In re Welding Fume Products Liability Litigation (526 F. Supp. 2d 775, 2007)

MEMORANDUM AND ORDER

KATHLEEN McDONALD O’MALLEY, District Judge.

Currently pending in this Multi-District Litigation (“MDL”) are about 1,775 cases. In all of these lawsuits, the plaintiffs allege: (1) they inhaled fumes given off by welding rods; (2) these fumes contained manganese; (3) this manganese caused them permanent neurological injury and other harm; and (4) the defendants knew or should have known that the use of welding rods would cause these damages. Although the complaints in these cases and the theories of liability they recite are not identical, the plaintiffs generally bring claims sounding in strict product liability, negligence, fraud, and conspiracy. The gravamen of the complaints is that the defendants “failed to warn” the plaintiffs of the health hazards posed by inhaling welding rod fumes containing manganese and, in fact, conspired to affirmatively conceal these hazards from those engaged in the welding process.

One of the defendants named in these complaints is Caterpillar, Inc. The thrust of the plaintiffs’ claims against Caterpillar is that: (1) Caterpillar was a huge consumer of welding rods and employed many welders; (2) like the welding rod manufacturer defendants, Caterpillar knew that users of welding rods could suffer neurological injury; and (3) Caterpillar conspired with the manufacturer defendants to conceal the hazards of welding rods, in order to avoid the cost of respirators and other equipment necessary to protect its welder-employees.

Defendant Caterpillar now seeks summary judgment in its favor on all claims, in every case pending in this MDL (master docket no. 1979). For the reasons stated below, the motion is GRANTED, and Caterpillar is DISMISSED as a party in this litigation.

I. Procedural History.

Beginning in September of 2003, Caterpillar filed a series of motions, pursuant to Fed.R.Civ.P. 12(b)(6) and 12(c), seeking to dismiss all of the claims brought against it by all of the plaintiffs in this MDL. The primary arguments asserted in these motions were that: “(1) the claims for conspiracy to commit fraud fail because the complaints do not plead fraud with sufficient particularity; (2) the negligence claims fail because the complaints fail to identify a duty owed by [Caterpillar] to the plaintiffs; and (3) the product liability claims fail because [Caterpillar] did not manufacture or distribute any welding rod products, which is the only basis for strict product liability.” The Court denied these motions “without prejudice to [Caterpillar’s] assertion of similar arguments in summary judgment motions” because Caterpillar’s “arguments, to varying degrees, reified] on matters outside of the pleadings.”

In assessing Caterpillar’s arguments, however, the Court noted that the plaintiffs had used generic allegations, which did not fully apprise Caterpillar or the other defendants regarding their alleged role in the claimed conspiracy: “While plaintiffs have alleged the ‘what’ of certain supposedly conspiratorial acts in great detail, they have alleged the ‘who’ in virtually no detail.” The Court chose, at that juncture, “to assess the sufficiency of the plaintiffs’ claims with substantial leniency,” and allowed the plaintiffs to pursue discovery against all defendants in an attempt to prove their conspiracy and other claims. The Court warned, however, that it would pay high scrutiny to plaintiffs’ proofs if Caterpillar later filed summary judgment motions:

the Court’s leniency[, however,] is temporary: the Court intends to be much more exacting toward plaintiffs when reviewing any defense motions for summary judgment. The defendants are correct in their assertion that many of the allegations, especially those that are generic, paint only a sketchy connection between a given defendant and the plaintiffs’ alleged harm. The defendants are right to insist that plaintiffs must define their theories of liability more clearly, and show each of the elements of each of their claims against each defendant. Although the Court concludes the plaintiffs’ claims survive (barely, in some cases) the defendants’ Rule 12 motions, plaintiffs’ oppositions to motions for summary judgment will have to meet fully the higher Rule 56 standard.

Since that time, Caterpillar has produced to plaintiffs in discovery thousands of pages of documents, answered many dozens of interrogatories, and presented several witnesses for deposition. After discovery was completed, Caterpillar filed the instant summary judgment motion, again asserting there is no basis for a judgment against them on any of the claims asserted by any of the plaintiffs in this MDL. With benefit of discovery, plaintiffs have responded with a much more detailed explanation of Caterpillar’s actions and precisely how plaintiffs believe Caterpillar took part in the alleged conspiracy. This discovery is summarized below. Ultimately, however, the Court concludes that, although Caterpillar was associating with welding rod manufacturers against which plaintiffs have colorable claims, there is insufficient evidence upon which a reasonable jury could conclude that Caterpillar conspired with those other defendants to harm the plaintiffs.

II. Facts.

To give context to the Court’s factual recitation, the Court first repeats here the plaintiffs’ own characterization of the conspiracy claims they assert against Caterpillar and the other defendants. Plaintiffs explain:

The plan of the welding rods industry was to conceal and misrepresent vital information concerning the health risks of manganese. This plan was knowing and willful. This plan had several aspects:

1. minimize the warnings on welding consumable labels

2. preclude fundamental neurological epidemiology studies on welders

3. promulgate misleading scientific information in the published literature [and]

4. oppose appropriate exposure limits of manganese emitted in welding fumes.

The motive[s] for the plan [were]:

1. to limit the costs inherent in providing a safe working environment for welders [and]

2. to maximize sales which would have otherwise been reduced because of safety issues.

The evidence mustered by plaintiffs “to demonstrate that Caterpillar participated in a knowing, intentional and willful industry-wide effort to conceal and misrepresent the facts about the adverse health effects of manganese in welding rods” is set out by category, below. The following material facts are not in dispute, and are examined from the perspective most favorable to plaintiffs.

