In Re: Bauxite Containing Silica Halliday Litigation Series

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX IN RE: BAUXITE CONTAINING Master Case No: SX-2015-CV-097 SILICA HALLIDAY LITIGATION (Re: Nos. 2011-234, 239, 241, 249) SERIES Cite as: 2026 VI Super 37P (Published) Appearances: J. Russell Pate, Esq. The Pate Law Firm PO Box 890 St. Thomas, VI 00804 For Plaintiffs Warren T. Burns, Esq., Korey A. Nelson, Esq., Daniel H. Charest, Esq., Rick Yelton, Esq., Chase Charbonnet, Esq., Jayde R. Encalade, Esq. Burns Charest, LLP 900 Jackson Street, Ste. 500 Dallas, TX 75202 For Plaintiffs Kevin A. Rames, Esq. K.A. Rames, P.C. 211 Company Street, Ste. 3 Christiansted, St. Croix VI 00820 For Defendant Lockheed Martin Corporation Gregory K. Wu, Esq., KaSandra N. Rogiers, Esq., Hannah Sanchez, Esq. and Sangeeta Shastry, Esq. Shook, Hardy, & Bacon LLP 2555 Grand Blvd. Kansas City, MO 64108 For Defendant Lockheed Martin Corporation In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 2 Julia B. Mosse, Esq., Matthew T. Messina Esq., Jacques Semmelman, Esq., Debra Lefler, Esq., Eliot Lauer, Esq. Katten Muchin Rosenman, LLP 50 Rockefeller Plaza New York, NY 10020-1605 For Defendant Glencore Limited Douglas Capdeville, Esq. Capdeville Law 2107 Company St. St. Croix, V.I. 00822 For Defendant Glencore Limited MEMORANDUM OPINION (Filed August 31, 2026) Andrews, Jr., Judge INTRODUCTION Plaintiffs Rodney Felix, Miguel Velez, Gabriel Ramos, and Ronald Boston, former workers at the alumina refinery (the Refinery) located on the south shore of St. Croix, bring this action for damages against Glencore, Ltd. (Glencore), a New Jersey corporation who supplied bauxite ore to the Refinery when it was owned by the Virgin Islands Aluminum Corporation (VIALCO). 1 They allege during their employment at the Refinery, they were exposed to bauxite ore which caused them to suffer from mixed dust pneumoconiosis (MDP). They contend that Glencore 1 Plaintiffs also sued Lockheed Martin Corporation (LMC), the successor-in-interest to several Martin Marietta entities who owned and operated the Refinery before VIALCO. However, subsequent to the filing of the instant motion, they filed notices of dismissal against LMC which this Court granted on August 19, 2026. In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 3 failed to provide adequate warnings as to the dangerousness of bauxite ore. Glencore moves this Court to grant a summary judgment against Plaintiffs because, among other reasons: 1) their negligence claims are not applicable under the Restatement (Second) of Torts; 2) Plaintiffs cannot show that they in fact have MDP; and 3) they cannot prove that their alleged MDP was caused by exposure to bauxite.2 Plaintiffs respond that summary judgment is inappropriate because issues of material fact exists with respect to each of Glencore’s challenges. For the reasons mentioned below, this Court finds that issues of material fact preclude the issuance of summary judgement. FACTUAL BACKGROUND3 General Facts From 1972 to 1985, predecessors of LMC, collectively known as Martin Marietta (MM), owned and/or operated an alumina refinery (the Refinery) located on the south shore of St. Croix.4 Pls.’ Resp. to Defs.’ Joint S.U.F. 1:1, 2:6. The Refinery closed in 1985. Id. at 1:2. Virgin Islands Aluminum Company (VIALCO) 2 Glencore also moved for summary judgment based on the statute of limitations. That issue is addressed in a separate opinion. 3 The pertinent facts pertaining to the issues raised in Glencore’s motion are undisputed. 4 Plaintiffs dispute this fact and assert that each of LMC’s predecessors had a different role within the Refinery. Pls.’ Resp. to Defs.’ Joint S.U.F. ¶ 2. However, they submitted no document in support of their bare denial and do not specifically dispute Glencore’s assertion. Thus, the Court treats the asserted fact as undisputed. V.I. R. Civ. P. 56(e)(2). In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 4 purchased the Refinery in 1989, resumed operations in 1990, and closed in 1995. Id. at 2:3-5. Glencore was an indirect owner of VIALCO and supplied it with bauxite. Id. at 3:20; 26:147. However, it is not being sued in its capacity as owner. Id. at 26:147. Glencore was not involved with the day-to-day operations at the Refinery. Id. at 43:211. Nevertheless, its personnel periodically visited VIALCO. Id. at 