App. Ct. 2005).

-50-
 The district court held that whether the bulk supplier

doctrine applied to the appellees "raises at least one question of

material fact." We agree. For the bulk supplier doctrine to

apply, a supplier must supply its products in bulk to an

intermediary vendee. In Hoffman, the Supreme Judicial Court stated

that "[b]ulk products are often delivered in tank trucks, box cars,

or large industrial drums." 751 N.E.2d at 856. As explained, the

characteristics of this method of supply justify permitting a

supplier to discharge its duty to warn by reasonably relying on an

intermediary to transmit its warnings. See id. at 856-57. The

record does not show whether appellees supplied their products in

box cars or by comparable means, and appellees do not argue in

their briefing to this court that the summary judgment record

permits a resolution of this question. For that reason alone, this

alternative ground of decision is not available to the appellees.

2. Genereux did not work with appellees' products

Taking the facts in the light most favorable to the

appellants and resolving all inferences in their favor, the

district court below concluded that appellees had supplied Raytheon

"with a wide variety of products containing beryllium." It stated

that American Beryllia had supplied Raytheon with beryllium oxide

components, including windows, pins and collectors; that Brush had

supplied Raytheon with rectangular plates, discs, rods and tubes;

-51-
and that Hardric had supplied "beryllium metal emitter rings" made

from raw materials supplied to Hardric by Brush.

Appellees argue that we should affirm summary judgment on

the ground that the appellants have produced no evidence that

Genereux ever worked with their products. We disagree. Taken in

the appropriate light, the record supports the conclusion that

Genereux worked with beryllium products manufactured by appellees.

As to Brush, the record contains invoices showing that Brush

shipped beryllium oxide components, including "windows" (discs) and

rectangles, to Raytheon's Waltham plant. Genereux testified that

she worked with beryllium oxide discs and rectangles in the

Backward Wave Oscillator Lab. The record also contains evidence

that Brush supplied beryllium to intermediate fabricators, who

altered the pieces and sold them to Raytheon. For example, Brush

supplied Hardric with beryllium metal tubes, which it made into

"emitter rings" and delivered to the Waltham plant. Lastly, as to

American Beryllia, invoices included in the record show that its

predecessor, General Ceramics, supplied beryllium oxide "windows"

to Raytheon's Waltham plant throughout the 1980s.

Taken in the light most favorable to the appellants and

resolving all inferences in their favor, the record supports the

conclusion that Genereux worked with beryllium products

manufactured by appellees.

-52-
 3. Proximate causation

Appellees argue that even if they breached their duty to

warn Genereux, summary judgment should be affirmed because their

conduct was not the proximate cause of Genereux's injury. In

support of this argument, appellees point to record evidence that

Raytheon removed the warnings that appellees did provide and failed

to heed warnings about controlling beryllium exposures,

particularly in connection with the sandblasting of beryllium

ceramics. These practices, appellees argue, show that Raytheon was

the proximate cause of Genereux's injury.29

Under Massachusetts law, a "defendant is liable for the

foreseeable intervening conduct of a third party whether that

conduct is negligent or not." Wilborg v. Denzell, 268 N.E.2d 855,

859 (Mass. 1971) (collecting cases); Jones v. Cincinnati, Inc., 589

N.E.2d 335, 338 (Mass. App. Ct. 1992). "'[O]nly unusual,

extraordinary negligence of a third party will excuse an original

tortfeasor's liability.'" Jones, 589 N.E.2d at 338 (quoting A.L.

29
There is a close relationship, in this case, between the
proximate cause arguments and the sophisticated user defense. Both
focus on Raytheon, the intermediary between the appellees and
Genereux. The thrust of the proximate cause arguments is that
Raytheon's conduct in removing warnings and failing to heed
warnings implies that any warnings the appellees did provide would
have been insufficient to prevent injury to Genereux. In similar
fashion, the sophisticated user defense argues, in effect, that any
failure of the appellees to warn did not proximately cause injury
to Genereux because Raytheon, who controlled her workspace and owed
her a duty of care as well, knew or should have known of the
dangers in question but failed to protect her.

-53-
v. Commonwealth of Mass., 521 N.E.2d 1017, 1023 (Mass. 1988)).

Whether conduct meets this standard depends on the "character [of

intervening events], and . . . the natural and probable connection

between the wrong done and the injurious consequence." Solimene v.

B. Grauel & Co., 507 N.E.2d 662, 666 (Mass. 1987) (internal

quotation marks and citation omitted). Proximate causation is

normally a jury question. Id. at 665 ("Generally, questions of

causation, proximate and intervening, present issues for the jury

to decide.").