A. Historical Context.

Plaintiffs assert that the conspiracy Caterpillar allegedly joined in 1972 actually began as early as the 1930s. It was in 1932 that Dr. Erich Beintker first published a report titled “The Effect of Manganese During Arc Welding.” Although written in German, the report was translated and came to the attention of the welding rod industry in America. Dr. Beintker was one of the first persons to suggest that exposure to manganese in welding fumes could be hazardous. The Metropolitan Life Insurance Company, in a 1937 booklet titled “Health Protection of Welders,” summarized Dr. Beintker’s report as follows:

Two cases of poisoning in a mild form, by manganese oxide fumes given off from the electrodes in arc welding of tanks and boilers, have been reported from Germany. The electrode used contained 0.2 percent manganese. It is stated that protective filter respirators or air helmets are necessary in tank and boiler work, although in open rooms it is improbable that these precautions will be needed.

The Booklet went on to explain the symptoms of manganese poisoning:

Manganese is an important poison from the point of view of its effects rather than from frequency of exposure to it. Manganese has a selective action on some of the nerve centers of the brain. It causes a disease similar to paralysis agitans, which in chronic cases is seldom fatal, but which, owing to the fact that no satisfactory treatment is known, is always disabling. Prevention, therefore, is the measure to be stressed when the possibility of manganese dioxide fumes or dust is present.

Over the course of the next few decades, other publications reiterated the warning that manganese in welding fumes could be hazardous. For example, in 1943, an industrial hygiene guide discussing welders’ manganese exposure noted that “[disability, such as crippling, caused by manganese poisoning, may be permanent if the disease is allowed to become well established. * * * Manganese victims usually remain life-long cripples, unfit for gainful employment. Manganese apparently attacks and progressively destroys a non-vital portion of the neuro-muscular system, leaving the victim well in other respects.”

In response to the knowledge that welding fumes could be hazardous, members of a trade organization known as the National Electric Manufacturers Association (“NEMA”) met to discuss the propriety of supplying warnings to welders. Specifically, in 1937, the members of NEMA’s Electric Welding Section — many of whom were employed by the defendants in this case (but not by Caterpillar) — heard “an argument that it is advisable to avoid all possible hazards by cautioning users of the [welding] process to provide ventilation wherever necessary and that it was further desirable to set up a uniform method of calling attention to this.” Accordingly, the members passed a resolution “to circulate among the members for approval, by letter ballot, a warning notice which should call attention to the hazards involved in breathing smoke and fumes, and suggest that adequate ventilation be provided for all welding operations.”

The record submitted by the parties does not make clear whether any such warning notice was drafted or approved by NEMA. Over the course of the following three decades, however, there are numerous examples of documents showing that certain defendants in this case — other than Caterpillar — decided both individually and jointly not to supply warnings with their welding rods, and, in some cases, to discount any threat of welding fume health hazards. A few examples include:

• In 1943, an article written by two medical-doctor-employees of defendants Union Carbide and General Electric appeared in The Journal of the American Welding Society. The article generally downplayed risks associated with welding, and stated: “As encountered in welding fumes the amounts [of manganese and other possibly injurious substances] are usually definitely less than those known to have toxic effects, and it is doubtful if any reports alleging injury from these metals in welding can be substantiated.”

• In 1949, an article researched and written by employees of defendants Lincoln Electric and General Electric, and supported by NEMA, appeared in Welding Engineer magazine. The article stated: “Medical science has thoroughly investigated the effects of fumes by arc and gas welding and has given them an entirely clean bill of health — or one so very close to it as to make no difference if welding is done under proper conditions of ventilation .... Toxic gases are not evolved from electrode coatings; comparatively, welding is safer with coated electrodes than with bare wire.” In subsequent years, Lincoln Electric distributed reprints of this article.

• In 1949, members of the NEMA Arc Welding Section discussed action recently taken by another trade organization, the American Welding Society (“AWS”). The AWS had “approved a standard covering the marking of containers for fluxes which are alleged to contaminate the atmosphere when used.” During the ensuing conversation, “[sjeveral opinions were expressed that it was inadvisable to place such markings on electrode package labels because of the adverse reflection on the welding process.” One NEMA member “estimated that if such marking was applied, it would result in a loss of business from ten to thirty percent. Another member ... commented that, on the advice of his company’s legal counsel, all such markings had been removed from package labels because of the implication that such fumes might be harmful.”

• In an internal memorandum discussing the meeting described immediately above, the history of the product manufacturers’ use of warnings was summarized as follows: “the arc welding industry at one time desired to take every precaution to guard against injury, and the NEMA, section decided to incorporate a warning clause on all electrode box labels. It turned out, however, that some of the manufacturers did not do this and as a result immediately capitalized on the advantage of being able to sell an electrode which did not have to be marked ‘poison.’ As a result, one by one all of the various manufacturers took this information off the label and all were very glad to get it off.” The memo added that “Mr. Lincoln of the Lincoln Electric Company said that if his company did anything like that [i.e., use a warning] it would put him out of business.”

• In 1951, the NEMA Arc Welding Section recognized that “State Health Bureaus have recognized an increasing interest in the analysis of fumes from welding electrodes and cases have been found where the concentration of toxic elements is higher than is recognized for safe limits.” The committee members, however, all chose to continue their practice of not providing warnings, after one member stated “that it is a question of recognizing which is the greatest risk, that is, to invite the claims which allegedly may be caused by arc welding because some information appears on the box of welding electrodes to indicate welding fumes might be harmful, or to recognize the preponderance of the evidence that the fumes from arc welding are not harmful.” Id. at 582.

• In 1955, defendant Lincoln Electric published a booklet, “Procedure Handbook of Arc Welding,” which stated that “[m]uch research has been done which has proven that the fumes and smoke obtained when welding steel and the ferrous alloys are not harmful.”

• In 1965, in response to a request for information from a NASA industrial hygienist, Lincoln Electric wrote that it knew “of no difficulties from [use of its JetWeld rods] from a health point of view where adequate ventilation is provided,” and enclosed an article titled “Welding ‘Hazards’: Our Modern Day Mythology,” which ridiculed those who associated welding with any health risk, while stating that “toxic gases are not produced by electrode coatings,” and that “[l]ead poisoning is the only chronic ailment that can be caused by welding fumes; other illnesses attributable to fumes dissipate quickly and have no cumulative effect.”