55:236. MM Alumina operated the Refinery and converted bauxite ore into alumina using the Bayer process. Id. at 29:159. The Bayer Process is a complex method of chemical extraction. Id. at 2:12. MM Aluminum handled the maintenance side of the Refinery and MM Alumina ran the day-to-day operations. Id. at 29:161; 30:162. Bauxite is usually delivered by ship. Id. at 2:9. The Red Side of the Refinery processed raw bauxite ore, which is typically reddish rusty in color, into pregnant liquor. Id. at 3:13; 3:16. The White Side processed the pregnant liquor into alumina which his typically white. Id. at 3:15. Alumina is an interim product in the production cycle of aluminum and is smelted by a smelter to create purified aluminum. Id. at 2:10-11. Glencore supplied VIALCO with bauxite. Id. at 3:20. It was no longer the owner of the bauxite ore after delivery to VIALCO. Id. at 56:245. Between 1970 and 1985 Martin Marietta and Harvey Aluminum, Inc. purchased between 600,000 and more than 1,000,000 long tons of bauxite each year. Id. at 27:150. MM Alumina contracted with various bauxite suppliers from In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 5 around the world, including Guyana, Northern Australia, and Guinea, West Africa. Id. at 27:151. Bauxite ore is sold in bulk by the shipload and offloaded by crane. Id. at 28:154. A typical shipload of bauxite ore delivered to VIALCO consisted of anywhere from 40,000 to 45,000 metric tons, with at least two or three shipments per month. Id. at 28:155. The standard method for providing a warning to the purchaser of such bulk commodities is by delivering a Material Safety Data Sheet (MSDS) to the purchaser. Id. at 28:156. Plaintiff Ronald Boston, died on May 12, 2020 at approximately 75 years of age. Id. at 4:22-23. He claims to have worked at the Refinery from 1970 to 1983 for MM Alumina, Inc. and 1984-1985 for MM Alumina Properties, Inc. From 1990 to 1995 for VIALCO and 1995 to 2000 for Alumina Company of America (Alcoa). Compl. 6:34; Pls.’ Resp. to Defs.’ Joint S.U.F. 4:24; 5:27. Boston alleges he was a boiler operator and worked on three separate boilers. Id. at 4:25. He claims to have been exposed to excessive amounts of red dust during his employment at the Refinery. Id. at 4:26. Plaintiff Rodney Felix is 78 years old. Id. at 5:28. He was employed at the Refinery as a maintenance worker from 1973 to 1985 when it was owned by MM, 1991 to 1995 when it was owned by VIALCO and 1996 to 2000 when Alcoa owned it. Id. at 5:29-32. Plaintiff Gabriel Ramos is 75 years old. Id. at 5:34. He worked at the In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 6 Refinery as an instrument technician from 1972 to 1985 under MM’s ownership. From 1991 to 1995 under VIALCO’s ownership, and up to 1997, when Alcoa owned it. Id. at 6:35-38. He claims he was in contact with alumina, bauxite, insulation, red dust, coal acids, and other acids during his employment. Id. at 6:40. Plaintiff Miguel Velez is 59 years of age. Id. at 6:41. He worked at the Refinery as a heavy machine operator, carpenter, and maintenance worker from 1982 to 1985 for MM. From 1990 to 1995 for VIALCO and from 1995 to 1999 for Alcoa. Id. at 7:42-43. He also worked in heavy materials in all parts of the facility. Id. at 7:44. Velez alleged he came in contact with irritating or noxious chemicals, toxins, fumes, radiation, dust, catalyst asbestos, silica, and/or other deleterious substances. Id. at 7:45. All Plaintiffs claim they were exposed to bauxite ore dust, its constituent components, and its waste products during the course of their employment at the Refinery. See e.g., Compl. 2011-234 at 7:35 (Felix). They also claim they were diagnosed with mixed-dust pneumoconiosis (MDP) on June 20, 2009. Id. at 7:39. In 1978, Rosie Mackay took over as the Refinery’s Safety Engineer at the Refinery. Pls.’ Resp. to Defs.’ Joint S.U.F. 30:165. She is a certified safety specialist, a registered professional engineer in the Virgin Islands, and is a member of the American Society of Safety Engineers. Id. at 31:166. MM had safety committees to ensure that health and safety issues were identified and corrected In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 7 in a timely manner. Id. at 34:176. ORMET was involved in safety training at the VIALCO Refinery. Id. at 41:199. Warren Pedersen worked at the Alumina Refinery when it was owned by MM. Id. at 42:204. VIALCO was under the regulatory oversight of Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA). Id. at 42:206. PROCEDURAL HISTORY Plaintiffs filed their initial complaints on May 9, 2011 against LMC, Aleris Rolled Products, Inc. and General Engineering Corporation. Compls. 