In this case, the record provides some support for

appellees' claim that Raytheon did not pass on their warnings to

employees.30 However, the record also shows that Raytheon created

warnings of its own to accompany beryllium parts throughout the

Waltham plant. These warnings were roughly similar in content to

appellees' warnings, stating that beryllium was "toxic," and that

employees should avoid operations that generated dust. Raytheon's

practice of issuing its own warnings distinguishes this case from

the authority cited by the appellees, in which an employer

transferred a hazardous product from drums, which bore a warning,

to a small container "with no label or warnings thereon of any

type." Whitehead v. Dycho Co., 775 S.W.2d 593, 595 (Tenn. 1989);

30
For example, although appellees included warnings in
every shipment of beryllium products to Raytheon, Genereux
testified that she never saw any warnings accompanying beryllium
parts in the Backward Wave Oscillator Lab.

-54-
cf. Cohen v. Steve's Ice Cream, 737 F. Supp. 8, 8-9 (D. Mass. 1990)

(similar). In contrast to such a practice, we cannot conclude that

Raytheon's act of replacing manufacturer warnings with its own

warnings was unforeseeable intervening conduct, or that it

constituted "unusual, extraordinary negligence." Jones, 589 N.E.2d

at 338 (internal quotation marks omitted). A reasonable fact-

finder could conclude that by issuing its own, roughly similar

warnings, Raytheon exercised some care in protecting the health and

safety of its employees.

Whether Raytheon heeded appellees' warnings presents a

slightly different issue. Like most jurisdictions, Massachusetts

presumes that a user will follow a warning if it is given.

Knowlton, 930 F.2d at 123; Wolfe v. Ford Mtr. Co., 376 N.E.2d 143,

147 (Mass. App. Ct. 1978); Restatement (Second) of Torts § 402A

cmt. j (1965). As we explained the presumption in Knowlton,

"'where no warning is given, or where an inadequate warning is

given, a rebuttable presumption arises, beneficial to the

plaintiff, that the failure to adequately warn was a proximate

cause of the plaintiff's [injury].'" Knowlton, 930 F.2d at 123

(quoting Seley v. G.D. Searle & Co., 423 N.E.2d 831, 838 (Ohio

1981)); see also Garside v. Osco Drug, Inc., 976 F.2d 77, 81 (1st

Cir. 1992). While no court has yet stated what must be proved to

defeat this presumption under Massachusetts law, the authority

discussed in Knowlton held that the defendants had surmounted the

-55-
presumption by proving that "an adequate warning would have made no

difference" in preventing injury to the plaintiff. Seley, 423

N.E.2d at 838.

In this case, there is indeed record evidence that

Raytheon failed to implement and enforce hygienic controls

necessary to maintain beryllium exposure levels of 2 µg/m3,

particularly in the context of sandblasting beryllium ceramics.

However, there is also record evidence that Raytheon had strict

hygienic controls, including controls of sandblasting operations;

that Raytheon repeatedly sought out Brush's advice about what

controls were necessary; and that Raytheon was inclined to adjust

hygienic practices in response to input from Brush. James

McCarthy, a Raytheon Safety Engineer, testified:

Brush Wellman provided a variety of
information that Raytheon considered to be
reliable. We certainly considered that and
compared that information against the controls
that were in place and the configuration of
those controls, certainly considered it in
constructing the -- both the allowances and
the prohibitions that were incorporated into
the control programs at Raytheon Company
. . . .

In light of the conflicting evidence about the hygienic practices

at Raytheon and Raytheon's reliance on Brush, we cannot conclude,

for purposes of summary judgment, that a warning about the danger

posed by polishing or occupational exposures to beryllium at the 2

µg/m3 level would have gone unheeded.

-56-
 4. Successor liability as to American Beryllia

American Beryllia argues that we should affirm summary

judgment as to it on the grounds that it is not subject to

successor liability for injury caused by products manufactured by

General Ceramics. American Beryllia advances three arguments in

support of this conclusion: (1) that it purchased General

Ceramics's assets at a bankruptcy sale pursuant to an Asset

Purchase Agreement that rendered the assets "free and clear of all

. . . claims and interests of any nature whatsoever"; (2) that the

July 9, 2001, Bankruptcy Court order confirming the Amended Plan of

Orderly Liquidation prohibited any distributions to creditors other

than distributions pursuant to the Plan; and (3) that under

Massachusetts law, which applies to this case, American Beryllia

did not assume the liabilities of General Ceramics because it was

a purchaser of assets. In response, appellants argue that this

case is governed by New Jersey law, and that under New Jersey law

American Beryllia is liable for injuries caused by General Ceramics

even though it is a purchaser of assets, because it fits under the

(1) "continuation" and (2) "product line" exceptions to the general

rule.

The arguments raised by American Beryllia and appellants

are of considerable complexity, involving federal bankruptcy law,

state choice-of-law principles, state law of corporations, and the

relationships between these doctrines. The district court below

-57-
declined the reach the matter, stating that the record was

insufficient to resolve it. The matter should be resolved in the

first instance by the district court on an appropriate record.

IV.

For the foregoing reasons, the judgment of the district

court granting summary judgment to the defendants is vacated. We

remand for further proceedings consistent with this opinion. Costs

are awarded to appellants.

So ordered.

-58-