In the late 1960s, however, practices regarding warnings on welding rod products changed. Specifically, in 1966, prompted by the tobacco industry’s use of a warning for cigarettes, the American Welding Society’s (“AWS’s”) Committee on Filler Metal — which had members from a large number of defendants in this case (but not Caterpillar) — addressed the question of whether there should be “mandatory warning labels” for welding rods. Eventually, in April of 1967, the AWS did adopt a mandatory warning label, which read: “Caution. Welding may produce fumes and gases hazardous to health. Avoid breathing these fumes and gases. Use adequate ventilation. See USAS Z49.1, ‘Safety in Welding & Cutting’ published by the American Welding Society.”

During the period between the welding industry’s adoption of this mandatory warning and the time when Caterpillar allegedly joined the conspiracy to conceal the hazards of welding fumes, certain defendants took actions that plaintiffs claim were designed to mitigate the force of the new warning. For example, shortly after the warning was adopted, Lincoln Electric wrote a letter to the AWS Committee on Filler Metal, stating its policy would be to place this warning “on all its cartons” but not “on the product which is inside the carton.” Lincoln Electric recognized what the effect of this policy would be: “Obviously, many welders using the electrode will never see the container and will therefore never see the warning label.” Also, once it became apparent that a majority of the welding rod manufacturers were going to agree to adopt the mandatory warning label, the AWS Committee on Filler Metal appointed a task force “to prepare an article slanted toward reassuring the users that the health hazards are minimal and thus allaying suspicions of some new evidence or change in the extent of hazards, as a result of the appearance of these warning labels.” When this “slanted article” was published, it stated, among other things: “Over the years, the number of welders who have shown any effects from these fumes has been extremely small, and their disability temporary, usually less than 24 [hours].”

Thus, based on plaintiffs’ own description of it, the alleged conspiracy to conceal the hazards of welding fumes had been in place for several decades when Caterpillar allegedly joined it in 1972.

B. Caterpillar’s Connection with other Alleged Conspirators.

Caterpillar is a manufacturer of heavy equipment. As a part of its manufacturing processes, it purchases (from other defendants) and consumes large quantities of welding rods, and employs a large number of welders. In light of the importance of its welder-employees and the tasks they perform, Caterpillar has long undertaken two activities. First, Caterpillar created an internal Department of Industrial Hygiene. This department is avowedly dedicated to: (a) reduction of workplace injuries to its employees, including welders; and (b) ensuring compliance with health-related governmental and industrial regulations, including rules limiting welding fume exposure. To help meet these goals, many of Caterpillar’s manufacturing plants have medical directors, to whom resident industrial hygienists (and other health and medical personnel) report.

Second, in 1972, Caterpillar became a member of the American Welding Society (“AWS”), a non-profit trade association devoted to the advancement of the science and application of welding. In particular, over a three-decade period, two Caterpillar employees served as members of the AWS Safety & Health Committee, which was dedicated to developing information about welding safety for use by welders and their employers. These individuals were: (1) Dr. Neal Ward, Caterpillar’s Assistant Medical Director, who was on the AWS Safety & Health Committee from 1972-86; and (2) Dr. Thomas Neu, Caterpillar’s Medical Director for the Aurora, Illinois manufacturing plant, who succeeded Dr. Ward on the same Committee from 1986 into the late 1990s. During this entire period, the AWS Safety & Health Committee was composed of between five and ten active members. Meetings were often also attended by guest representatives of various businesses that consume and manufacture welding rods, as well as scientific investigators and governmental regulators.

The Safety & Health Committee’s self-professed responsibility was “the development and promotion of knowledge concerning the working environment of all persons involved in welding, brazing, thermal cutting, and allied processes.” The Committee’s “Membership and Duty Statement” proclaimed that it was the duty of the Committee to:

• promote knowledge concerning occupational and environmental effects on the health and safety of personnel involved in welding and allied processes, including the storage and handling of welding equipment and materials.

• develop safe practices and standards for such processes, to ensure a safe working environment for welders and associated personnel.

In addition to Drs. Ward and Neu, various other Caterpillar employees attended Health and Safety Committee meetings occasionally, and also attended meetings of other AWS committees.

It is through AWS membership that plaintiffs assert Caterpillar conspired with the other defendants to hide the hazards of welding fumes. It was at AWS meetings that Caterpillar allegedly reached a “meeting of the minds” with other defendants regarding their common purpose and design. Plaintiffs point to the following evidence, which reveals the state of Caterpillar’s knowledge regarding the alleged conspiracy, and Caterpillar’s actions allegedly in furtherance thereof.

C. Caterpillar’s Knowledge of Welding Fumes’ Neuro-Toxicity.

In 1970, shortly before Caterpillar joined, the AWS commissioned the Bat-telle Memorial Institute to produce a report entitled “Survey of Welding Fumes and Gases.” The Survey, which was widely distributed within AWS — and which Caterpillar received even before it became an AWS member — reported that manganese in welding fumes could cause welders to suffer neurological injury. Specifically, the study stated:

The fumes from manganese are highly toxic, and they can produce total disablement even after exposures as short as a few months to high-fume concentrations .... Exposure to manganese dioxide may cause a neurological lesion involving the basal ganglia, the frontal cortex, and occasionally the pyramidal system. Symptoms are similar to Parkinson’s syndrome and include ‘weakness of the legs,’ difficulty in walking downhill, instability, and weakness while doing heavy work.

The Survey also reported on research done in 1966 to “determine the concentration of selected toxic components” in fumes generated from “commercially available” welding rods. According to the Survey, this research showed that “several” welding rods “produced manganese and vanadium fumes that exceeded recommended [Threshold Limit Values, or ‘TLVs’].” As the Survey acknowledged, the then-applicable manganese TLV was 5.0 mg/mm3. Thus, as of the time that Caterpillar joined the AWS, it knew the AWS was reporting that over-exposure to manganese in welding fumes could cause permanent neurological damage — even “total disablement” — and that commonly-used welding rods could generate fumes so copious that worker exposure would exceed healthy limits established by industrial hygienists.