2011-234; 2011-239, 2011-241, 2011-249. They amended their complaints on May 31, 2011, and added Glencore as a defendant. First Am. Compl., 05/31/11. After two further amendments, Plaintiff filed Fourth Amended Complaints against LMC and Glencore on August 8, 2022. Fourth Am. Compls. All counts allege negligence claims. On September 10, 2021, Glencore and LMC filed the instant “Joint Motion for Summary Judgment” and on October 6, 2021 filed a “Supplemental Brief in Support of Motion for Summary Judgment”. These filings relate solely to bellwether Plaintiffs, Rodney Felix (20011-234), Miguel Velez (2011-239), Gabriel Ramos (2011-241), and Ronald Boston (2011-249). 5 Plaintiffs opposed the 5 Defendants state in the motion that “this motion is directed solely to the claims filed by the Bellwether Plaintiffs.” Defs.’ Joint Mot. for Summ. J. 1. In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 8 motions on October 21, 2021 to which Glencore and LMC replied on November 1, 2021. On August 19, 2026, this Court granted Plaintiffs’ motion to dismiss LMC. No hearing on the motions was held. APPLICABLE LAW ¶1 Under Virgin Islands law, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.I. R. Civ. P. 56(a); Machado v. Yacht Haven U.S.V.I., LLC, 61 V.I. 373, 380 (V.I. 2014) (stating summary judgment is not to be granted unless “the pleadings, discovery, and disclosures of materials on file, and any affidavits show that there is no genuine issue of material fact.). The movant bears the burden of demonstrating the absence of any genuine issue of material fact based upon the record. Aubain v. Kazi Foods of V.I., LLC, 70 V.I. 943, 948 (V.I. 2019) (quoting Brodhurst v. Frazier, 57 V.I. 365, 373-74 (V.I. 2012)). The moving party may meet his burden by “pointing out that there is an absence of evidence to support the nonmoving party’s case.” Id. If this is done, the burden shifts to the non-moving party to demonstrate with affirmative evidence from which a jury might reasonably rule in his favor. Id. Pursuant to the Virgin Islands Supreme Court, “‘affirmative evidence’ means ‘actual evidence’ and ‘not mere allegations’.” Basic Servs. v. Govt. of the V.I., 71 V.I. 652, 659 (V.I. 2019). In considering a summary judgment motion, “this Court must view all evidence in the In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 9 light most favorable to the non-moving party.” Id. Here, Plaintiffs are the non- moving parties. LEGAL ANALYSIS Glencore launches several attacks on Plaintiffs’ various negligence claims. It contends that: Plaintiffs’ Section 388 claims are inapplicable because of the knowledgeable purchaser rule; their Section 389 claims are inapplicable to inherently dangerous products; their Section 390 claims are inapplicable since Defendants lacked the right to control the bauxite post-delivery; and Plaintiffs’ general negligence claims should be dismissed because Glencore had no duty to warn Plaintiffs about the potential hazards of bauxite. Glencore further contends that Plaintiffs cannot show that they in fact have MDP, nor can they establish that their alleged MDP injury was caused by exposure to bauxite. The Court separately addresses each of these contentions. 1) Plaintiffs’ Section 388 Claim In Count 2 of Felix’s, Velez’s and Ramos’ complaints, as well as in Count 6 of Boston’s complaint, Plaintiffs allege that Glencore supplied bauxite ore to the Refinery, knew it was dangerous, should have expected that Plaintiffs could be endangered by its probable use, and failed to warn them of the dangerousness of bauxite ore, thus causing them to suffer harm. See e.g., Compl. 