# COTE v. SCHNELL INDUSTRIES

> District Court, M.D. Pennsylvania · November 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10410826

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10410826

## How later opinions describe it (automated extraction)

- holding that to establish “breach of duty in a strict liability matter,” a consumer need only “prove that a seller (manufacturer or distributor) placed on the market a product in a ‘defective condition,’” regardless of whether the seller “exercise[d] reasonable care”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAYTON COTE, No. 4:18-CV-01440

Plaintiff, (Chief Judge Brann)

v.

U.S. SILICA COMPANY, NORFOLK
SOUTHERN CORPORATION,
SCHNELL INDUSTRIES, and FB
INDUSTRIES,

Defendants.

MEMORANDUM OPINION

NOVEMBER 16, 2021
In February 2016, Dayton Cote nearly lost his hand while operating a large,
industrial machine used to transport frac sand. After the accident, Cote filed suit
against four defendants: (1) Schnell Industries, the manufacturer of the machine;
(2) FB Industries, Schnell’s exclusive distributor in North America and the
company that sold the machine to Cote’s employer; (3) U.S. Silica Company, the
owner of the quarry where the sand originated; and (4) Norfolk Southern
Corporation, the company that transported the U.S. Silica’s sand from its quarry to
Cote’s worksite. Cote brought two products liability claims against Schnell and FB
Industries, sounding in negligence and strict liability, and separate negligence
claims against U.S. Silica and Norfolk Southern. Relevant here, U.S. Silica also
filed a crossclaim against Norfolk Southern for contribution.
After concluding discovery, Schnell, FB Industries, and U.S. Silica moved
for summary judgment on the claims brought by Cote. Norfolk Southern likewise

filed a motion for summary judgment as to U.S. Silica’s crossclaim. However, the
evidence presented establishes genuine factual disputes on the issues material to
Cote’s claims against Schnell, FB Industries, and U.S. Silica as well as to U.S.

Silica’s crossclaim against Norfolk Southern. For this reason, as further explained
below, the motions for summary judgment are denied.
I. BACKGROUND
The accident occurred on February 27, 2016 at the transfer yard in Wysox,

Pennsylvania owned and operated by Shale Rail, LLC, a subsidiary of Northeast
Freight Transfer, Inc.1 At the time, Cote worked for Shale Rail, transferring frac
sand from railcars to tractor-trailers using a piece of equipment called a
transloader.2 Under ideal conditions, Cote used the transloader to open a sliding

gate on the bottom of the railcars, out of which sand flowed freely—a process
known as “gravity feeding.”3 But if the sand inside a rail car became wet, it would
not always flow freely onto the transloader (i.e., it would not “gravity feed”).4 To

1 Doc. 51 ¶¶ 2, 45.
2 Id. ¶ 2; see also Doc. 146, Ex. I (Feb. 6, 2020 D. Cote Dep.) 16:23–17:8.
3 Doc. 51 ¶ 36; see also Doc. 169, Ex. 1 (Tarkanian Report).
extract wet, clogged sand from a railcar, Cote and his coworkers had to reach
inside the railcar and manually dislodge the sand.5

On the day of the accident, Cote was unloading sand with his Shale Rail
coworkers Caleb Spencer and Mitchell Jones.6 Although it was neither raining nor
snowing, all railcars that Cote unloaded that day contained wet sand.7 At around

6:30 pm, Cote, Spencer, and Jones were unloading a railcar when the wet sand
inside clogged, preventing it from gravity-feeding from the railcar to the
transloader.8 Cote went down to inspect the railcar’s sliding gate, while Spencer
and Jones remained at the rear side of the transloader.9 Cote attempted to dislodge

the sand by adjusting the railcar door and banging on the outside of the railcar with
a hammer, but these efforts proved ineffective.10 Cote then reached his hand inside
the railcar to manually break up the sand clumps.11

While Cote was dislodging the sand, Spencer used the transloader to close
the railcar gate.12 The gate closed on Cote’s hand, nearly severing it from his arm.13

5 Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) 32:24–33:10, 119:6–120:18; Doc. 146, Ex. P (Feb.
6, 2020 C. Spencer Dep.) 22:6–23:1, 63:16–64:17.
6 Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) 42:12–24.
7 Id. at 96:23–97:6.
8 Id. at 65:3–8; Doc. 146, Ex. P (Feb. 6, 2020 C. Spencer Dep.) 27:13–29:4.
9 Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) at 42:12–43:7, 58:14–20.
10 Id. at 100:3–14, 188:16–189:19, 198:3–7.
11 Id. at 194:16–195:14.
12 Spencer did not realize that Cote’s hand was inside the railcar. See Doc. 146, Ex. P (Feb. 6,
2020 C. Spencer Dep.) 63:14–64:9; Doc. 169, Ex. 5 (C. Spencer Post-Incident Investigation
Statement).
A. The Transloader
The transloader involved in Cote’s accident—a model TLX36—was

designed, manufactured, and sold by Defendant Schnell.14 Schnell had an exclusive
distribution agreement with FB Industries, granting FB Industries sole authority to
distribute the TLX36 transloader in North America.15 As such, FB Industries sold

the transloader involved in Cote’s accident to Northeast Freight Transfer, Cote’s
employer.16 The transloader was designed to transfer frac sand from railcars to
separate holding or transport containers.17 It was equipped with a “power takeoff”
(“PTO”), which opened and closed the railcar’s sliding gate with a hydraulic lever,

rather than a hand crank.18 Once the PTO opened the railcar’s sliding gate, sand
would gravity-feed from the railcar to the transloader’s stinger for sifting.19 The
sand was then carried via conveyor belt to the separate containers.20

In a report analyzing the TLX36 transloader, Cote’s engineering expert,
Michael Tarkanian, P.E., opined that the transloader was defective in the following
respects:

14 Doc. 169, Ex. 10 (Mar. 4, 2020 H. Friesen Dep.) 50:14–21.
15 Id. at 105:3–12.
16 See id. at 59:1–12, 133:1–16 (objections omitted); Doc. 144, Ex. D (Jan. 8, 2020 B. Dueck
Dep.) 121:6–122:16.
17 See Doc. 146, Ex. R (Eagar Report) at 1.
18 Doc. 169, Ex. 1 (Tarkanian Report) at 7–9.
19 Id.
 It failed to contain a “lock out” or “tag out” device to protect users
from hazardous energy;21
 The PTO control panel was located at the rear of the machine,
obstructing the operator from observing the transloder’s stinger;22 and
 The accompanying product manual did not address required
regulatory safety procedures and contained incomplete and
contradictory safety instructions.23
Tarkanian attributed these defects to a lack of engineering input during the design
process.24 Schnell’s chief principal, Fred Dueck, designed the TLX36 transloader,
but he was not an engineer and Schnell had no engineers on staff.25 FB Industries
likewise “had no expertise in engineering,”26 and neither company engaged a third-

party engineer to certify compliance with industry safety standards.27 Indeed, FB
industries’ founder and president testified that the company’s clients have a right to

