                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                ___________

                                No. 02-2114
                                ___________

Roger J. Bergfeld, Sr.;                *
Denise I. Bergfeld,                    *
                                       *
           Plaintiffs/Appellants,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Unimin Corporation,                    *
                                       *
           Defendant,                  *
                                       *
Martin Marietta Corporation, also      *
known as Lockheed Martin Corporation,*
                                       *
           Defendant/Appellee.         *
                                  ___________

                           Submitted: December 12, 2002

                               Filed: February 11, 2003
                                ___________

Before WOLLMAN, LAY, and MAGILL, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.
       Roger and Denise Bergfeld appeal the district court’s1 adverse grant of
summary judgment on their products liability claim. The district court concluded that
Roger Bergfeld’s (Bergfeld) employer, the John Deere Dubuque Works Foundry, was
a sophisticated user of the silica sand that allegedly caused his injuries and thus that
Martin Marietta Corporation2 (Lockheed Martin) had no duty to warn Deere of the
risks posed by excessive exposure to silica sand. We affirm.

                                           I.

       From 1976 to 1983 Lockheed Martin sold silica sand to Deere for use in
making molds and cores in Deere’s Dubuque, Iowa, foundry. Lockheed Martin
shipped the sand in bulk to Deere by railcar and tractor-trailer. The Material Safety
Data Sheet provided by Lockheed Martin described silica as “nontoxic.” When used
in a foundry’s manufacturing process, however, silica sand fractures into fine dust
and becomes airborne. Workers exposed to respirable silica dust are at risk of
contracting the lung disease silicosis.

      Bergfeld performed several jobs in the Dubuque Works Foundry from March
20, 1972, until 1986. He sampled and tested molds, melted iron, and transferred
molten iron from the furnace to the production lines. Bergfeld had no role in ordering
or unloading the sand, nor was he responsible for making molds or cores with the
sand. Although Bergfeld worked around respirable silica dust, he concedes that he
was never exposed to silica in excess of the permissible exposure limit established by

      1
        The Honorable Michael J. Melloy, then United States District Judge for the
Northern District of Iowa, now United States Circuit Judge for the Court of Appeals
for the Eighth Circuit.
      2
       In 1995, Martin Marietta Corporation and Lockheed Corporation merged
pursuant to an agreement whereby each became a subsidiary of a new corporation,
Lockheed Martin Corporation. Although many of the events at issue in this appeal
occurred prior to this merger, we will refer to the appellee as Lockheed Martin.

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the Occupational Safety and Health Administration (OSHA). It was Deere’s policy
not to provide respiratory protection to workers who were not exposed to silica
concentrations exceeding the OSHA limit.

      In 1974, the National Institute for Occupational Safety and Health (NIOSH)
released a recommendation that the exposure limit for silica be reduced by one half
to 50 micrograms per cubic meters over a ten hour work day. Lockheed Martin did
not provide information about the NIOSH recommendation to Deere. Unlike the
OSHA regulation, which establishes a 100 microgram limit, the NIOSH
recommendation is not binding on employers. Bergfeld claimed that Lockheed
Martin failed to warn either him or Deere of the risk of silicosis associated with
exposure to silica dust concentrations below the maximum level permitted by OSHA
regulation but above the maximum level recommended by NIOSH. The district court
granted summary judgment to Lockheed Martin on all claims. On appeal, Bergfeld
contends that the district court erred in concluding as a matter of law that Lockheed
Martin had no duty to warn Deere that silicosis could be contracted from exposure to
concentrations of respirable silica dust below the OSHA limit. In addition, Bergfeld
contends that the district court erred by considering the affidavit of a witness that
Lockheed Martin did not disclose on its witness list.

                                         II.


       We review the district court’s grant of summary judgment de novo, examining
the evidence in a light most favorable to the nonmoving party, in this case Bergfeld.
Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). We affirm only
if there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).




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     Iowa has adopted § 388 of the Restatement (Second) of Torts regarding a
manufacturer’s duty to warn of the dangers associated with the use of its products.
Mercer v. Pittway Corp., 616 N.W.2d 602, 623 (Iowa 2000). Section 388 provides:


      One who supplies directly or through a third person a chattel for another
      to use is subject to liability to those whom the supplier should expect to
      use the chattel with the consent of the other or to be endangered by its
      probable use, for physical harm caused by the use of the chattel in the
      manner for which and by a person for whose use it is supplied, 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, and
      (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.


Section 388 is a rule of negligence, not one of strict liability. Mercer, 616 N.W.2d
at 623. Subsection (b) embodies the sophisticated user doctrine, which we have
described as imposing “no duty to warn if the user knows or should know of the
potential danger, especially when the user is a professional who should be aware of
the characteristics of the product.” Vandelune v. 4B Elevator Components Unlimited,
148 F.3d 943, 946 (8th Cir. 1998) (applying § 388 under Iowa law and quoting
Strong v. E.I. DuPont de Nemours Co., 667 F.2d 682, 687 (8th Cir. 1981)).


      The district court concluded that Deere was a sophisticated user and thus that
Lockheed Martin had no duty to warn Deere or Bergfeld about the dangers of
exposure to silica dust. Bergfeld concedes Deere’s knowledge that excessive
exposure to respirable silica dust increases the risk of contracting silicosis. However,
he argues that Deere was insufficiently sophisticated because it did not know of and


                                          -4-
did not implement safeguards to reduce exposure levels to the NIOSH recommended
level.