11-234 at 9:60- 65. In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 10 These claims are pursuant to Section 388 of the Restatement (Second) of Torts, which provides that one who supplies (directly or through a third person) a chattel to another to use is subject to liability to those who the supplier should expect to use the chattel . . . or to be endangered by its probable use . . . if the supplier: (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. Restatement (Second) of Torts § 388. This section thus imposes a general duty on manufacturers, suppliers, and sellers to warn users of known dangers inherent in their products. In re Kelvin Manbodh Asbestos Litigation Series, 47 V.I. 215, 247 (V.I. Super. Ct. 2005); Smith v. Walter C. Best, Inc., 927 F.2d 736, 739 (3d Cir. 1990) (stating, Section 388 . . . sets out the general principles governing a product supplier’s obligation to warn users of hazards associated with that product.”). Webb v. Special Electric Co., Inc., 370 P.3d 1022, 1033 (Cal. 2016) (stating that “a manufacturer or distributor has a duty to warn about all known or knowable risks of harm from the use of its product.”). Glencore contends that the knowledgeable or sophisticated purchaser defense, adopted by Virgin Islands courts, applies to Plaintiffs’ Section 388 claims. Defs.’ Joint Mot. for Summ. J. 5:39-47. In fact, this In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 11 Court has recognized the sophisticated intermediary (or knowledgeable purchaser) defense and determined that it would potentially bar recovery where the defendant: 1) adequately warned the intermediary; and 2) reasonably relied on the intermediary to communicate the warning to the ultimate user. In re Kelvin Manbodh Asbestos Litigation Series, 47 V.I. at 247. A defendant’s duty to warn is discharged if the method used “gives a reasonable assurance that the information will reach those whose safety depends upon their having it.” Id. at 248- 49 (citing Restatement (Second) of Torts § 388, cmt. n). Thus, to establish this defense, Glencore must show that: a) It provided adequate warnings to VIALCO’ b) VIALCO was a knowledgeable or sophisticated purchaser; and c) Glencore’s reliance on VIALCO to communicate the warnings to the ultimate users was reasonable. See Id.; and Smith, 927 F.2d at 739. Glencore presents no direct proof that it provided any required warnings. Instead, it boldly asserts that “[i]t is undisputed that Glencore provided a bauxite MSDS to VIALCO.” Defs.’ Joint Mot. for Summ. J. 41. It relies on a statement in Plaintiffs’ complaints that Glencore provided warnings and MSDS sheets to the Alumina Refinery; argues that the MSDS complied with federal regulations; and references a single MSDS sheet identified as Defs.’ Exs. 115 and 223. Id. Despite their complaint admissions, Plaintiffs maintain that whether Glencore furnished an In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 12 MSDS to VIALCO is a question of material fact. 6 Pls.’ Opp’n to Defs.’ Joint Mot. for Summ. J. 32. This Court agrees. Plaintiffs’ complaints do not specify what MSDS sheet or warning was provided; the content of any warning or MSDS sheet; nor when the sheets or warnings were given. Thus, even accepting their statements as admissions they do not permit an adequacy analysis of the warnings. Glencore also relies on a February 20, 1990 letter of adequacy issued to VIALCO by the U.S. Coast Guard Marine Safety Office. In the letter, the Captain of the Port states that Glencore’s Operations Manual meets the requirements of 33 C.F.R. 154 (2026). Defs.’ Reply in Further Supp. of Defs.’ Joint Mot. for Summ. J. 19; Id. Ex. 217. Glencore argues that VIALCO’s Operations Manual contained “the Glencore-provided bauxite MSDS,” and hence VIALCO must have previously received it from them. Id. It submitted two identical January 4, 1989 bauxite MSDS sheets (Exs. 217 and 223), which it claims were included in both VIALCO’s Operations Manual and Glencore’s records. Id. Glencore, however, submitted no evidence (e.g., affidavit, 6 The Court notes that Plaintiffs “may not avoid summary judgment through creating an issue of material fact by contradicting, without explanation, the substantive allegations in [their] complaint[s] through an inconsistent sworn affidavit or deposition testimony.” Arlington Funding Servs., Inc.v. Geigel, 51 V.I. 118, 133 (V.I. 2009). Here, however, Plaintiffs’ contrary evidence is derived from Glencore’s witness; and Plaintiffs’ complaint statement, standing alone, is insufficient to establish the adequacy of the warnings. In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 13 declaration, deposition testimony, etc.) in support of its claim. 