21 Id. at 2–4, 16–17. Schell argues that per OSHA regulations, the ignition key on the TLX36
transloader “is an energy isolating device” that qualifies as a “lockout” because “turning off
the ignition and removing the key would have prevented the closure of the hopper gate.” Doc.
156 at 22 (citing 29 CFR 1910.147). Tarkanian rejected this assertion, arguing that “a keyed
ignition is not a lock out device” and, thus, “[t]here is no lock out device on the TLX36
according to OSHA 1910.147.” Doc. 169, Ex. 1 (Tarkanian Report) at 3.
22 Doc. 169, Ex. 1 (Tarkanian Report) at 9.
23 Id. at 4–6.
24 Id. at 2–3 (“The lack of engineers, failure to hire third-party engineers, and lack of experience
with OSHA, ANSI and other relevant standards, all contributed to the defective design of
improperly relying on a keyed ignition to be a lock out device.”).
25 Doc. 156, Ex. 15 (Jan. 8, 2020 B. Dueck Dep.) 33:1–25. FB Industries was fully aware of this
fact. See Doc. 169, Ex. 10 (Mar. 4, 2020 H. Friesen Dep.) 50:14–21 (“Q. Okay. When you
asked Fred [Dueck] to get involved in designing a trans loader, were you aware of the fact that
there were no engineers working for the company? A. Yes. Q. Were you aware of the fact that
he had never built a trans loader before? A. Yes.”).
26 Doc. 169, Ex. 10 (Mar. 4, 2020 H. Friesen Dep.) 56:10–12 (“So am I correct that FB had no
expertise in engineering? A. Correct.”).
expect that the company is complying with regulatory and standards28 and that the
company regularly engaged third-party contractors to ensure that its other products

complied with these standards;29 however, FB Industries made no attempt to do so
with the TLX36 transloader.30
Tarkanian opined that these design defects “directly contributed to the
injury of Mr. Cote.”31 In Tarkanian’s opinion, an alternative design—specifically,

equipping the transloader with a lock out device that deactivates the PTO while
permitting the transloader’s separate components (i.e., the stinger and conveyor
belt) to remain operational—would have prevented the accident:

[A] lock out dedicated specifically for the PTO
hydraulics would be required to prevent injuries like Mr.
Cote’s. As Frederick Dueck confirmed in his testimony,
it is feasible to install a solenoid in the hydraulic circuit,
after the PTO control valve, that would prevent hydraulic
pressure from flowing to the PTO when activated.32

28 Doc. 169, Ex. 10 (Mar. 4, 2020 H. Friesen Dep.) 29:12–20.
29 Id. at 23:15–22, 34:17–35:2.
30 Id. at 56:10–57:6, 59:6–12 (objections omitted).
31 Doc. 169, Ex. 1 (Tarkanian Report) at 17; see also id. at 2 (“The lack of engineers at Schnell
Industries Inc. and FB Industries Inc. directly contributed to one design defect—the lack of
lock out capability—in the TLX36 transloader, which in turn contributed to the injury of Mr.
Cote.”).
32 Id. at 7. Tarkanian opined that “[o]ne such device, a hydraulic directional control valve, costs
approximately $170 at retail.” Id. For context, the TLX36 transloader costs approximately
Schnell’s engineering expert admitted that if the TLX36 transloader had been
equipped with a PTO-specific lock out device, the accident would not have

occurred.33
B. The Sand
As noted, Cote suffered the injury at issue while attempting to dislodge wet

frac sand clogged inside a railcar on Shale Rail’s Wysox Rail Yard. At the time of
the incident, Defendant U.S. Silica owned all the frac sand transported to and
through the Shale Rail facility.34 U.S. Silica contracted with Defendant Norfolk
Southern to transport frac sand from its quarries—including its Mapleton Depot

plant located in Mapleton, Pennsylvania—to the Wysox Rail Yard.35 U.S. Silica
loaded its frac sand into Norfolk Southern’s cars, which were designed to prevent
moisture from entering the railcars.36 Norfolk Southern then transported the loaded
railcars to the Shale Rail transfer yard.37

U.S. Silica contracted with Shale Rail to “transload” the sand from Norfolk
Southern’s railcars to trucks owned by U.S. Silica’s fracking customers.38 Per the

33 Doc. 169, Ex. 9 (Feb. 18, 2021 A. de Richmond Dep.) 96:2–18 (“Q. Okay. You would agree
with me that if there was such a lockout system in place that shut off all of the hydraulic circuits
except for the belt while clearing a jam that would have completely eliminated the possibility
that this accident could occur, correct? . . . A. My answer was yes.”) (objection omitted).
34 Doc. 146, Ex. 1 (Feb. 7, 2020 D. Cote Dep.) 299:11–13; Doc. 146, Ex. L (Feb. 6, 2020 E.
Harkins Dep.) 27:10–15. Although U.S. Silica manufactured various sand products, the sand
at issue here is 100 Mesh frac sand. See Doc. 155 at 1 (citing Doc. 146, Ex. C (Sept. 30, 2020
F. Razzano Dep.) 27:16–22; Doc. 146, Ex. D (Oct. 21, 2020 J. Tanner Rice Dep.) 23:21–24:4).
35 See Doc. 51 ¶¶ 34–35; Doc. 63 ¶¶ 34–35; Doc. 143 ¶ 12.
36 Doc. 146, Ex. L (Feb. 6, 2020 E. Harkins Dep.) 203:6–24.
37 Doc. 143 ¶ 12.
contract, Shale Rail was responsible “for the entire transloading and storage
operation,” which required Shale Rail to “provide sufficient personnel, with

appropriate qualifications, equipment, and tools necessary to perform the Services
required by this Agreement.”39 This contract was “exclusive,” meaning that Shale
Rail transloaded sand coming only from U.S. Silica.40

Cote testified that when he first started working at Shale Rail, U.S. Silica
typically delivered only dry sand; however, over time, Shale Rail employees
increasingly encountered wet sand that was difficult to unload.41 Cote stated that
by the winter of 2015–2016, U.S. Silica’s sand was always wet.42 As noted, wet

sand in the railcars disrupted the transloading process because clogging prevented
the sand from gravity-feeding onto the transloader’s conveyor belt.
Shale Rail maintained a written standard operating procedure (“SOP”) for
employees to follow when unloading a railcar containing wet sand.43 The SOP

provided guidance on troubleshooting sand flow issues, including an explicit
prohibition on placing appendages through the railcar gate to encourage sand flow;
only tools were permitted through the gate to dislodge clogged sand.44 And Shale

39 Id. ¶¶ 1(b), 1(h)(vi).
40 Id. ¶ 3.
41 Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) 32:21–33:10.
42 Id.; see also id. at 80:18–23; Doc. 146, Ex. O (Feb. 6, 2020 J. Brink Dep.) 39:1–18 (testifying
that the frac sand from U.S. Silica was “horrible, horrible, horrible sand as far as trying to
transload it.”).
43 Doc. 146, Ex. N (Wet Sand SOP). Cote asserts that the SOP was not in place when the accident
occurred. See Doc. 170 at 16–18. U.S. Silica argues otherwise. See Doc. 155 at 6 n.2.
44 Doc. 146, Ex. N (Wet Sand SOP) at 2 (“If it is deemed necessary to dislodge sand to encourage
Rail provided its employees with tools to dislodge wet sand.45 Nevertheless, Cote
testified that through watching coworkers, he learned to unclog wet sand using his

hand.46 Cote explained that the tools Shale Rail provided were generally
ineffective,47 and that oftentimes the “only way” to dislodge wet sand was by
reaching through the railcar gate with a hand to punch or poke a hole in the
clogged sand.48