        We are not the first court to address a sophisticated user defense to a negligent
failure to warn claim against a supplier of industrial sand. In Smith v. Walter C. Best,
Inc., the court affirmed summary judgment in favor of the defendant suppliers of
industrial sand. 927 F.2d 736, 737 (3d Cir. 1990) (applying § 388 under Ohio law).
Like Bergfeld, Smith worked in a foundry and developed silicosis as a result of many
years of exposure to silica sand on the job. Id. at 738. Because the sand was
delivered in bulk and the plaintiffs did not participate in the delivery process, the
foundry was in a better position to convey warnings to the employees. Id. at 740.
Furthermore, the court held that it was reasonable for the sand supplier to rely on the
foundry’s knowledge of the dangers of silicosis, given the regulations governing
silica sand, the “state of common medical knowledge,” and the foundry’s membership
in the Industrial Health Foundation, which provided information about occupational
diseases including silicosis. Id. at 741.


       In Goodbar v. Whitehead Brothers, a case relied upon by the court in Smith,
the court discussed the foundry industry’s knowledge about silicosis dating back to
the 1930s. 591 F. Supp. 552, 562 (W.D. Va. 1984) (applying § 388 under Virginia
law), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985). The court imputed
the extensive knowledge of the American Foundrymen’s Society (AFS) to the
foundry through its vice president, who was active in the AFS and thereby exposed
to much information about silicosis. Id. at 562-63. Goodbar’s experts criticized the
foundry’s corrective measures as evidencing a lack of sophistication regarding
silicosis. Id. at 565. Imperfect corrective measures, however, did not rebut facts
showing knowledge of silica dust and silicosis dating back to the 1930s. Id.
Granting summary judgment to the silica sand suppliers, the district court held that
they could assume that the foundry would make proper use of this knowledge. Id.

                                          -5-
       Bergfeld concedes that Deere possessed the kind of generalized industry
knowledge described in Goodbar and Smith. His claim is narrower in that he claims
Deere did not know of the danger of silica exposure in the range between the NIOSH
recommended exposure level and the OSHA limit. The record belies this assertion.
Charles Peterson, the Manager of Industrial Hygiene during the time Bergfeld worked
for Deere, served as the Deere representative to the AFS. He served on the Industrial
Hygiene Committee, the committee that addressed workplace environmental hazards
including silica dust. Peterson reviewed the Criteria for Recommended Standards for
Occupational Exposure to Crystalline Silica, published by NIOSH in 1974. He
discussed the recommendations with his staff, Deere managers, and foundry safety
directors. Dr. Kent Oestenstad, another industrial hygienist at Deere, was also
familiar with the NIOSH recommended standard. Oestenstad stated that although he
had not reviewed the NIOSH recommendation in detail while he worked for Deere,
he had knowledge of it through professional publications. He further stated that it
would not be necessary for a silica sand supplier to provide the NIOSH standard to
Deere because Deere had knowledge of it. Aside from asserting that Oestenstad was
not familiar with the NIOSH standard, an assertion contradicted by the record,
Bergfeld offers only Deere’s failure to adopt the NIOSH standard as evidence that
Deere did not know of the standard. That Deere chose not to adopt the NIOSH
recommended standard is insufficient to rebut the substantial evidence of the
company’s knowledge of that standard.


       Bergfeld contends that the district court erred in considering Peterson’s
affidavit because Lockheed Martin did not list Peterson in its pretrial disclosure of
persons likely to have knowledge of facts relevant to the action. He argues that
without Peterson’s affidavit, the evidence presents a genuine issue of material fact
regarding Deere’s lack of knowledge of the NIOSH recommendation. We review the
district court’s evidentiary rulings for an abuse of discretion. Mawby v. United
States, 999 F.2d 1252, 1254 (8th Cir. 1993). The “use of an undisclosed witness


                                        -6-
should seldom be barred unless bad faith is involved.” Id. (quoting Mills v. Des Arc
Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989)). The record does not
indicate that Lockheed Martin engaged in a bad faith effort to conceal Peterson’s
existence prior to trial. Deposition testimony indicated that Peterson was the manager
of Deere’s industrial hygiene department during the time that Bergfeld worked for
Deere. Bergfeld received copies of the letter Lockheed Martin sent to Deere
requesting to depose Peterson and of Deere’s letter in response stating that Peterson
had retired. The deposition testimony of several other witnesses indicated Peterson’s
role in preparing and conducting surveys of environmental health hazards at Deere.
In The Corner Pocket of Sioux Falls, Inc. v. Video Lottery Techs., Inc., we affirmed
the district court’s refusal to consider an affidavit from a witness who was not
disclosed during discovery. 123 F.3d 1107, 1112-13 (8th Cir. 1997). In Corner
Pocket, the only reasonable inference supported by the evidence was that the witness
was concealed until the eve of trial because his testimony would not withstand
scrutiny. Id. at 1113 n.5. The defendant’s use of the Peterson affidavit is unlike the
“sneak attack” perpetrated in Corner Pocket. Id. at 1113. Although Peterson’s name
was not included in Lockheed Martin’s disclosures, Bergfeld had adequate notice
during discovery that Peterson was a person likely to have discoverable information.
Accordingly, the district court did not abuse its discretion in considering the
affidavit.3


      The judgment is affirmed.




      3
          Appellee’s motion to file a supplemental joint appendix is granted.

                                           -7-
A true copy.


      Attest:


         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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