7 Its argument concerning the contents of VIALCO’s Operations Manual does not establish that appropriate warnings were provided. To the contrary, Glencore’s 30(b)(6) witness, testified that Clarendon (n/k/a Glencore) did not provide VIALCO with any MSD sheets. Pls.’ Opp’n to Defs.’ Joint Mot. for Summ. J. 23:11-13; Ex. 58. The same witness later testified he did not know if Clarendon (subsequently known as Glencore, Inc.) passed on any MSDS sheet to VIALCO or if they already had a copy. Pls.’ Opp’n to Defs.’ Joint Mot. for Summ. J. 49:18-23. This evidence creates a genuine issue of material fact as to whether Glencore provided VIALCO with any warnings or MSDS sheets; if so when; and whether any warning or sheet provided was adequate. In light of this conclusion, the Court does not address the other Section 388 factors, i.e., whether Glencore was a knowledgeable or sophisticated purchaser and whether Glencore reasonably relied on VIALCO to transmit the warnings to its employees. 7 Glencore also suggests that this Court should adopt the Virgin Islands District Court’s factual finding in Henry v. St. Croix Alumina, LLC, Civ. No. 199-036, 2007 U.S. Dist. LEXIS 98205, (D.V.I. Aug. 10, 2007) that “Glencore provided VIALCO with an MSDS”. Defs.’ Reply in Further Supp. of Defs.’ Joint Mot. for Summ. J. 18. It provided no rule of law that would allow such an adoption of another court’s factual findings in an unrelated case. This Court is aware of no such authority. In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 14 2) Plaintiffs’ Sec. 389 Claim In their complaints, Plaintiffs allege that Glencore supplied bauxite ore to the Refinery from 1990 to 1995 when it was owned by VIALCO. Compls. 2011-234, 2011-239, 2011-241 at 2:13; Compl. 11-249 at 2:14. In Count 3 of Felix’s, Velez’s, and Ramos’, and in Count 7 of Boston’s complaints, Plaintiffs claim: a) Glencore knew or should have known the bauxite ore was unlikely to be made reasonably safe before being put to the use Glencore should have expected, i.e., to refine it to aluminum powder, alumina, and mud tailings. Compls. 2011-234, 239, 241 at 10:69; Compl. 2011-249 at 14:110; b) Plaintiffs were foreseeable users of the chattel, were endangered by the probable use of it, were ignorant to the dangerous character of bauxite ore, and was not contributorily negligent. Compls. 2011-234, 239, 241 at 10:70-71; Compl. 2011-249 at 14:112; and c) Glencore directly caused and is liable, under Section 389 of the Restatement, for the harm caused by their exposure to bauxite ore. Compls. 2011-234, 2011-239, 2011-241 at 10:67, 72; Compl. 2011-249 at 14:107, 113. These claims are based on Section 389 of the Restatement (Second) of Torts which provides that: One who supplies directly or through a third person a chattel for another's use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character. In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 15 Restatement (Second) of Torts, § 389 (emphasis added). Glencore contends that Section 389 only applies in situations where the chattel in question could have been made reasonably safe before being put to an expected use but was not. 8 Defs.’ Joint Mot. for Summ. J. 47. They further argue that Plaintiffs’ claim is essentially that bauxite is inherently dangerous and such claims are not cognizable under Section 389. Id. at 48. To say that a chattel is unlikely to be made safe before use implies its susceptibility to pre-use safety alteration or modification. Glencore, in essence, argues that bauxite cannot be made safe before use and hence Plaintiffs’ claim does not fit within the parameters of Section 389. A cursory reading of Section 389 appears to support Glencore’s contention. However, further analysis of the applicable Commentary paints a different picture. Comment “f” explains that a chattel may be made reasonably safe through pre-use warning (rather than by altering the chattel itself). It provides in pertinent part: Under normal conditions a chattel which is in some respects dangerous, or is dangerous when put to some uses, can still be reasonably safe if proper warning of the danger is given to the user. 8 In support of its contention, Glencore cites Dupree V. Keller Indus, Inc., 404 S.E. 2d 291 (Ga. Ct. App. 1991). However, although Dupree applied Section 389 to a situation where the chattel (a hydraulic punch press) could have been made safe before use, it did not hold nor state that Section 389 only applies to chattels that could be made