Cote’s second engineering expert, Thomas Eagar, opined that U.S. Silica’s
process for loading its frac sand caused moisture condensation inside the railcars
during sufficiently cold temperatures:

The US Silica Company’s Mapleton plant’s practice of
loading hot sand into cold steel rail cars promotes
moisture condensation in a matter of minutes at a
boundary layer between the sand and the cold steel,
creating a layer of caked, jammed sand. As the bulk hot
sand continues to cool over the span of days, all of the air
available in the porosity of the sand will continue to
condense and contribute to jamming. US Silica designed
the loading process using hot sand with its low relative
humidity process, so it would flow readily when being
loaded. Unfortunately, when this hot sand cools down
after loading, the sand still contains its original moisture,
which at low temperatures produces high humidity,
moisture condensation, and clumped sand which makes
unloading more difficult.49

45 Doc. 146, Ex. L (Feb. 6, 2020 E. Harkins Dep.) 61:22–62:19.
46 Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) 32:21–33:10, 119:6–120:2.
47 Id. at 99:2–10, 198:17–199:2.
48 Id. at 80:2–6, 100:6–16, 120:21–121:3.
U.S. Silica’s expert in the manufacturing and shipment of frac sand, Michael
Wick, P.E., disputes Eagar’s findings50 as well as certain factual assumptions

underlying Eagar’s analysis.51 The parties similarly disagree on the number of
railcars containing U.S. Silica 100 Mesh sand at the Wysox Rail Yard on February
27–28, 2016, and the temperature of the railcars when unloaded by Cote and his
colleagues.52 However, during his deposition, Wick acknowledged that U.S. Silica

was required to load sand in a manner that made it safe for unloading.53

50 Doc. 146, Ex. F (Wick Report).
51 For example, Wick challenges Eagar’s assumption that hot sand is loaded into cold railcars,
explaining that sand is stored in metal storage silos before being loaded into Norfolk
Southern’s railcars. Id. at 7–8. U.S. Silica argues that “[i]f the sand does not become wet and
clumpy through condensation while sitting in metal storage silos, which are exposed to the
same atmospheric conditions as the railcars used to transport sand, then it makes no sense that
the sand would do so when loaded into the railcars. Doc. 173 at 14 n.5. In response, Cote
highlights the deposition testimony of U.S. Silica’s project manager, Frank Razzano: “And
you’d agree with me that the sand, after it is – is heated through the dryer system, it remains
hot for the rest of that process; correct? A. It does.” Doc. 146, Ex. C (Sept. 30, 2020 F. Razzano
Dep.) 31:4–8 (objections omitted).
52 U.S. Silica argues that “[o]n the date of Cote’s incident, there were 48 rail cars containing U.S.
Silica sand at the [Shale Rail] Yard, 34 or which contained 100 Mesh sand,” and that “[t]here
is no evidence to establish which of the 34 rail cars of 100 Mesh sand Cote and his co-workers
were attempting to transload when the incident occurred.” Doc. 155 at 3–4 (citing Doc. 146,
Ex. T (Feb. 27, 2016 Snapshot Report)). U.S. Silica contends that “it takes several days for rail
cars to travel from the Mapleton Depot plant to the Wysox Rail Yard” and that “rail cars would
not always be transloaded immediately upon arrival at the Wysox Rail Yard.” Id. Based on the
“Snapshot Report” prepared by U.S. Silica and a railcar “release report” produced by Shale
Rail, Cote asserts that fifteen railcars were unloaded at the Shale Rail transfer yard during the
dates in question (February 27–28, 2016), and the railcars were shipped from either the
Mapleton Depot or U.S. Silica’s plants in Peru, Illinois and Sparta, Wisconsin. Doc. 166 at
35–36. Cote presents weather reports from those locations as of February 2016 as evidence
that “the temperature was low or lower than the sample temperatures utilized in Eagar’s
report.” Id. at 37–38.
53 Doc. 146, Ex. G (Feb. 3, 2021 M. Wick Dep.) 88:7–9 (“Q. Did US Silica have an obligation
to load the sand in a manner that made it safe to unload? A. Yes.”), 127:16–22 (“Q. And you
already agreed with us, that US Silica has an obligation to load sand in a way that does not
create a hazard to unload, correct? A. Yes, they should not load sand—if they can foresee a
Separately, Wick opined that moisture could enter railcars either during
transit or while sitting at the transloading yard:

Moisture can enter railcars through numerous avenues.
Once the railcar leaves the loading facility it is in the
hands of the railroad. Speculating that condensation is the
only cause of wet or damp sand is erroneous. Bulk
covered railcars are not insulated, notoriously leaking,
and not air tight. Moisture can enter through damaged
welded seams, damaged doors, damaged hatches and
other avenues.54
Employees of both U.S. Silica and Shale Rail similarly acknowledged that rain
could enter “poor performing [rail]cars” that are “not sealed correctly.”55 However,
there is no indication that any of the railcars that Cote unloaded on February 27,
2016 suffered any physical defects that allowed external water to enter the cars.56

54 Doc. 146, Ex. F (Wick Report) at 9.
55 Doc. 146, Ex. D (Oct. 21, 2020 J. Tanner Rice Dep.) 29:11–30:2 (“A. . . . [U]ltimately, once
the sand is pulled out of our mine and sent out, you know, we don’t really have control over.
You know, the quality, we are relying on vendors and our partners to take good care of it. Q.
Is that for circumstances that occur after it’s removed from the train cars loaded by U.S. Silica?
A. There could be a number of circumstances. You know, for example, sand, if a railcar is not
sealed correctly, and it rains, you know, you could have wet sand arise that way.”); Doc. 146,
Ex. L (Feb. 6, 2020 E. Harkins Dep.) 129:6–12, 130:3–6 (“Q. Okay. All right. Do you have
any knowledge whosoever of this particular railcar as to – how the degree of wetness of the
sand that was contained therein may have changed during transport? A. There’s all kinds of
factors. That’s a great question. . . . Or sometimes it’s a poor performing car. And even though
the sand was put in dry, it sits for a while or it goes through a very nasty weather area, now
you have a car that is wet, even though it was put in dry.”).
C. Procedural Posture
Cote initiated the instant action on February 26, 2018.57 In response, U.S.

