this case was dismissed by the district court and we believe that that dismissal should be reversed and remanded for trial many legal as well as too many factual issues to address remain unresolved and were a result in the defendant's favor when in fact evidence was available to find a sufficient issue to go to the jury this case brings to the fore the conflict between the sophisticated user doctrine and the federal scheme of warning provided by osha under  nineteen ten twelve so called osha hazard communication under that act every chemical manufacturer in the country must it's not optional must supply material safety data sheets with their products which outline the dangers and what precautions must be taken with those products in addition that rule requires every employer of someone that is using such materials to supply those to their employers by placing them at locations throughout their workplace where they are readily available this rule supplies the duty in this case and when virtually an exam and by the court below it is virtually not addressed by the defendant in this case and yet and many other circumstances including the case that we cite to you from the northern district of ohio where this issue  s squarely presented to judge mark bennett he addressed it and in our reply brief at page nine had this to say about the conflict between the so called sophisticated user doctrine and the federal regulation as he said the duty of a chemical manufacture such as jet on to provide complete and accurate m s g s as to their customers that have done a five the hazards posed as well as the necessary safety equipment to be utilized i not a rare oddity of michigan law but is instead mandated by federal law the same law expressly permits employers like con agra to rely on these m s t essence rather than conducting independent research and so this has been raised on a number of occasions and if i think it was you know that i wonder if perhaps you could be a bit more precise i have my understanding is you think there's a genuine issue triable fact i do on the issue of the sophisticated use sophisticated user doctrine so called applies in this instance you have to establish as the first point that the manufacturer sells the product to an intermediary with knowledge or sophistication equal to that of the manufacture investigate what the source of that disease outbreak was and what they determined was that there were only three chemicals that were possible one of those was diaster till they stopped the research and we attached this in our appendix this is appendix point zero six three simply because they didn't want to know precisely what chemical it was so they would not they would not have a duty to warn judge bennett in the previous case that i  cited you call that willful blindness but they knew diastole was involved and in fact put in precautions in their own plant beginning in one thousand nine hundred to about this very danger they studied it after that point in time and when another outbreak occurred in two thousand and one they in fact were relied upon by the flavoring extract manufacturers associations as the expert in this area on the outbreak of bronchitis obliterates there is no such history for con agra in regard to this issue and therefore the first test is not met con agra was a stranger to this issue they read about an outbreak of broccoli most of literary and an up popcorn plant using a flavor and they believed as other members of the popcorn manufacturing industry did that it was a unique circumstance to that plant and as i understand it there's no evidence to come hagrid knew the amount of this stuff was in the product that's right and in con agra believed about jevons product and they switched from the product that was implicated in the studies that were coming up in two thousand and one to juveniles product so much so that juveniles product was the ninety percent supplier to the plant when my workers work there they did that specifically because judge it on did not contain the workings of the other products they thought it was safer and used it as such so the first test  we believe that presents tribal issues the fact as to whether or not con agra was in fact a sophisticated user in the sense of the cases discussed it likewise i think that the issue about whether or not the manufacture adequately warned this intermediary needs to be examined by a trial on the facts gibran says it's irrelevant that they didn't warn they greedy that their material safety data sheet was deficient compared to all others they say that that is the answer though the all other products warned about this danger of theirs did and therefore we were warned that puts the test on its head the reality is that by not warning they gave con agra the fal that their product was different they argue that every product on the defect claim is different and therefore you can't compare one with the other they can't have it both ways if in fact their product was dangerous they needed to warn about it and we say that it was and did cause these diseases the third trouble issue your honor that i believe we we have a right to have a trial on is that the manufacturer in this instance could reasonably rely on intermediary to warn the ultimate consumer in this case of course we made an argument that that probably will not be the focus but we said that under the kroger case and indiana case we're not that ultimate consumer and so  the the consumer expectation i mean the sophisticated user defense shouldn't apply i'm leaving that argument to the briefs and you can you can review that but in this regard how could how could the manufacturer lie upon con agra to warn when in fact they were not ward and believed in the testimony was they believed that juveniles product was not dangerous like the one that was being used in  missouri so we have a a factual issue about whether they did warm weather con agra was adequately warned but it was absolutely clear that con agra gave assurances to their employees that they were following all of the directions of the manufacturers and that their situation was different because of the difference in products and also because they were using different ventilation and they were using a closed system so they were not adequately warn to protect my employees within their own plant were required that his job announced