safe before use. The Court’s focus was on the lack of evidence that the defendant knew or should have known that the chattel was unlikely to be made safe before use (i.e., that it lacked safety devices). In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 16 Thus, a chain saw which is unsafe for use on hard wood may still be quite safe for use on soft wood and is not unreasonably dangerous if the information is conveyed to the user. Again, an inflammable cleaning fluid may be very dangerous if it is used in the vicinity of an open flame, but quite safe for use if it is not; and it is not unreasonably dangerous if warning of the danger is given. Restatement (Second) of Torts § 389, cmt f. This Comment clearly contemplates that Section 389 would encompass the supplying of a chain saw or inflammable cleaning liquid where proper warnings are absent, even though such chattel cannot be made safe before use. The focus is not on failure to alter or modify the chattel pre-use, but on the provision of appropriate pre-use warnings which will permit safe use. It recognizes a duty to warn on the part of the supplier. Section (f) provides a clear illustration as follows: A manufactures and sells combs for use in permanent wave treatment in beauty shops. Heat treatment of the hair is normal and customary in such shops. A’s combs are highly inflammable, and dangerous in the presence of heat. A sells a quantity of the combs to B, a dealer, accompanying them with a warning that they are to be used for cold treatment only. B sells some of the combs to C, a beauty shop operator, but neglects to pass on the warning. C uses the combs in heat treatment of D’s hair. They catch fire and D is burned. A is subject to liability to D. Restatement (Second) of Torts § 389, cmt f. (Illustration No. 2). Here, it is quite evident that the combs could not be made safe before use. They could, however, be made safe during use if precautions are taken (i.e., used in cold treatments only). This circumstance (i.e., the inability to make a chattel safe before use), per the Comments, is within the scope of Section 389 liability. For these reasons, this In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 17 Court concludes Plaintiffs’ claim, that their likely unsafe use of the bauxite supplied by Glencore was foreseeable by Glencore, is cognizable pursuant to Section 389. Hence Glencore is not entitled to summary judgment on its “cannot be made safe before use” argument. Glencore also argues that Plaintiffs’ claim is essentially that bauxite is inherently dangerous and such claims are not cognizable under Section 389. It cites Bougopoulos v. Altria Croup, Inc., 954 F. Supp.2d 54, 63-65 (D.N.H. 2013) in support of this claim. To the extent Bougopoulus suggests that Section 389 does not encompass inherently dangerous chattel, this Court disagrees. Such reading is not supported by the Restatement nor the comments therein. See Tallman v City of Hurricane, 985 P.2d 892, 895 (Utah 1999) (upholding a Section 389 claim regarding a dangerous trench dug by the defendant, and stating, “Section 389 of the Restatement then underscores the nature of the duty owed by the supplier of an unfinished, inherently dangerous product.” Id. Haukos’s production of such an inherently dangerous trench is analogous to the production of an unfinished and inherently dangerous manufactured product.”). Id. The Court thus finds Glencore’s argument unpersuasive. 3) Plaintiffs’ Section 390 Claim In their complaints, Plaintiffs allege that Glencore supplied bauxite ore to the Refinery from 1990 to 1995 when it was owned by VIALCO. Fourth Am. Compls. In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 18 2011-234, 2011-39, 2011-241 at 2:13; Fourth Am. Compl. 11-249 at 2:14. In Count 4 of Felix’s, Velez’s, and Ramos’, and in Count 8 of Boston’s complaints, Plaintiffs claim: a) Glencore knew or had reason to know that the Alumina Refinery owners and operators were incompetent. Fourth Am. Compls. 2011-234, 239, 241 at 10:76; Fourth Am. Compl. 2011-249 at 11:84; b) Glencore knew or should have known that VIALCO failed to implement the necessary engineering controls to minimize worker exposure to bauxite, its constituent components and waste products. Fourth Am. Compls. 2011-234, 239, 241 at 11:78; and c) Glencore should have expected that Plaintiff would be endangered by the use of bauxite ore at the Refinery. Fourth Am. Compls. 