Silica and Norfolk Southern brought crossclaims against each other, and against
Schnell and FB Industries, for contribution and indemnification.58
In January 2019, Schnell moved to dismiss Cote’s claims against it,59 and in

March 2019, filed motions dismiss U.S. Silica’s and Norfolk Southern’s
crossclaims.60 On June 12, 2019, the Court denied Schnell’s motion to dismiss
Cote’s claims, explaining that the Court “has specific personal jurisdiction over
Schnell” and that the allegations in Cote’s Amended Complaint stated claims of

negligence and strict liability.61 The Court similarly denied Schnell’s motion to
dismiss the contribution crossclaims brought against it, but it dismissed the
indemnification crossclaims brought by both U.S. Silica and Norfolk Southern.62

At the conclusion of discovery, four of the five parties involved in this
litigation—Cote, Schnell, FB Industries, and Norfolk Southern—stipulated and

57 Doc. 1; Doc. 51.
58 Doc. 52 (Norfolk Southern’s crossclaims against U.S. Silica and FB Industries); Doc. 76
(Norfolk Southern’s crossclaim against Schnell); Doc. 59 (U.S. Silica’s crossclaims against
Norfolk Southern and FB Industries); Doc. 82 (U.S. Silica’s crossclaim against Schnell).
59 Doc. 58.
60 Doc. 83 (Schnell’s motion to dismiss Norfolk Southern’s crossclaim against it); Doc. 86
(Schnell’s motion to dismiss U.S. Silica’s crossclaim against it).
61 Doc. 90 at 3–7.
agreed to dismiss Norfolk Southern from the case.63 U.S. Silica rejected the
stipulation and maintains its contribution crossclaim against Norfolk Southern.64

Earlier this year, Schnell, FB Industries, and U.S. Silica filed motions for
judgment on the claims brought by Cote, and Norfolk Southern moved for
summary judgment on U.S. Silica’s contribution crossclaim.65 These motions have
been fully briefed66 and are now ripe for disposition.

II. LAW
“One of the principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses.”67 The Supreme Court of

the United States has advised that Federal Rule of Civil Procedure 56 “should be
interpreted in a way that allows it to accomplish this purpose.”68 Summary
judgment is appropriate where “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.”69

Material facts are those “that could alter the outcome” of the litigation, “and
disputes are ‘genuine’ if evidence exists from which a rational person could

63 Doc. 143, Ex. B (Joint Stipulation and Dismissal).
64 Doc. 159.
65 Doc. 150 (Schnell’s motion for summary judgment); Doc. 144 (FB Industries’ motion for
summary judgment); Doc. 146 (U.S. Silica’s motion for summary judgment). Doc. 143
(Norfolk Southern’s motion for summary judgment).
66 Schnell’s motion for summary judgment (Doc. 156; Doc. 168; Doc. 174; Doc. 185); FB
Industries’ motion for summary judgment (Doc. 145; Doc. 170; Doc. 179); U.S. Silica’s
motion for summary judgment (Doc. 155; Doc. 166; Doc. 173); Norfolk Southern’s motion for
summary judgment (Doc. 151; Doc. 159; Doc. 162).
67 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
68 Id. at 324.
conclude that the position of the person with the burden of proof on the disputed
issue is correct.”70 A defendant “meets this standard when there is an absence of

evidence that rationally supports the plaintiff's case.”71 And a plaintiff must “point
to admissible evidence that would be sufficient to show all elements of a prima
facie case under applicable substantive law.”72

A judge’s task when “ruling on a motion for summary judgment or for a
directed verdict necessarily implicates the substantive evidentiary standard of proof
that would apply at the trial on the merits.”73 Thus, if “the defendant in a run-of-
the-mill civil case moves for summary judgment or for a directed verdict based on

the lack of proof of a material fact, the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence presented.”74

“The mere existence of a scintilla of evidence in support of the
[nonmovant’s] position will be insufficient; there must be evidence on which the
jury could reasonably find for the [nonmovant].”75 Part of the judge’s role at this
stage is to ask “whether there is [evidence] upon which a jury can properly proceed

70 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern
Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).
71 Clark, 9 F.3d at 326.
72 Id.
73 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
74 Id.
75 Daniels v. School Dist. of Philadelphia, 776 F.3d 181, 192 (3d Cir. 2015) (quoting Liberty
to find a verdict for the party producing it, upon whom the onus of proof is
imposed.”76 In answering that question, the Court “must view the facts and

evidence presented on the motion in the light most favorable to the nonmoving
party.”77 The evidentiary record at trial will typically never surpass what was
compiled during discovery.

The party requesting summary judgment bears the initial burden of
supporting its motion with evidence from the record.78 For example, while “at the
motion-to-dismiss stage of proceedings a district court is obligated to accept the
allegations in a plaintiff’s complaint as true, it does not accept mere allegations as

true at the summary judgment stage.”79 The moving party must identify those
portions of the “pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.”80 “Regardless of whether the moving

party accompanies its summary judgment motion with affidavits, the motion may,
and should, be granted so long as whatever is before the district court demonstrates
that the standard for the entry of summary judgment, as set forth in Rule 56(c), is

satisfied.”81

76 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.
442, 447 (1871)) (alteration and emphasis in original).
77 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).
78 Celotex, 477 U.S. at 323.
79 Wiest v. Tyco Electronics Corp., 812 F.3d 319, 330 (3d Cir. 2016).
80 Id. (internal quotations omitted).
For movants and nonmovants alike, the assertion “that a fact cannot be or is
genuinely disputed” must be supported by: (1) citations to particular parts of

materials in the record that go beyond mere allegations; (2) a showing that the
materials cited do not establish the absence or presence of a genuine dispute; or (3)
a display that an adverse party cannot produce admissible evidence to support the
fact.82

Summary judgment is effectively “put up or shut up time” for the
nonmoving party.83 When the movant properly supports his motion, the nonmoving
party must show the need for a trial by setting forth “genuine factual issues that

properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.”84 The nonmoving party will not withstand
summary judgment if all it has are “assertions, conclusory allegations, or mere
suspicions.”85 Instead, it must “identify those facts of record which would

contradict the facts identified by the movant.’”86 Moreover, “if a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c),” the Court may “consider the fact

undisputed for purposes of the motion.”87 On a motion for summary judgment, “the

82 Fed. R. Civ. P. 56(c)(1).
83 Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (Fisher, J.).
84 Liberty Lobby, 477 U.S. at 250.
85 Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).
86 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002).
87 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d
court need consider only the cited materials, but it may consider other materials in
the record.”88

Finally, “at the summary judgment stage the judge's function is not himself
to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”89 “If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted.”90

III. ANALYSIS
The parties have four separate motions for summary judgment pending
before the Court. Defendants Schnell, FB Industries, and U.S. Silica seek summary

judgment as to the claims filed by the Plaintiff, Cote. Defendant Norfolk Southern
moved for summary judgment on the crossclaim brough by U.S. Silica. The Court
addresses each motion in turn.