In fact, in 1972, Caterpillar employee Bob Ranney attended a meeting of the AWS Task Group on Welding Fumes and discussed his company’s existing policies regarding welding fume exposure. A memorandum that recorded Ranney’s statements revealed that Caterpillar believed “fumes must be caught and extracted at the source to do a really effective job,” because standard room ventilation did not provide adequate protection for welders. Thus, Caterpillar had budgeted “about $400 per welder” for “smoke extraction” in 1972.

Other documents, both internal to Caterpillar and also shared by AWS members, show that, from 1970 forwards, the neuro-toxicity of welding fumes was a recurring topic. For example, in 1979, an AWS literature review noted that “[pjotential exposure to manganese occurs whenever this metal is used in electrode coatings or in electrode wire,” and that manganese is “poisonous to the nervous system.” This literature review went on to state that the “observation that manganism resembles Parkinson’s disease deserves emphasis. Although no data on the prevalence of parkinsonism in welders are available, there is a concern that some cases of manganese poisoning could be mistakenly diagnosed as Parkinson’s disease. Further investigations may be warranted.”

Similarly, in 1979, an internal Caterpillar memorandum written by industrial hygienist R.E. Kinser discussed an “industrial hygiene review” that occurred at a Caterpillar manufacturing plant, and addressed particularly an example study of “the potential exposure of one welder to manganese fume.” The memorandum notes that the welder’s potential manganese fume exposure reached “almost three times in excess of the [then-current] OSHA standard [of 5.0 mg/mm3]” and, in the next sentence, observed: “Chronic inhalation of manganese fumes may result in manganese poisoning, otherwise known as manganism. Symptoms include weakness, headaches, instability, slow articulation, difficulty in walking, and spasmodic laughter, among others.” The memorandum further noted:

In addition it is felt that the current OSHA standard of 5 mg/M3 as a ceiling value is not appropriate in that it contains little or no safety factor to provide protection against any adverse health effects resulting from exposure to manganese fume. A review of the literature would indicate that manganese fume is more hazardous than previously thought and a more restrictive limit would appear necessary. The limit of 1.0 mg/M3 as a time-weighted average for manganese fume (proposed by the American Conference of Governmental Industrial Hygienists) is a more appropriate limit.

Kinser concluded that: (a) unless and until “local ventilation” (meaning fume extraction) could mitigate exposure, “mandatory use of a NIOSH certified respirator for protection against metal fumes is necessary;” and (b) “[mjedical surveillance through periodic physical examinations for welders exposed to excessive levels of manganese fume should be considered. Special emphasis should be given to identifying any symptoms of manganism.” Kinser ended his memo with the suggestion that, “[b]ecause of the potential overexposure to ... manganese, ... the recommendations made in this memo should be implemented as soon as possible.”

Later, in about 1992, as the welding community began to discuss the issue of whether, and to what extent, lower-dose exposures to welding fumes were also hazardous, Caterpillar acknowledged in an internal memorandum “a number of recent studies which have alleged to show preclinical neurological effects due to low level exposure to manganese,” including “Central Nervous System (CNS) disorders spanfning] the range from reduction in short term memory and hand tremor to full blown manganism.” The memorandum’s conclusion, however, remains representative of Caterpillar’s stance today: “All of the studies cited above have been criticized for a variety of reasons and can not be considered conclusive.”

D. Caterpillar’s Involvement with Studies of Toxicity of Welding Fumes.

In 1973, Caterpillar undertook an internal study on the health effects of ultraviolet radiation from welding on its welder-employees. The study did not, however, examine the health effects of welding fumes on welders.

In 1978, the AWS Safety & Health Committee — including Caterpillar’s Dr. Ward — voted to draft a request that “[t]he Franklin Institute Research Laboratories ... submit a formal proposal on a Mild Steel Arc Welding Prospective Study for a six year period.” The AWS envisioned this prospective epidemiological study would examine welders’ risks of suffering chronic lung disease, cancer, and eye injuries; there was no mention initially of examining the risk of developing neurological injury. In a follow-up meeting in 1979, however, Kinser from Caterpillar (attending in place of Dr. Ward) commented on the then-existing draft of AWS’s request for proposal (“RFP”) to the Franklin Institute, as follows:

Mr. Kinser observed that in mild steel welding a significant amount of manganese appears in the fume. In view of the several court cases alleging manganese poisoning, it would seem appropriate to include some kind of neurological examination to indicate the possible connection with manganese exposure in the epidemiological study.

It was suggested that this question be brought up at the meeting scheduled for the next day at the Franklin Institute Research Laboratories.

Except for the above comments on the draft RFP, no action was taken and there was no official approval of an RFP to distribute to potential research organizations.

Three months later, the Safety & Health Committee again examined the draft RFP. At that time, Dr. Ward reiterated Kinser’s thoughts: “Dr. Ward indicated the need for a cursory neurological evaluation of the welders.” The Committee voted to finalize the RFP and to submit it to four research organizations; in addition, it voted to create a “Monitoring Subcommittee — Epidemiology,” and appointed Dr. Ward as chairman. The final version of the RFP for epidemiological study issued by the AWS asked that the medical assessments of welders include a “neurological examination,” explaining: “It is believed this should be included due to concern that manganese exposure may be significant.”

Although the AWS finalized and approved the RFP seeking an epidemiological study of welders, the evidentiary record is incomplete regarding the responses of the four research organizations to which the RFP was sent. In October of 1980, however, Dr. Ward wrote to his boss at Caterpillar, Medical Director Dr. Gerald Grawey, that the AWS “is making an effort to begin a prospective epidemiological study of mild steel welders” and that the “University of Michigan is the contractor.”