plans to use a respirator when working around i asked little and this is these instructions were not given in the material safety data sheet and so while they did continue to place more and more well was all equipment to crack well that's a disputed issue hocks rosser admits not that's my point yes it's a disputed issue it's a disputed issue and should have been tried we say and judge bennett i k i hate to keep coming back to him but he did try one of these cases to conclusion concluded that don't we reason that they can make this claim about their lack of knowledge with willful blindness and stopping the study so they wouldn't have to warn as this exhibit a contain the suspended chemical so we believe that there are tribal issues of cost there was no difference in the cost they switched it out precisely at the same cost they were supplying it to con agra in two thousand and seven so and it's still the product they're using today as far as i know so so if you've eaten already bachar popcorn lately and didn't notice the difference between two thousand and seven and today that you know what i'm saying the product is the same it has the same utility and that takes me is that it's a condition not contemplated by the expected user and it's reasonably dangerous when used as expected nobody expects butter flavor to cause you know serious and perpetually fatal lung disease so that test was easily met and manufacturers liable for defective products when they fail to exercise reasonable care under the circumstance and this is hundred b n a law a little bit tricky because this involves a balancing test that the jury must believe that the extent and frequency of the harm outweighs any burden of an alternative design and you know there is one case the philips case that analyzes the frequency idea that was the case where they were they had the tipping cabinets and the cabinets tipped and injured children and and they brought a defect claim and they presented seventy three cases courts and that's enough cases for us to be convinced it's dangerous in this case we have testimony from the very doctors that that discovered this that examined the con agra plants and they said that there were hundreds of cases in the kind of your plants alone so that test we believe these metal head teacher really come up with a reasonable they had this product beginning in one thousand nine hundred one and in fact that is what replaced that i asked of the product because it's no longer being used and it hasn't been used since two thousand and seven so and we gave we gave memorandums and letters and they're in our appendix would say that these are the absolute approval in our diaspora of containing products so yes i believe so i think it's an admission of the appellant in this instance and therefore at least presented a trial issue of fa on this issue and therefore we're we're not saying how every factual issue has to be resolved judge but we did present tribal issues the fact i'm all these points and i think that my clients deserve a trial and that's what we would ask the court to sophisticated intermediary and butter flavors containing thank you on design defect claim appellants presented no expert testimony of a design defect they presented no evidence that you had on was negligent in designing this letter flavors summary judgment is appropriate in sophisticated intermediary cases in appropriate circumstances for example the taylor versus monsanto case they are the eurocopter case both of those cases summary judgment was granted on sophisticated intermediary ground and if there was ever a case that was appropriate for summary judgment on sophisticated intermediary it is this case because khan anger is the textbook example of a sophisticated intermediary as they go about the fact that you are using a respirator for your now this bridge so this is why what i was preparing to address the questions of fact that mr mclean mention there are events because the events relating to con agra and their sophistication and their primary ingredient in the vinegar that you use in your kitchen so while respirators may often be required around acetic acid there is never been a suggestion that respirators are required when people are using the nigger to cook in their kitchens so the behavior of a product as a in its rall form does not translate to a completely different product that may contain that ingredient as a small percentage and even was this kid intermediary they would know that  would know about butter flavors as a sophisticated intermediary what they need to know that you're using respirators when it was a pure product and you weren't necessary to use them when it was or so i don't think that it's necessary for them to know that as a sophisticated because the sophisticated intermediary analysis requires them maybe the jury should have the term well if that the facts are what to con agra no or the question is what did con agra know about butter flavors it has known the in fact the evidence is that connector is the one that would specify turn it up reduce it because they knew that i asked steele is the ingredient that gave the battery to denote a quantity it's unclear whether they knew the exact percentage of diasur however the science that has developed about what are flavors containing diasur teel do not distinguish between butter flavors based on the amount of diocese you niehaus will tell you if a butter flavor contains going to judge ripples question earlier in the time line the the answer to your question your honor is as is clear on the face of the documents in aug thirteenth  tastemaker instituted operational procedures for diaster deal in its plan and the undisputed testimony is that it was because it irritated eyes that is that docket for sixty six dash twelve we have about a former employee that had passed away and the corner was trying to figure out what was the cause of her death and then in december of one thousand nine hundred two tastemaker learned of two other instances of respiratory illness so this is part of the reason why judge mckinney in evaluating the evidence as a whole concluded that the plaintiff's interpretation the inferences that they seek from the facts are unreasonable as a matter of law and that their facts stretch too far from the evidence presented the the undisputed evidence is that given on started supplying