A. Schnell’s Motion for Summary Judgment
In the Amended Complaint, Cote asserts two claims against Schnell,
sounding in negligence and strict liability, based on its design, manufacture, and
sale of the allegedly defective TLX36 transloader.91 Schnell moves for summary

judgment, arguing that based on the evidence available, Cote cannot establish that
the transloader was negligently designed or suffered a material defect, and likewise

88 Fed. R. Civ. P. 56(c)(3).
89 Liberty Lobby, 477 U.S. at 249.
90 Id. at 249–50 (internal citations omitted).
cannot prove that any alleged defect caused Cote’s injuries.92 Further, Schnell
contends that Cote failed to show that the Court can exercise personal jurisdiction

over Schnell.93 The Court finds these arguments unpersuasive and denies Schnell’s
motion for summary judgment.
1. Negligence (Count I)
To establish negligent design and negligent manufacture under Pennsylvania

law, a plaintiff “must show that (1) the manufacturer [owed] a duty to the plaintiff,
(2) the duty was breached, and (3) such a breach was the proximate cause of [the]
plaintiff’s injuries.”94 Here, the evidence establishes that all three elements are

either satisfied or subject to a genuine factual dispute.
First, Schnell does not dispute that it owed a duty to Cote as a user of its
product.95 As such, the first element has been satisfied.
Second, to establish that a defendant in a negligent design case breached its

duty, the plaintiff must “show[] that the Defendant failed to exercise due care in
manufacturing or supplying the product.”96 This inquiry typically “turns on
whether an alternative, feasible, safer design would have lessened or eliminated the

92 Doc. 156 at 21–33.
93 Id. at 33–35.
94 Soufflas v. Zimmer, Inc., 474 F. Supp. 2d 737, 753 (E.D. Pa. 2007) (citing Phillips v. Cricket
Lighters, 841 A.2d 1000, 1008 (Pa. 2003); Dauphin Deposit Bank & Trunk v. Toyota, 596
A.2d 845, 849–50 (Pa. Super. 1991)).
95 See Doc. 156 at 21–26 (contesting only the negligent design and proximate cause prongs of
Cote’s negligence claim).
96 Soufflas, 474 F. Supp. 2d at 754; see also Kline v. Zimmer Holdings, Inc., 662 Fed. Appx. 121,
123 (3d Cir. 2016) (“Demonstrating breach requires showing that the defendant acted
injury [the] plaintiff suffered.”97 Under Pennsylvania law, “expert evidence is
generally required” to establish that a viable alternative design exists.98 After a

plaintiff presents expert testimony that a proposed alternative would have
prevented the accident, “disagree[ments] about the feasibility and efficacy of [the
alternative design] proposal” constitute “dispute[s] of fact requiring resolution at
trial.”99

For evidence of Schnell’s alleged breach, Cote directs the Court to the
findings of his engineering expert, Michael Tarkanian, P.E. Tarkanian opined that
Schnell “did not follow proper engineering protocols or safety standards when

designing, manufacturing and distributing the TLX36 transloader,” and that
“simple, cost-effective” alternative designs would have addressed the design
defects that caused Cote’s injuries.100 Specifically, Tarkanian noted that Schnell

 declined to employ engineers or engage third-party experts in safety to
certify compliance with lock out standards or requirements;
 designed the TLX36 transloader “without a lockout/tagout device to
protect users from hazardous energy”;
 placed “the PTO controls behind the machine where the view of the
stringer is obstructed”;

97 Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38, 64 (3d Cir. 2009) (internal quotation
marks and emphasis omitted).
98 Oddi v. Ford Motor Co., 234 F.3d 136, 159 (3d Cir. 2000).
99 Capece v. Hess Maschinefabrik GmbH & Co. KG, 2015 WL 1291798, at *6 (M.D. Pa. Mar.
20, 2015) (Mariani, J.).
 issued “a product manual that does not address various safety procedures
as mandated by OSHA/ANSI, and is confusing to users”; and
 failed “to conduct any risk assessment during the design phase, particularly
as to hazardous energy control and energy-isolating devices.”101
Tarkanian concluded that these design defects “directly contributed to the
injury of Mr. Cote.”102 In Tarkanian’s opinion, Cote’s injury could have been
avoided if Schnell “install[ed] a solenoid in the hydraulic circuit, after the PTO

control valve, that would prevent hydraulic pressure from flowing to the PTO
when activated.”103 Tarkanian opined that “[o]ne such device, a hydraulic
directional control valve, costs approximately $170 at retail.”104 For context, the

TLX36 transloader costs approximately $136,000.105
Notwithstanding Tarkanian’s opinions, Schnell argues that “there is no
evidence to establish the transloader was negligently designed.”106 Specifically,
Schnell asserts that per OSHA regulations, the ignition key on the TLX36

transloader “is an energy isolating device” that qualifies as a “lockout” because
“turning off the ignition and removing the key would have prevented the closure of
the hopper gate.”107 Cote disputes this opinion, noting that Tarkanian opined that

101 Doc. 168 (citing Doc. 169, Ex. 1 (Tarkanian Report) at 1–9).
102 Doc. 169, Ex. 1 (Tarkanian Report) at 17.
103 Id. at 7.
104 Id.
105 Doc. 168 at 31.
106 Doc. 156 at 27.
“a keyed ignition is not a lock out device” and, thus, “[t]here is no lock out device
on the TLX36 according to OSHA 1910.147.”108

Additionally, Schnell argues that the proposed alternative design is “not
safer because even with the PTO deactivated, Cote would be in contact with or be
in the vicinity of other moving parts of the transloader while energized.” 109 As

such, Schnell asserts that “[t]here is no evidence to establish that the alternative
design proposed by Tarkanian [would have] lessened or eliminated the injury
[Cote] suffered.”110 Again, Cote disputes Schnell’s characterization of the
evidence, arguing that both Tarkanian and Schnell’s expert, Albert de Richemond,

acknowledged “that if such a lockout system were in place, this accident would not
have occurred.”111
As explained, on summary judgment, the Court’s responsibility is to assess

only “whether a fair-minded jury could return a verdict for the plaintiff on the
evidence presented”112—that is, whether facts material to the claim are “genuinely
disputed.”113 The Court finds that the parties’ “disagree[ments] about the feasibility

108 Doc. 168 at 19 (citing Doc. 169, Ex. 1 (Tarkanian Report) at 3).
109 Doc. 156 at 23.
110 Id.
111 Doc. 168 at 21–22 (citing Doc. 169, Ex. 1 (Tarkanian Report) at 17; Doc. 169, Ex. 9 (Feb. 18,
2021 A. de Richmond Dep.) 96:2–18).
112 Liberty Lobby, 477 U.S. at 252.
and efficacy of [the alternative design] proposal” are predicated on genuine
“dispute[s] of fact.” 114 Such factual disputes “requir[e] resolution at trial.”115

The third and final element of the negligent design claim concerns causation:
the plaintiff must show that the defendant’s “breach was the proximate cause of
[the] plaintiff’s injuries.”116 To establish proximate cause, “there must be a finding
that [the] product defect was a substantial factor in bringing about the accident.”117

Notably, “[t]he breach need not be the exclusive cause of the injury, but merely a
substantial cause regardless of whether other factors contributed to the injury.”118
Schnell argues that “[t]he alleged absence of a lockout was not the cause of

Cote’s injuries”; rather, the accident was caused by human error: “No one
operating the machine intended to utilize a lockout but, instead, intended to keep
the machine energized and the hopper gate operational.”119 As a preliminary

matter, the Court finds this argument highly suspect. In effect, Schnell is asserting
that because Cote and his colleagues did not shut off the TLX36 transloader, they
would not have used any alternative safety mechanism—a superseding event that
should doom Cote’s negligent defect claim for lack of causation. If given legal