Plaintiffs point out there are no minutes from any AWS Safety & Health Committee meeting reporting on the status of the welders epidemiological study over the course of the next two years. The Committee did, however, continue to maintain an awareness of anecdotal evidence regarding the effects of manganese in welding fumes. In 1981, for example, the Committee “discussed the fact that some cases of manganism have been documented at levels below 5 milligrams per cubic meter and that this was the reason that the current [TLV] was lowered to 1 milligram per cubic meter.”

The next mention in any AWS document regarding the welders epidemiological study occurred in 1982, when the minutes from the AWS Subcommittee on Fumes and Gases mention that “the proposed epidemiological study has been shelfed [sic] because of lack of funds for this project.” Put simply, the AWS did not pursue its own proposal for a six-year study, involving nine different, periodic medical examinations of 2,000 welders, because it was going to be too expensive. But the Safety & Health Committee remained interested in funding epidemiological research. Two years later, in 1984, Dr. Ward wrote to Dr. Grawey again, noting that the AWS’s research fund “is now $181,825. This amount of money is making the board of directors rather anxious to fund research. Two of us, who are also members of the research committee, share feelings that the funds should be reserved for epidemiological studies. Specifically, the NIOSH study.” Dr. Ward memorialized the Safety & Health Committee’s discussions on the subject:

The final topic of discussion was the NIOSH proposal for a prospective epidemiological study of mild welders. NIOSH apparently does not have adequate funds to accomplish this study, which is estimated to cost approximately $1.7 million over a period of seven years. They were never specific about the amount of financial support they would request from the welding society. It was agreed that NIOSH would send a request for a specific sum of money for support of the study.

The proposed NIOSH study was aimed at studying the pulmonary function of welders. At the same time, Dr. Ward revealed that, for parochial reasons, the AWS Safety & Health Committee’s support for the proposed NIOSH study protocol was only lukewarm:

I think all of the members, to some degree, support the study, although there seemed to be less than enthusiastic interest in assisting from the financial point of view. It was also obvious that the Committee has different objectives from NIOSH. The committee members would like to see a negative study which we feel would be useful in challenging some of the allegations made in the literature about health of welders. NIOSH would prefer a positive study; however they are uncertain that the levels of exposure found in industry such as Caterpillar would provide the intensity of exposure necessary to obtain positive findings.

There is no evidence that the AWS ever contributed funds to support the proposed NIOSH epidemiological study of welders. Over the next decade, however, the AWS Safety & Health Committee made the following contributions toward research of the neurological effects of welding fumes: (1) $5,000 to “Dr. Hochberg from the University of South Florida” to help pay for his “studies of manganism (MRI studies);” and (2) $30,000 to the Harvard MOVEMAP study, an early effort to see if combining brain imaging and tremor analysis could “detect a difference between the symptoms of manganism and Parkinson’s disease.”

Beyond Caterpillar’s central involvement with AWS’s pursuit vel non of studies regarding welding fume toxicity, Caterpillar was also aware of a fume-exposure study undertaken at a Belgian Caterpillar manufacturing plant. Specifically, Caterpillar-Belgium (“Cat-Bel”) wrote a memo to Caterpillar’s Medical Director, Dr. Grawey, informing him of “a study done in our plant concerning welding fumes.” The memo stated that, in response to welders’ complaints, the Ministry of Labor had collected fume samples in April of 1987; the results were “very high [both] for total fumes [and] for Mn and Fe02.” Cat-Bel followed up with its own three-week study, measuring welders’ exposures “behind the faceshield;” the measurements occurred at different workstations, at different times, and while the welders used a variety of welding rods. The results showed that “measurements of total dust ... and Manganese exceed in quite all cases the T.L.V. respectively of 5 mg/m3 for total dust ... and 1 mg/m3 for Manganese.” In contrast with these measurements “behind the faceshield,” “measurements of the ambient atmosphere of the building were all within the T.L.V. limits.”

Finally, a 1992 internal memo sets out Caterpillar’s views on the need for further studies of the effects of welding fume exposure:

There have been a number of recent studies which have alleged to show preclinical neurological effects due to low level exposure to manganese.

All of the[se] studies ... have been criticized for a variety of reasons and can not be considered conclusive. Reasons include lack of historical monitoring, poor control group selection, poor sampling and use of improper testing and questioning. Since these studies are clearly in the range where manganese exposure begins to cause biological effects, there is considerable need for a new study which addresses past deficiencies and leads to a clearly established dose-response relationship between manganese exposure and neurological disfunction [sic],

[These] [r]eeent studies are alleging the development of neurological disfunction [sic] as a result of exposures to very low levels of manganese. These studies are based on highly subjective and generalized data. If left unchallenged by more specific and targeted studies the workplace standards will almost certainly be reduced by an order of magnitude or more.

E. Caterpillar’s Views on Appropriate Manganese Fume Exposure Limits.

As noted above in footnote 33, the TLV for manganese promulgated by the ACGIH has dropped over time. When first published in 1948, the TLV was an 8-hour time-weighted average of 6.0 mg/ mm3; it was dropped in 1960 to 5.0 mg/ mm3; dropped again in 1979 to 1.0 mg/ mm3; and then dropped again in 1995 to 0.2 mg/mm3. These reductions in the manganese TLV reflect a consensus among industrial hygienists that the more that is known regarding the toxicity of manganese, the lower the exposure limits must be set to ensure “no adverse health effects.” Of course, the lower the TLV of a given substance, the more difficult — and expensive — it becomes to ensure workers’ exposures do not exceed it. As seen below, these competing concerns are reflected in Caterpillar’s documents.