butter flavors containing diacetyl to this plant in two thousand and one we set forth in the briefing a multitude of undisputed facts about con agra knowledge about butterfly verse and judge mckinney recounted those facts in detail in his opinion but there are five facts by themselves that occurred in two thousand and one that are under spirited that show kind of address knowledge workers and i asked came to congress plants and actually measured diasur teel am lung function in congress plants and that's also in two thousand and one third they had a wall street journal article that they distributed to all of their employees that notified them about the investigation that took place in missouri that the employees the former employees of that jasper plant had developed a lot of submitter ons and that  flavors and then recommended reducing exposures to the employees for a kind of agro began working with its own trade association in two thousand and one regarding this very issue of whether butter flavors could cause bronchiolitis of glitter on some popcorn workers they had nyasha come to their meetings and explain the results of their findings to their interests their popcorn industry driven on was not a member of this tra along with other popcorn manufacturers started developing policies in two thousand and one for respirator use around butter flavors and how to minimize employee exposures those are the material facts the facts that relate and that the overwhelming undisputed evidence about congress knowledge about butterfly avers was sufficient grounds to grant summary judgment i was with con agra as a sophisticated intermediary as a matter of wall  do not dispute the facts about congress knowledge of butter flavors beginning in two thousand and one when you have it on the shipping to that plant there is no dispute and because there is no dispute that is why they try to just distract from those und facts by pointing to tastemakers investigation in the one nine hundred ninety s but that even if you assume that their version of events of the in one thousand nine hundred is true it does not change the fact that judge mckinney was the procedures the operational procedures in tastemakers plant regarding brawled i asked a t o went into effect in august of one thousand nine hundred two and the employees the undisputed testimony is that they were not require to wear kitchen when you're cooking dinner and your brother mention background fill fact may help put this in context you have it on is in the middle of a supply chain they buy raw ingredients from suppliers and they use those wrong gradients and they are plants mix them together to make flavors to sell to  manufacturers like con agra diaster teal was one of the ingredients that your daughter tastemaker purchase they didn't manufacture diantha teal and they were entitled to rely on their their diaster suppliers warnings with respect hundred two that a former employee passed away in december of one thousand nine hundred two two other instances of respiratory illness were discovered tastemaker immediately put together a task force they investigated they started researching they hired outside consultants to determine what was the cause of the crime if these people were developing illness because of the plant and if so which wrong greedy it was it the investigation related only t raul ingredients not mixtures that were sold to customers because this is what tastemaker employees worked with so they they hired outside consultants who told them there is nothing in your plant that is a known cause of bronchiolitis to blitter odds so we don't know what is the cause of the respiratory illness in the plant one expert dr brooks told them there was nothing in the plant that was a known cause but he would suspect gum arabic in zines another expert told them he thought that the problem was actually caused by acid out of hide which is a chemical that is unrelated to die acid ceylon it's not in butter flavors so this over this took place over a period of five or six years and at me they hired epidemiologists occupational medicine doctors the gamut this is a company who was taking steps to do the right thing to try to determine if there was something that was causing illness and if so what was the cause toward the end of the one nine hundred ninety six dr lucky the one who had told them that he thought that out a hike was the cause said that tastemaker years and meanwhile people could continue to get sick alternatively tastemaker you can improve them in a way sion in your plan and just simply eliminate all exposures so that you solve the problem which is a perfectly reasonable acceptable approach and that was what was recommended by dr lucky so taking his recommendation tastemaker improved the ventilation throughout its plant it isolated acid out of hired into its own room and then there were no further issues so this these events i will carry out by saying again that these events have nothing to do with what con agra knew about butter flavors beginning at the time that are and started shipping to the plant but when the evidence is construed as a whole and what i just explained the events were it is easy to understand how judge mckinney concluded that the appellant's inferences from the evidence relating to that investigation are simply an reasonable and this case or this court i'm sorry recognize in the taylor versus m expressly that taking documents out of context cannot create a genuine issue of material fact and that a plaintiff's interpretation of documents can be unreasonable as a matter of law and that is exactly what judge mckinney concluded here with respect to the tastemaker investigation of we're all ingredients and then we get to ten thousand wine and the world learns of ny ashes investigation of this popcorn plant john was not a popcorn plant and didn't manufacture the warning and i can't remember the specific question this dolt case that mr mclean mentioned judge bennett and the northern district of iowa found as a matter of law on these bennett and the facts that he outlined in his decision in the stoles decision were exactly the facts that we have included in our briefs and he concluded as a matter of law or was a sophisticated intermediary however he did not grant summary judgment because there was a question of fact on the adequacy of international players and