114 Capece, 2015 WL 1291798 at *6.
115 Id.
116 Soufflas, 474 F. Supp. 2d at 753.
117 DeJesus v. Knight Industries & Associates, Inc., 2016 WL 4702113 at *10 (E.D. Pa. Sept. 8,
2016) (citing Pa. Dep’t of Transp. V. Phillips, 488 A.2d 77, 86 (Pa. 1984) abrogated on other
grounds by Mascaro v. Youth Study Center, 523 A.2d 1118 (Pa. 1987)).
118 Cataldo, 2007 WL 9761661 at *9 (citing Hamil v. Bashline, 392 A.2d 1280, 1284–85 (Pa.
1978)).
effect, this logical leap would bar the judicial gates on a multitude of otherwise
viable products liability claims. Unsurprisingly, Schnell does not cite any legal

authority for this argument.
Be that as it may, Cote presents evidence that directly conflicts this
purported superseding cause. Specifically, Cote notes that Tarkanian and several

fact witnesses stated that “[w]hen clearing jammed sand from the hopper car, the
conveyor belt of the transloader must stay running to move the sand that is
cleared.”120 If deactivated, the transloader would have been unable to move the
dislodged sand along the conveyor belt, causing the sand to build up on, and

potentially spill off, the transloader.121 As such, Cote asserts that deactivating the
transloader was not an option, and his failure to do so provides no insight into how
he and his colleagues would have used Tarkanian’s proposed alternative design,

which deactivates only the PTO and thus permits the conveyor belt to continue
operating.122
Further, Cote reiterates that Tarkanian found that the TLX36 transloader
“design defects . . . directly contributed to the injury of Mr. Cote.”123 As explained,

Tarkanian’s report details the transloader’s alleged design defects, concludes that

120 Doc. 168 at 2–3 (citing Doc. 169, Ex. 1 (Tarkanian Report) at 7; Doc. 169, Ex. 2 (Feb. 7, 2020
D. Cote Dep.) 190:12–192:24; Doc. 169, Ex. 3 (Feb. 6, 2020 C. Spencer Dep.) 57:11–20, 59:2–
4; Doc. 169, Ex. 6 (Feb. 6, 2020 M. Jones Dep.) 56:12–21; Doc. 169, Ex. 7 (Jan. 15, 2021 M.
Tarkanian Dep.) 34:12–35:3, 38:16–20).
121 Id.
122 Id. at 36–37.
the defects contributed the Cote’s injury, and then offers a proposed solution that
arguably would have prevented the accident:

The lack of engineers at Schnell Industries Inc. and FB
Industries Inc. directly contributed to one design defect—
the lack of lock out capability—in the TLX36
transloader, which in turn contributed to the injury of Mr.
Cote. . . . [A] lock out dedicated specifically for the PTO
hydraulics would be required to prevent injuries like Mr.
Cote’s. As Frederick Dueck confirmed in his testimony,
it is feasible to install a solenoid in the hydraulic circuit,
after the PTO control valve, that would prevent hydraulic
pressure from flowing to the PTO when activated.”124
Based on Tarkanian’s assessment of the TLX36 transloader and conclusions about
the nature and effect of the identified defects, a reasonable jury could conclude that
the transloader’s defects were a substantial factor in causing Cote’s injuries.125 To

124 Id. at 2, 7.
125 In its motion for summary judgment, FB Industries similarly argues that Cote failed to establish
causation. See Doc. 145 at 8–13. In addition to the argument that human error constituted a
superseding cause, FB Industries asserts that dismissal for lack of causation is justified based
on the following two prior District Court rulings: Ream v. Ethicon, Inc., 2020 WL 6889238
(M.D. Pa. Nov. 24, 2020) (Kane, J.), and Martinez v. Rees, Inc., 2010 WL 11549929 (E.D. Pa.
Mar. 8, 2010). But these cases are inapposite. In Ream, the court granted the defendants’
motion for summary judgment on the plaintiffs’ products liability claims because the plaintiffs’
“case-specific expert” failed “to establish specific causation.” 2020 WL 6889238 at *4–5. The
court explained that the expert’s report, which was only two pages long, “fail[ed] to identify a
defect in [the product] and explicitly link that defect to the injuries allegedly suffered by [the
named plaintiff].” Id. at *5. Similarly, in Martinez, the court granted summary judgment on
the plaintiff’s defective product strict liability claims because the plaintiff’s expert did not
establish that the alleged defect “actually caused the injury.” 2010 WL 11549929 at *4. The
court explained that although the expert’s report “may establish that the [product] was
defective,” it “says nothing about this alleged defect causing the injury.” Id.

As explained, Tarkanian identified the alleged defects in the TLX36 transloader and explicitly
linked these defects to Cote’s injuries—a conclusion bolstered by Tarkanian’s opinion that an
alternative design would have prevented the accident. Doc. 169, Ex. 1 (Tarkanian Report) at
16–17. Indeed, Schnell’s engineering expert agreed that Tarkanian’s proposed alternative
design would have prevented Cote’s injuries. See Doc. 169, Ex. 9 (Feb. 18, 2021 A. de
the extent Schnell (or FB Industries) disagrees with Tarkanian’s conclusions or
believes that the accident was solely attributable to a superseding cause, “the

question of causation is best left for a jury.”126
Because there are genuine disputes of fact on whether Schnell breached its
duty and whether this breach was the proximate cause of Cote’s injuries, Schnell’s

motion for summary judgment on Count I is denied.
2. Strict Liability (Count II)
Restatement (Second) of Torts § 402A (1965) provides that for a plaintiff to
establish a strict liability claim, he must prove (1) “the product was defective”; (2)

“the defect was a proximate cause of Cote’s injuries”; and (3) “the defect causing
the injury existed at the time the product left the seller’s hands.”127 Here, Schnell’s
challenge to Cote’s strict liability claim centers on the first element: whether the
TLX36 transloader was defective.128

Fastening Systems, L.P., 661 F. Supp. 2d 500, 511–12 (E.D. Pa. 2009), a products liability
action involving an allegedly defectively designed nail gun. There, the plaintiffs’ expert opined
that “notwithstanding Richetta’s decision not to disconnect the nail gun from its air
compressor—had the nail gun been equipped with a safety lock or trigger switch, Richetta
would have been able to avail himself of such a mechanism.” Id. at 12. According to the
plaintiffs’ expert, the safety lock or trigger switch “would have prevented a nail from firing
while temporarily not in use,” thus preventing Richetta’s injury. Id. Based on the expert’s
opinions, the court held that the plaintiffs “presented enough evidence for a reasonable jury to
conclude that the nail gun’s lack of a safety lock was a substantial factor in causing Richetta’s
injuries. Id. at 511–12.
126 Richetta, 661 F. Supp. 2d at 512; see also DeJesus, 2016 WL4 702113 at *11 (holding that
because the defendant failed “to demonstrate that the accident was solely attributable to a
supervening cause,” the question of proximate cause is “best left to the jury”).
127 Sikkelee v. Precision Airmotive Corp., 907 F.3d 701, 709–10 (3d Cir. 2018); see also Davis v.
Berwind Corp., 690 A.2d 186, 190 (Pa. 1997).
128 In addition, Schnell argues that the alleged defect was not the proximate cause of Cote’s
A plaintiff may prove that a “defective condition” exists by showing either
(a) “the danger is unknowable and unacceptable to the average or ordinary

consumer” (the “consumer expectation standard”), or (b) “a reasonable person
would conclude that the probability and seriousness of harm caused by the product
outweigh the burden or costs of taking precautions” (the “risk-utility standard”).129