In 1971, the Occupational Safety and Health Administration (“OSHA”) issued a regulation setting the Permissible Exposure Limit Ceiling (“PEL-C”) to manganese fume at 5.0 mg/mm3. This OSHA limit remained in force in 1979, even though the ACGIH had earlier dropped the TLV from 5.0 to 1.0 mg/mm3. Two of Caterpillar’s industrial hygienists, Kinsey and B.C. Manning, agreed that the ACGIH’s stance was well-supported: “It is felt that the current OSHA standard of 5 mg/M3 as a ceiling value is not appropriate in that it contains little or no safety factor to provide protection against any adverse health effects resulting from exposure to manganese fume. * * * The limit of 1.0 mg/M3 as a time-weighted average for manganese fume (proposed by the American Conference of Governmental Industrial Hygienists) is a more appropriate limit.”

In the late 1980s, however, when OSHA proposed to reduce the manganese exposure limit from a PEL-C of 5.0 mg/mm3 to a PEL-TWA of 1.0 mg/mm ^essentially equivalent to the ACGIH’s existing TLV of 1.0 mg/mm3 — Caterpillar retreated from Kinser’s position:

We do not support the TWA limit of manganese at 1 mg/M3; however we do support a TWA limit of 2 mg/M3 and feel that the literature stated supports this position.

If the limit is reduced to 1 mg/M3, we estimate that 5% to 10% of all mild steel welders would be exceeding the limit. The effort of controlling exposure for these people far exceeds the hazard involved.

At about this time, Caterpillar also filed litigation against OSHA, seeking to prevent the reduction of the manganese fume exposure limit. This litigation was ultimately successful.

Caterpillar’s Thompson also resisted later the ACGIH’s 1995 manganese TLV reduction from 1.0 mg/mm3 to 0.2 mg/ mm3. When this reduction was proposed, an organization known as The Ferroalloys Association contacted both Caterpillar and the AWS, stating it intended to protest this change and seeking support. Thompson responded: “I am writing this letter in support of your association’s attempt to convince the ACGIH’s TLV committee not to reduce the current TLV for manganese from 1 mg/m3 to 0.2 mg/m3. We feel it is unnecessary, unjustified, and extremely expensive.” In explanation, Thompson added:

In over 2400 personal samples taken in the breathing zone of the welder, we have found that approximately 50% would be over exposed to manganese at 0.2 mg/m3. In contrast, only [about 6%] were over exposed to the TLV of 1 mg/ m3.

We have also estimated the costs for providing local exhaust ventilation [fume extraction] on all our weld stations and that cost is between $8-9 million. At present, about one third of our weld stations are ventilated with weld fume extraction systems. While we have found that it is effective in reducing fume levels, it does not always control manganese to the level of 0.2 mg/m3.

This leaves us with only one other means of controlling welder exposure, the use of respirators. This a very expensive, ongoing daily expense. For instance, supplying one disposable respirator per day, costing $7.60 each, to each of our welders (1400) is $3640, or almost $900,000 per year plus disposal cost.

In summary we feel that the current TLV of 1 mg/m3 provides adequate protection to the welders and that reduction to 0.2 mg/m3 is unnecessary.

On the same day in 1995 that Thompson sent his letter of support to The Ferroal-loys Association’s Kinghorn, the AWS Safety & Health Committee did the same thing. The AWS letter went so far as to say that, in its 1979 literature review titled “Effects of Health on Welding,” “no specific concerns were raised relating the manganese exposure of welders to the development of disease,” and therefore “there does not appear to be any justification for lowering the manganese exposure limit at this time.” Of course, this 1979 literature review is the same one that noted welders are often exposed to manganese fumes, observed that manganese is “poisonous to the nervous system,” and registered “a concern that some cases of manganese poisoning could be mistakenly diagnosed as Parkinson’s disease.” In any event, the AWS letter to The Ferroal-loys Association concluded: “there does not appear to be any justification for lowering the manganese exposure limit at this time.... We feel [a reduction of the TLV] is unjustified based on current information and would not be technically feasible for the entire welding industry.”

Despite the fact that the ACGIH did later reduce the manganese TLV to 0.2( mg/m3, neither Caterpillar nor the “entire welding industry” has warned or required welders to wear respirators as a matter of routine.,

F. Caterpillar’s Knowledge Regarding the Adequacy of Warning Labels.

For over 30 years, companies that manufacture welding rods have generally shipped their products together with warning labels and also Material Safety Data Sheets (“MSDSs”). As a large consumer of welding rods, Caterpillar received these warnings and MSDSs. Further, as a member of AWS, Caterpillar was privy to discussions among the manufacturers regarding the content of these warnings and MSDSs, and whether any language changes were necessary.

Thus, Caterpillar knew that, in 1979, in response to two lawsuits, the AWS was “considering the mandatory industry-wide use of a new ‘WARNING’ label” and that the “abbreviated ‘CAUTION’ label currently required is considered to be legally inadequate.” In June of 1979, the AWS did adopt a mandatory warning label, which stated, in pertinent part:

FUMES AND GASES can be dangerous to your health.

• Keep your head out of fumes.

• Use enough ventilation or exhaust at the arc or both.

• Keep fumes and gases from your breathing zone and general area.

*¡4

See American National Standard Z49.1, “Safety in Welding and Cutting,” published by the American Welding Society.

Accordingly, Caterpillar knew that the manufacturers had all decided, in 1979, not to include any warning language specifically addressing: (1) the danger of neurological harm from manganese in welding fumes; and (2) under what circumstances the “ventilation or exhaust at the arc” was “enough.”

Further, in 1982, the AWS Safety & Health Committee discussed “a potential lawsuit to be filed by a seriously ill welder that will be based on inadequate labeling.” The welder “had been using stick electrode and assumed that there would be no greater fume hazard when he was changed to using flux cored wire, with the same label. The welder is now a paraplegic and the cause is alleged to be the welding fume containing manganese.” In response to this lawsuit, the AWS considered the suggestion that “a paragraph or two be put into ANSI Z49.1 concerning different fume levels from different processes,” but the AWS “rejected this idea and felt that it was the responsibility of the employer to be sure that the work place was free of the hazards.” Again, Caterpillar was aware that the manufacturers did not amend their welding rod warnings to address the hazard of neurological injury from welding fumes, or to quantify ventilation requirements, or to suggest that certain welding products carried a greater risk than other products of manganese fume exposure.