2011-234, 239, 241 at 11:84; Fourth Am. Compl. 2011-249 at 12:85. These claims are based on Section 390 of the Restatement (Second) of Torts which provides that: One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. Restatement (Second) of Torts § 390. Glencore contends that Section 390 is inapplicable to Plaintiffs’ claim since it had no “right to control” the bauxite after sale to VIALCO. Defs.’ Joint Mot. for Summ. J. 49. This Court disagrees. At the outset, the Court notes that the Restatement does not limit its application to certain suppliers of chattel. It says “one who supplies” a chattel In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 19 without describing how (via sale, loan, etc.) the chattel is supplied. Secondly, the commentary to Section 390 plainly states that The rule stated applies to anyone who supplies a chattel for the use of another. It applies to sellers, lessors, donors, or lenders, and to all kinds of bailors, irrespective of whether the bailment is gratuitous or for consideration. Restatement (Second) of Torts § 390, Cmt. a. Clearly, a seller loses the right to control a chattel after sale. Yet the commentary makes clear that Section 390 still applies. Other courts agree. In Brady v. Walmart Inc., the plaintiff sued Walmart for selling a firearm to an employee, Jacob Mace, who subsequently committed suicide with the firearm. Brady v. Walmart, Inc., No. 8:21-cv-01412-AAQ, 2024 U.S. District LEXIS 89824 (D. Md. 2024). Walmart argued that negligent entrustment does not apply because it had no control over the gun at the time Mace committed suicide. Id. at *46. The Maryland District Court disagreed finding that “[t]he overwhelming weight of authority thus indicates that section 390 applies to sellers, including firearms dealers, with no requirement that the seller exercised any ongoing control.” Id. at *50. Similarly, the Arizona District Court in Estados Unidos Mexicanos v. Diamondback Shooting Sports, Inc., rejected the defendants’ argument that the complaint failed to state a claim for negligent entrustment since they had not owned or controlled the firearms after sale. Estados Unidos Mexicanos v. Diamondback Shooting Sports, Inc., No. CV-22-00472-TUC-RM, 2024 U.S. Dist. Lexis 52185, at *46 (D. Ariz. 2024) They stated that Arizona’s In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 20 adoption of Section 390 supports the proposition that the doctrine of negligent entrustment under Arizona law extends to product sellers. Id. at *47. Here, Plaintiffs claim Glencore supplied VIALCO with bauxite knowing they could be endangered by its use. This claim is cognizable under Section 390. Glencore cites several cases in support of its contention that Section 390 requires a showing that the supplier had ongoing control after supplying the chattel. The Court finds these cases distinguishable. In Mills v. Crone, 973 S.W.2d 828 (Ark. Ct. App. 1998), the plaintiffs assisted their son in purchasing a motor vehicle who later got into an accident, causing injury to another. Id. The Arizona Court of Appeals, while interpreting Section 308 of the Restatement, held that in order for the defendants to be liable for negligent entrustment, they must have had the right to control their son’s use of the vehicle. Id. Unlike the circumstances here, the Court did not interpret Section 390. Another case cited by Glencore, Zedella v. Gibson, 650 N.E. 2d 1000 (Ill. 1995), made the same ruling interpreting Section 308 and is thus distinguishable as well. In Zetter v. Griffith Aviation, Inc., the Kentucky District Court acknowledged that the commentary to Section 390 states that it applies to sellers, lessors, donors, etc. Zetter v. Griffith Aviation, Inc., No. 6: 03-218-DCR, 2006 U.S. District LEXIS 23192, at *46 (E.D. Ky. 2006). It does not support Glencore’s contention. Finally, Glencore cites Sports Inc. v. Gilbert, 431 N.E.2d 534 (Ind. Ct. App. 1982) In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 21 in support of its contention. There, the Indiana Court of Appeals stated that Section 390 only applies to those who own or have the right to control the automobile or chattel in question. Id. at 537. This statement, however, is fact specific. In Gilbert, the defendant, the defendant’s employee, a private security guard, stopped and questioned someone who drove onto unauthorized premises. Id. They determined he was intoxicated but did not arrest him. Id. The driver later left the premises and collided with the plaintiff causing injury. Id. The court reasoned that the defendant did not own the driver’s truck, had no right to control it, and hence cannot be considered a supplier or owner for purposes of Section 390. Id. at 537. Here, Glencore had control of the bauxite before its sale and “supplied” it to VIALCO. Gilbert is inapposite. For these reasons, Glencore is not entitled to summary judgment on Plaintiffs’ Section 390 claims. 