fragrances warning which michigan law required in addition to the sophisticated intermediary here indiana law is clear that if the enemy intermediary has knowledge of the adequacy of the warning is irrelevant the analysis in the eurocopter case in which the this court affirmed a summary judgment that there was no warning given it was undisputed there was no warning at all given yet the intermediary pilots were found to be sophisticated and the same results should occur here the overwhelming undisputed evidence shows that contractor was sophisticated it is appropriate when the when i would call it overwhelming well i think there are more than forty or so undisputed facts outlined in the briefing in the opinions and i just highlighted the fire discipline what good can i ever know about your determination that it was only after the question which you want you had a you had a an expert make an examination made terminations when you started saying will only use respirators in certain areas where that's concentrated and not on the appendix from shit on for the better flavor specifically said respirators are not normally required but if you're using this product in a confined space or a space where there is not adequate ventilation use a respirator and one was given to through out the entire time period i believe the m s t s that they attached was from two thousand which is before z but on ever started supplying to the plant and it is for the the the employer is the only one who knows what the ventilation is what the engineering controls are how the products use it in the plant they have sole control of their employees so it's for the employer to determine whether their attic their ventilation that is confined or not well ventilated respiratory protection is recommended and that's been for con agra to evaluate in the light of its circumstances and determine whether respirators are required for their employees but in two thousand line when  you have it on started supplying to that plant con agra was part of the team who developed respirator requirements for better flavors containing diaster to so regardless of what was on jim from multitude of other sources that were telling it to evaluated the employee exposures and if necessary put them in respirators and they instituted a mandatory respirator policy for mixing room employees so they have as the respirators and when did you notify some of it was less than one percent some of it was over one percent i mean it varied by the for me why didn't you just are using it when it's we didn't tastemaker did not use respirators when diane city it was deluded in mixtures its plant so the information that time that pacemaker was given to connor was consistent with its own procedures in its plant it didn't wear respirator it did not require respirator use around butter flavors containing when tastemaker employees were required to wear respirators when using and i don't believe there's any evidence and you determined that information was not necessary to provide to going to a group because you didn't provide them with hundred percent right that well the warnings that were provided to con agra were provided in accordance with the hazar communications standard and when the the standard says that wait for a mixture the the manufacturer of the mixture is entitled to rely on the information from the suppliers the supplier information said vapor is irritating the throat and lungs and the suppliers of diasur t o were not telling him it on to wear respirators the you have to take it in context of the reason that the operational procedures were put into place was irritation the employees were complaining about their eyes and that that evidence is under speeded so there was no determined diet sitio by the way it was not just used in butter flavors provided to con agra it's in thousands of products and the company would was making mixtures they weren't selling the raw ingredients so it's it's what would they tell people we are people have i or taishan so we've put them in math he'll at the time which is that it was irritating to the throat and lungs and irritating to the skin and eyes and that is the information that was known at the time and that is the information that was on him misty s's for better flavor disclose ingredients as ingredients unless there carsten agenda which is not an issue in this case and there are trade secret has or communication that's where we're getting to treat people right now it's just that that is yes that is not the purpose the purpose is to warn of known health hazards relating to the product the mixture that is being sold in the process we've just gone through you and i just make this really overwhelming and yours well respectfully your honor i think that it is overwhelming because i think that we're mixing apples and oranges diaster teal as a wrong greedy it is one product but are flavors are a different products and the issue is what does con agra kno about butter flavors at the time jim it on started selling to that plant and it knew everything that jim and anu there's not one single piece of paper in the record or anywhere from the one nine hundred ninety s or otherwise where tastemaker where even suspected butter flavors being the cause of illness in its plant so i am like you well over my time thank you give you time counsel i'll be giving counsel some additional time when you finish ok thank you judge council has made an advocate's argument on facts that are disputed at every stage the idea that they didn't know that diaspora was an issue is is is hotly disputed it wasn't that they were that they were they with a very complicated process we put the grid in where they took all the chemicals of the plant and they they compared them on three criteria in terms of where disease had been found in their own plant and in another study that was done in indiana as well and indiana baker study in one thousand nine hundred two that had been done by not and they narrowed it chemicals and that's what the scientists dr rocky and dr mckay and we cite their testimony about how frustrated they were that they were not allowed to to pin it down the reason was disclosed in the stock with that i cited you before and what it said is this and it's under the hazard communications standard had it it says hazard communication standard there is no provision in the not osha standard