Similarly, in 1984, the AWS Safety & Health Committee “discussed the need for a publication on weld fume ventilation to counter product liability lawsuits. Most members felt that wording such as ‘adequate’ on the label was not enough and that some quantification for ventilation would be necessary.” Caterpillar’s Dr. Ward was present at this Safety & Health Committee meeting. Despite acknowl-edgement of this insufficiency, neither AWS nor the welding rod manufacturers ever adopted warning language further defining the phrase “adequate ventilation.”

G. Caterpillar’s Knowledge Regarding the Accuracy of Welding Literature.

The AWS made a point of publishing articles in welding trade magazines addressing health and safety issues. As a member of AWS, Caterpillar participated in meetings discussing the content of these articles.

In 1972, for example, at the first AWS meeting that Caterpillar’s Dr. Ward attended, the Safety & Health Committee discussed promoting its “Survey of Welding Fumes and Gases,” which it had just received from the Battelle Memorial Institute. Among other things, this Survey-stated that “[t]he fumes from manganese are highly toxic, ^and they can produce total disablement even after exposures as short as a few months to high-fume concentrations.” The Committee “decided to prepare an Introduction and announcement to be published in the Welding Journal as soon as possible. This will ... [publish] the fact that the Battelle reports represent only a beginning in a limited area of the total problem, and give an interpretive discussion of the Battelle reports and precautions concerning their too literal interpretation.” Seven years later, in 1979, Marvin Kennebeck, a member of the Safety & Health Committee, wrote an article characterizing the Battelle study as having “turned up no major hazards relating to welding.”

In 1984, the Safety & Health Committee discussed a suggestion that “more safety material be published that would reach the welder.” The Committee members participating in the discussion included Dr. Ward. The Committee notes conclude “that much of the safety and health information published to date never reaches the welder, the individual that most needs it. However, some members felt there should be a certain amount of control by management over what welders should see and also that the reading level of the average welder was fairly low.”

Also, even though virtually all of AWS’s more recent health and safety publications touch upon the harmful effects of manganese fume exposure, many do not mention the degree to which manganism can be debilitating. For example, a 2002 AWS welding safety publication has a section addressing “Chronic (Long Term) Effects of Overexposure.” This section states that “[pjrolonged exposure to manganese oxides may affect the central nervous system, causing tiredness, fatigue, sleepiness, muscular weakness, emotional disturbances, and uncontrolled movements while walking (muscle spasms).” The Fact Sheet does not make mention of the information contained in the 1970 Battelle survey, that “fumes from manganese are highly toxic, and they can produce total disablement even after exposures as short as a few months to high-fume concentrations,” nor does it state that symptoms of this disablement are “similar to Parkinson’s syndrome,” can be permanent, and can be mis-diagnosed.

H. Caterpillar’s Role as a Manufacturer.

As noted above, Caterpillar is a large consumer of welding rods, and never manufactured welding rods itself. Between 1991 and 2003, however, Caterpillar entered into an agreement with MG Industries (“MGI”), whereby MGI manufactured small amounts of welding rods for resale by Caterpillar. Specifically, MGI manufactured certain welding rods, packaged these welding rods with Caterpillar’s name and logo, and sold them to Caterpillar; Caterpillar then resold these welding rods to its independent dealers; and the dealers were free to retain the welding rods for their own use, or resell them again to consumers. As for warning labels and MSDSs, Caterpillar simply passed on those that MGI included with the welding rods when they were originally shipped.

Although this activity does not make Caterpillar a “manufacturer” of welding rods, the Court takes judicial notice of the fact that, under the product liability law of some states, a supplier of a defective product may be held liable “as if it were the product manufacturer,” if that supplier marketed the product using its own name. Because Caterpillar used its own name to sell the MGI welding rods to its dealers, and the dealers were free to sell those “Caterpillar” welding rods to consumers, it is possible in some cases that Caterpillar may be held liable as if it were the manufacturer of those welding rods. The Court incorporates this observation in its analysis of plaintiffs’ strict product liability claims, below.

III. Legal Standard.

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....

Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file.

In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. A fact is “material” only if its resolution will affect the outcome of the lawsuit. Determination of whether a factual issue is “genuine” requires consideration of the applicable ev-identiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.”

Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Moreover, “the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts.

IY. Analysis.

A. Product Liability Claims.

As a general matter, the plaintiffs in this MDL name in their complaints dozens of defendants, and then assert “generic” product liability claims against all of the named defendants, or against a roughly-defined subset thereof, such as the “manufacturer defendants.” As a rule, the plaintiffs do not recite in their complaint exactly which defendants’ welding products they used, and do not identify precisely those defendants against which they bring their product liability claims.

To allow the parties and the Court to better understand the scope of the claims asserted, the Court earlier ordered each plaintiff to submit a “fact sheet” listing, among other things, the welding products he used and where he worked. Critically, there is no plaintiff with an active case pending in this MDL who has indicated on his fact sheet that he used a welding product manufactured or distributed by Caterpillar. Nor has any plaintiff indicated he worked for Caterpillar or at a Caterpillar facility.

While it is undisputed that it is possible that Caterpillar’s independent dealers may have used, or even resold to consumers, welding rods originally manufactured by MGI and then branded with the Caterpillar name, it is also undisputed that no plaintiff in this MDL actually claims to have used or been injured by such a welding rod.

“It is elementary that in any action claiming injury from a product, the plaintiff must show causal connection between the defendant manufacturer and that product.” Here, no plaintiff even alleges this causal connection, much less makes a showing of disputed or undisputed fact that he used a Caterpillar-branded welding rod. There can be no product liability claim against a defendant where there was no use of the defendant’s product. Accordingly, Caterpillar is entitled to summary judgment on the generic product liability claims asserted by every plaintiff in this MDL and those claims are hereby dismissed.