Notably, the Pennsylvania Supreme Court cautioned trial courts against making
“defective condition” determinations on summary judgment: “Whether a product is
in a defective condition is a question of fact ordinarily submitted for determination
to the finder of fact; the question is removed from the jury’s consideration only

where it is clear that reasonable minds could not differ on the issue.”130
a. Consumer Expectation Standard
Whether a product is in a defective condition under the consumer
expectation standard depends on if “the danger is unknowable and unacceptable to

the average or ordinary person.”131 A product “is not defective if the ordinary
consumer would reasonably anticipate and appreciate the dangerous condition of

causation is common to both a strict liability claim and a negligence claim,” its arguments
against causation “for Cote’s negligence claim applies equally to his strict liability claim.” Id.
(citing Whyte v. Stanley Black & Decker, Inc., 2021 WL 230986, at *12 (W.D. Pa. Jan. 22,
2021)). As explained, there is a genuine factual dispute as to whether the alleged product defect
was a “substantial factor in bringing about the accident.” DeJesus, 2016 WL 4702113 at *10.
The Court therefore declines to grant Schnell summary judgment as to Cote’s strict liability
claim on this basis.
129 Tincher v. Omega Flex, Inc., 104 A.3d 328, 335 (Pa. 2014).
130 Id.
the product and the attendant risk of injury of which the plaintiff complains.”132 To
determine “the reasonable consumer’s expectations,” courts must consider “[t]he

nature of the product, the identity of the user, the product’s intended use and
intended user, and any express or implied representations by a manufacturer or
other seller.”133

Here, the parties dispute the degree of surprise associated with the danger
based on the nature of the product and the reasonable expectations of the intended
user. Specifically, the parties disagree on what safety instructions regarding wet
sand in the hopper cars Cote and the other Shale Rail employees received prior to

the accident,134 and what Cote reasonably should have believed regarding the
safety of clearing wet sand by hand and the operation of the PTO controls.135
Additionally, Schnell argues that “[t]here is no evidence of any express or implied

representation regarding the transloader by Schnell that minimized or mand

132 Id.
133 Id. at 394–95.
134 Compare Doc. 174 at 9 (“Shale Rail employees were instructed on the dangers of putting their
hands through the hopper car gate, were instructed not to put any appendage through the hopper
car gate and, if necessary, to use a tool to stick through the hopper car gate in necessary to
address sand flow issues.”) with Doc. 185 at 3 (“Plaintiff testified that he was never trained on
getting wet sand out of a hopper car, . . . [and] the record demonstrates that there was no ‘wet
sand protocol’ (i.e., ‘use only tools to dislodge wet sand’) at the time of the incident.”).
135 Compare Doc. 156 at 28 (“Cote acknowledged he knew he could be injured if the hopper gate
closed with this hand inside and that the gate could be closed with his hand inside while the
transloader was operating.”) with Doc. 168 at 28 (“[W]hile Plaintiff knew a hopper gate could
injure a person, he also knew that the translaoder’s conveyer belt . . . needed to keep running
in order to clear the sand. Further, Plaintiff testified that it was his belief that the person on the
unknowable the obvious danger.”136 But Cote’s engineering expert asserts the
opposite: “Defendant made various representations, both express and implied,

concerning the isolation of hazardous energy in its manual which are internally
inconsistent, confusing to users, and in violation of OSHA and ANSI standards.”137
These disagreements demonstrate that there is a genuine factual dispute as to

whether the danger of the PTO closing the gate on a worker clearing jammed sand
from the railcar was unknowable and unacceptable to the average or ordinary
customer. Given the Pennsylvania Supreme Court’s express admonition against
issuing a defective condition ruling on summary judgment unless “it is clear that

reasonable minds could not differ on the issue,”138 the Court declines to grant
summary judgment for failure to establish the presence of a defective condition
under the consumer expectation standard.

b. Risk-Utility Standard
The “risk-utility standard” asks whether “a reasonable person would
conclude that the probability and seriousness of harm caused by the product
outweigh the burden or costs of taking precautions.”139 When engaging in the risk-

utility calculus, courts consider a number of factors, including “[t]he usefulness

136 Doc. 156 at 28–29.
137 Doc. 168 at 27.
138 Tincher, 104 A.3d at 335; see also High v. Pennsy Supply, Inc., 154 A.3d 341, 350–51 (Pa.
Super. 2017) (holding that “the trial court erred in entering summary judgment based on its
finding that concrete is not defective” because “a genuine issue of material fact exists as to
whether an ordinary consumer would reasonably anticipate and appreciate the dangerous
condition of concrete and the attendant risk of injury).
and desirability of the product—its utility to the user and to the public”; “[t]he
likelihood that [the product] will cause injury, and the probable seriousness of the

injury”; and “[t]he manufacturer’s ability to eliminate the unsafe character of the
product without impairing its usefulness or making it too expensive to maintain its
utility.”140 As with the consumer expectation standard, the Pennsylvania Supreme

Court held that in nearly all circumstances, determining whether a product is
defective under the risk-utility standard is a task properly left to the factfinder:
[T]he practical reality . . . is that trial courts simply do
not necessarily have the expertise to conduct the social
policy inquiry into the risks and utilities of a plethora of
products and to decide, as a matter of law, whether a
product is unreasonably dangerous except perhaps in the
most obvious of cases (e.g., where injury is caused by a
knife), where a gate-keeper’s function is hardly
necessary.141
In arguing that the TLX36 transloader was not defective under the risk-
utility standard, Schnell mostly reiterates its arguments in opposition to Cote’s
negligent design claim. Specifically, Schnell asserts that during his deposition,
Tarkanian admitted “that turning the ignition key to the off position and removing
the key was an energy isolation device that would prevent energization of the
transloader.”142 Additionally, Schnell argues that “[t]he suggested disconnect to the
hydraulic circuit controlling the PTO, as a simple cost-effective solution to the lack

140 Id. at 389–90.
141 Id. at 380.
of a ‘proper’ lock out device on the transloader, would not have made the product
safer or its absence a product defect” because “[w]ith the disconnect, the

transloader would remain energized and Cote would be in contact with or [in] the
vicinity of moving parts including the wheel drive, the conveyor and the stinger
which was unsafe.”143 Schnell also reiterates that “a disconnect on the hydraulic

circuit controlling the PTO would have prevented the incident only if it were
used”; “[i]f not used, the disconnect would not prevent the incident.”144
As explained, Cote disputes these arguments and has presented sufficient
contradictory evidence to establish a genuine factual dispute.145 Moreover, Cote

argues that the “burden or cost[] of taking precautions” is minimal: “[A]s
demonstrated by [Cote’s] engineering expert, ‘There are simple, cost effective
solutions to the lack of a proper lockout device on the TLX36, that can be
implemented with minimal effort or expense.’”146 Indeed, Tarkanian opined that

one such solution, “a hydraulic directional control valve, costs approximately $170
at retail”—barely a fraction of the $136,000 sticker price of the Schnell
transloader.147