that requires the immediate dissemination of information regarding a suspect hazard however if we find that there is a specific health hazard present that information will have to be shared with the affected and potentially affected employees that and they can dispute it is that it was determined by them not to proceed to narrow it down to the one chemical at issue because they would have i tell people i think it's a reasonable interpretation a jury may not agree with me but at least i get a trial on that issue i think based upon what i read the standard is in terms of how the court is to interpret the facts in my favor for the purpose of this motion so we dispute her recitation of the facts and what they knew  when they knew it and we do believe that when they said that they utilized respirators working round not only rob i asked them but any time it was heated heated and that's the operative term because that's the release mechanism for butter flavors containing diastole to once you heat them the dye acid all is released into the air and that is then the question is that enough to cause disease and what's been measured out there rensselaer fifty times the level of exposure that nyasha recommends so we have a defective product being used at that plant they have the mechanism and they know the procedures to protect people that is to use respirators and yet not contradict what she told you and we attach this what they say a number tiriel safety data sheet is and well ventilated areas respiratory protection is not normally require that's what they gave us and con agra believe that to be true we have memos and letters to the employees telling them that that they were basing their recommendations on what jim but i'm told them and they believe that jevons product was different and in fact miss rimando as brief says that she says their products are different than the products used at jasper they're all different she claims in regard to the product defect claim but importantly as was pointed out they never told us that they even contain that whatever the way that diet that this product was made it was not dangerous like the wong in jasper at least that's what their testimony is and i had a right i think to have that issue heard by the jury in terms of whether they were a sophisticated user because i don't believe in this circumstance they were sophisticated user as is defined or understood by the law i had had a professor law school that told me one thing that stood me in good stead be careful about the level of generality that your opponent is arguing their case so you can argue that they're sophisticated simply be based upon their size or simply based upon the fact that they were using other flavors in their plant but they hadn't been examining this issue since one thousand nine hundred ninety two they hadn't cloyd an entire team of toxicologists and doctors and other scientists to determine what the risk was they had given i had a tremendous head start that could help everyone and certainly wasn't what would have been helpful to kind of group according to con testimony in this very case so we would appreciate the opportunity as as judge ripple pointed out to be in the normal queue of things to have the sophisticated user defen jury and not decided by a motion for great the verdict all right i'm sorry for summary judgment i appreciate your patience with me my time's up thank you very much con agra perform studies on their butter flavors in the one nine hundred ninety s and they knew what the diocese here percentage was in the the use of diasur again as we stated in our brief the investigation that took place at tastemaker in the one nine hundred ninety s did not have anything to do with butter flavors it was diaster teel it were all ingredients which was used in many many many products the investigation did not give tastemaker origin on any inkling of any suspicion that there was a problem with butter flavors that it was selling to its customers and judge mckinney's recitation of but that assertion is not sufficient to avoid summary judgment their own experts agreed that butter flavors containing diaster can be used safely and indiana law is clear that just because a product may cause  no evidence at all that shit on was negligent in designing its wonderful avers at the district court they presented no evidence including let alone expert evidence of the cost and benefits of an alternative design instead they simply argued that well there was a diaster free flavor available and therefore judgment on its negligence and that is not sufficient to avoid summary and judge parker noted that expert testimony was required and they offered none they've tried to get around that on appeal by by for the first time trying to give the appearance that there are statistics and counsel referenced the levels of diaster in the air none of that evidence to the extent it could even be considered statistical was presented to the district court in opposition to the motion design defect and it can't be considered here but even so they offered no evidence on the probability factor there's no evidence of how many popcorn workers were there at this plant how many of them worked with butter flavors how many of them have confirmed diagnoses of butter full of prog eliza blitter oz and how many of those diagnoses work confirmed to be caused by butter flavors and they have no evidence of of the popcorn population as a whole in the country how many confirmed diagnoses are there so they have no evidence on the probability or frequency of the injury instead they make a passing reference to the number of of concern consultations their litigation expert has made over the last ten years all of which were in the context of litigation with disputed diagnoses and that certainly does not rise to the level of the evidence required they offered zero evidence on the burden of the costs they simply said the diaster feel free flavor was no more expensive with absolutely zero support it was a conclusory unsupported assertion and the same with respect to be at the diety of free formula would have prevented their injuries they have no expert evidence on that either it's a conclusion statement so in other words they offered no expert evidence at all that there is a cost effective alternative design that would have prevented what is you answer my question w