B. Negligence-Based Claims.

The plaintiffs’ complaints in this case assert three different varieties of claims under the larger rubric of “negligence.” They include: (1) undifferentiated “Negligence;” (2) “Negligence — Sale of Product;” and (3) “Negligent Performance of Undertaking.” As with their other claims, the plaintiffs generally assert these negligence-based claims against all “defendants,” including Caterpillar, as opposed to, for example, only the manufacturer defendants.

As discussed below, because the plaintiffs do not identify any relevant duty owed to them by Caterpillar, much less a duty that Caterpillar breached, all of these claims against Caterpillar fail as a matter of law and undisputed fact.

1. Negligence — Sale of Product.

Typical of the allegations that plaintiffs use to support their claim of negligent sale of a product are the following, taken from the first amended complaint in Graham:

101. Certain Defendants, during some or all relevant times, manufactured sold, and/or distributed welding products that were supplied to the Plaintiff for use.

102. The Plaintiff was exposed to welding fumes containing manganese from products sold by these Defendants, while using the products or working in the proximity of others using the products.

103. These Defendants had the duty, as product sellers, to exercise reasonable care for the safety of the Plaintiff.

104. These duties included the responsibility for the following safety and health matters relating to welding fumes:

a. the investigation of the health hazards;

b. writing and publishing adequate and timely precautionary product labels and other health and safety information; and

c. writing and publishing adequate and timely specifications and standards about ventilation, safety equipment, and other precautionary measures.

d. informing Plaintiff of any changes about safety issues.

105. The Defendants knew, or in the exercise of reasonable care should have known, that welding fumes would cause neurological damage to welders like the Plaintiff.

106.The Defendants breached then-duty of reasonable care to the Plaintiff and were negligent, without regard to whether the acts were intentional, knowing, malicious or reckless.

As noted in the discussion of plaintiffs’ product liability claims, there are no plaintiffs in this MDL who claim they were injured by a welding rod sold by Caterpillar. Accordingly, there is no plaintiff who has identified any facts supporting the allegation that Caterpillar had any duty running to them, as a “product seller.” Because Caterpillar had no such duty to any plaintiff, Caterpillar is entitled to summary judgment on all claims made by all plaintiffs in this MDL for negligent sale of a product.

2. Negligent Performance of an Undertaking.

The plaintiffs in this MDL point to the AWS Safety & Health Committee’s “Duty Statement,” which declared that the Committee’s duties included “promoting] knowledge concerning occupational and environmental effects on the health and safety of personnel involved in welding and allied processes,” as well as “ensuring] a safe working environment for welders and associated personnel.” Quoting from the Graham complaint again, plaintiffs then typically follow with the allegations set out below to support their claim of negligent performance of an undertaking:

176. Defendants, individually, collectively, and as members and participants in AWS ..., voluntarily undertook the duty to inform and apprise Plaintiff, his employers, OSHA and other governmental agencies, ACGIH, the welding industry, and the public health community of all issues relating to the health and safety of welders and welding fumes, including the risk of neurological injury from manganese in welding fumes and how to avoid such injury. This was done through their role in developing the warnings and MSDS on the welding consumables used by the Plaintiff as well as their role in the publication of welder health and safety publications and medical/scientific articles, including ... AWS’s “Battelle Report,” “Franklin Research Report,” and “Effects of Welding on Health” publications.

177. Defendants negligently performed the duties they undertook to provide to Plaintiff, his employers, OSHA and other governmental agencies, ACGIH, the welding industry, and the public health community under Restatement (Second) of Torts § 324A....

The Restatement provision to which plaintiffs refer states that:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if ... the harm is suffered because of reliance of the other or the third person upon the undertaking.

Notably, the plaintiffs identify no statement made by Caterpillar directly to any plaintiff suggesting that Caterpillar explicitly undertook a duty to that plaintiff. Nor does any plaintiff suggest he and Caterpillar had a fiduciary or other special relationship — or even an employment relationship — that might impose a duty. Rather, the only basis any plaintiff has for visiting a duty on Caterpillar is its membership in AWS.

The question posed by Caterpillar’s motion for summary judgment, then, is whether Caterpillar undertook a duty to any welder plaintiff through its membership and participation in the AWS. Based on the law and undisputed facts in this case, the answer is “no.”

First, the AWS Safety & Health Committee’s mission statements do not represent a legally binding voluntary undertaking by AWS or by the Committee, much less by each organization belonging to the Committee’s changing membership, to issue public reports on research concerning the hazards of manganese in welding fumes. For the Committee to state that it has a duty to “ensure a safe working environment for welders and associated personnel” is aspirational in nature; without more, it is not tantamount to shouldering a duty to an individual plaintiff. “[Flailing, in general, to comply with the promises made in [public statements] and the industry’s voluntary code” does not translate to negligent performance of a voluntary undertaking.

Second, courts have repeatedly held that trade associations, themselves, have no duty to users of products in that trade. One example is seen in Sizemore v. Georgia-Pacific Corp. The Sizemore plaintiffs, after their home burned down, sued not only the manufacturer of the plywood used to build the home, but also the Hardwood Plywood & Veneer Association (“HPVA”). Reminiscent of the claims made by plaintiffs in this MDL, the Size-more plaintiffs asserted that the plywood was defective because it was “highly flammable and susceptible to rapid flame spread,” and also that, for “thirty years, HPVA misrepresented and concealed information regarding the flammability properties of hardwood plywood paneling from various professional organizations that write and amend model building codes.” In particular,

Plaintiffs contend that HPVA acted negligently and recklessly by manipulating [plywood flammability] test protocols] and concealing results of [those] tests that supposedly demonstrated the [high] flammability of hardwood plywood paneling and the increased safety of alternatives, and by failing to warn local, state and federal regulatory bodies and the general publi