4) Plaintiffs’ General Negligence Claims Glencore contends that Plaintiffs’ negligence claims, (i.e., Negligent Undertaking per Section 324A and General Negligence) should be dismissed because it had no duty to warn Plaintiffs about the potential hazards of bauxite as it was entitled to reasonably rely on VIALCO as a knowledgeable purchaser to warn Plaintiffs. Defs.’ Joint Mot. for Summ. J 50. The claims appear in Counts 1 and 5 of Plaintiffs’ complaints, and in Count 11 (the ninth count) of plaintiff Boston’s complaint. This Court earlier addressed a similar argument by Glencore in In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 22 defense of Plaintiffs’ Section 388 claim. The same result is warranted here. As explained above, the knowledgeable purchaser or sophisticated intermediary defense requires a showing that: 1) The seller provided adequate warnings to the purchaser; 2) The purchaser was a knowledgeable or a sophisticated purchaser; and 3) The seller’s reliance on the purchaser to communicate the warnings to the end user was reasonable. In re Kelvin Manbodh Asbestos Litigation Series, 47 V.I. at 247. Other courts require a similar showing to establish the sophisticated purchaser defense. In Higgins v. Huhtamiki, Inc., the United District Court of Maine stated that "the overwhelming majority of jurisdictions hold that a supplier is absolved of the duty to warn later purchasers and users down the chain of distribution when (1) the product is sold to an intermediary with knowledge or sophistication equal to that of the manufacturer; (2) the manufacturer adequately warns this intermediary; and (3) the manufacturer can reasonably rely on the intermediary to warn the ultimate consumer." Higgins v. Huhtamiki, Inc., No. 1:21-cv-00369-JCN, 2023 U.S. District LEXIS 179566, at *23 (D. Me. 2023) (citing Koken v. Black & Veatch Constr., Inc., 426 F.3d 39, 47 (1st Cir. 2005) ). In Vineyards v. UPLNA, Inc., a California United States District Court held that “Under the sophisticated intermediary doctrine: [A] supplier may discharge its duty to warn end users about known or knowable risks In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 23 in the use of its product if it: (1) provides adequate warnings to the product's immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and (2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product. Vineyards v. UPL NA, Inc., No. 1:20-cv-00506-JLT-CDB, 2024 U.S. District LEXIS 133409, at *26 (E.D. Cal. 2024). In regard to a similar defense, the United States District Court of Minnesota ruled that “the bulk supplier defense is similar to the sophisticated intermediary defense. A supplier of bulk material ‘can discharge its duty to warn the end user by warning the buyer of the dangerous condition of the materials’.” Begg v. Hercules, Inc., Civil No. 04-4489, 2005 U.S. District LEXIS 27539, at *12 (D. Minn. 2005) (citing Gray v. Badger Mining Corp., 676 N.W.2d 268, 280 (Minn. 2004) ). Similarly, the U.S. District Court for the Northern District of Ohio ruled that “under the ‘bulk supplier/sophisticated,’ or ‘knowledgeable purchaser,’ doctrine, a manufacturer can discharge its duty to warn by providing the necessary information to an intermediary upon whom it can reasonably rely [on] to communicate the information to the ultimate user of the product.” Midwest Specialties v. Crown Indus. Prods. Co., 940 F. Supp 1160, 1165 (N.D. Ohio 1996). These cases make clear that establishing the sophisticated or knowledgeable user defense requires proof that the intermediary was warned. This Court has already concluded that a genuine issue of material fact exists as In Re: Bauxite Containing Silica Halliday Litigation Series SX-2015-CV-00097 2026 V.I. Super 37P Memorandum Opinion Page 24 to wheth