143 Id. at 32–32.
144 Id. at 32.
145 See Doc. 169, Ex. 1 (Tarkanian Report) at 3 (opining that “a keyed ignition is not a lock out
device” and, thus, “[t]here is no lock out device on the TLX36 according to OSHA 1910.147”),
7 (opining that Cote’s injury could have been avoided if Schnell “install[ed] a solenoid in the
hydraulic circuit, after the PTO control valve, that would prevent hydraulic pressure from
flowing to the PTO when activated”).
146 Doc. 168 at 29 (citing Doc. 169, Ex. 1 (Tarkanian Report) at 17).
Consistent with the Pennsylvania Supreme Court’s ruling in Tincher, the
Court finds that based on the evidence available, reasonable minds could disagree

whether “the probability and seriousness of harm caused by the product outweigh
the burden or costs of taking precautions.”148 Therefore, the Court declines to grant
summary judgment for failure to establish the presence of a defective condition

under the risk-utility standard. Schnell’s motion for summary judgment as to
Cote’s strict liability claim is denied.
3. Personal Jurisdiction
In its final argument for summary judgment, Schnell argues that the Court

lacks personal jurisdiction. Specifically, Schnell contends that it did not
“purposefully direct[] its activities at . . . Pennsylvania” and the litigation does not
“arise[] out of or relate[] to [any] such activity.”149 But the Court already
considered this argument—and rejected it.

In denying Schnell’s motion to dismiss in June 2019, this Court held that it
“has specific jurisdiction over Schnell.”150 The Court explained that “Schnell has,
for Northeast Freight’s specific benefit (presumably with the goal of securing a

sale to that Pennsylvania customer), taken the trouble to certify that its products
qualify as ‘steel products’ under the Commonwealth’s Steel Products Procurement

148 104 A.3d at 335.
149 Doc. 156 at 35.
Act.”151 As such, the Court ruled that Schnell “‘deliberate[ly] target[ed]’
Pennsylvania customers ‘as part of its efforts to sell products . . . in Pennsylvania

specifically.’”152
In its dispositive motion, Schnell does not point to any new facts or legal
authority that affect whether this Court can properly exercise personal jurisdiction
over Schnell.153 Instead, Schnell simply repeats and reframes arguments the Court

rejected in June 2019.154 Because Schnell presents no newly-identified factual or
legal developments relevant to the jurisdictional analysis, the Court declines to

151 Id. at 4 (citing L.B. Foster Co. v. Southeastern Pennsylvania Transp. Authority, 705 A.2d 164,
166 (Pa. Commw. Ct. 1997)).
152 Id. (quoting Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018)).
153 Schnell asserts that the steel-products certification does not afford a basis for jurisdiction
because “[t]he certification was not executed by Schnell until 2016 approximately two years
after the transloader was sold.” Doc. 156 at 35. But Schnell offers no explanation of how this
fact affects the analysis underlying the Court’s prior jurisdiction ruling. As Cote explains, this
does not constitute “new evidence”; rather this is merely “a ‘new twist’ on the same
information [Schnell] had prior to this Court’s ruling.” Doc. 168 at 39. Moreover, it is
undisputed that Schnell executed the certification on January 7, 2016—nearly two months prior
to Cote’s injury, see Doc. 169, Ex. 8 (Jan. 8, 2020 B. Dueck Dep.) 141:5–18—and that Schnell
“interacts directly with Pennsylvania customers regarding warranty issues and part and service
issues once [its] products are sold, which customers include Shale Rail and Northeast Freight,
the Pennsylvania entities for which Mr. Cote was working when he was injured,” Doc. 90 at
3–4 (citation omitted).
154 See Doc. 65 at 8–11 (“Cote’s claims against Schnell arise from the negligent or defective
design of the transloader not warranty work, parts sales, or any certification provided by
Schnell. Because the litigation does not arise out of or relate to the alleged activities, the
amended complaint fails to allege a basis for specific personal jurisdiction.”); Doc. 156 at 33–
35 (“[T]here is no meaningful link between the certification and plaintiff’s claims. . . . Given
that the certification did not relate to the transloader at issue and was not made until two years
after Schnell sold the transloader to FB, this litigation does not and could not arise out of or
relate to the certification.”); see also Doc. 90 at 5 (“Schnell then argues that this litigation does
not ‘arise out of or relate to’ its activities in Pennsylvania because Mr. Cote’s claims do not
concern any warranty or parts service completed in Pennsylvania, or the steel-products
certification completed by Schnell for Northeast Freight. Schnell, however, points to no
authority—nor can this Court find any—indicating that jurisdictional analyses should describe
disturb its prior ruling. Accordingly, Schnell’s motion for summary judgment is
denied.

B. FB Industries’ Motion for Summary Judgment
For the products liability causes of action—Count I (Negligence) and Count
II (Strict Liability)—Cote also names as a defendant FB Industries.155 Although
these claims, and the supporting allegations, apply equally to FB Industries and

Schnell, FB Industries filed a separate motion for summary judgment raising two
issues: (1) lack of causation, and (2) the absence of “a cognizable duty of care
owed by FB [Industries] separate and distinct from Schnell.”156 Because FB

Industries’ arguments on causation aligned with those raised by Schnell, the issue
was addressed above. All that remains is the question of whether FB Industries
owed Cote a duty of care. For the reasons provided below, the Court finds that it
did.

The Pennsylvania Supreme Court notes that for more than a century, “all
American jurisdictions have accepted the existence of a duty in tort arising from
the supplier-consumer relationship.”157 Because Pennsylvania incorporated the

Second Restatement into its common law,158 the Commonwealth recognizes two
separate legal duties that all sellers owe their customers: “[T]hose who engage in

155 Doc. 51 ¶¶ 51–80.
156 Doc. 145 at 7–14.
157 Tincher, 104 A.3d at 382.
158 See Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966) (“We hereby adopt the [Restatement (Second)
the business of selling a product are subject to both a duty of care in manufacturing
and selling a product” (i.e., the duty in products liability actions sounding in

negligence) “and a duty to sell a product free from a ‘defective condition’” (i.e.,
the duty in strict liability).159 The Pennsylvania Supreme Court adopted a broad
definition of “seller” in this context, explaining that it refers to “all suppliers of

products engaged in the business of supplying products for use or consumption by
the public.”160
Here, the relationship between Cote and FB Industries is not in dispute: FB
Industries sold the TLX36 transloader involved in Cote’s accident to Northeast

Freight Transfer, Cote’s employer.161 Nevertheless, FB Industries argues that Cote
“presents no . . . evidence and, in fact, does not even allege a cognizable duty of
care owed by FB [Industries].”162 FB Industries asserts that because it “is not a
designer or manufacturer of the TLX36,”163 it is not subject to the “seller’s duty in

tort to a consumer.”164 That is wrong.
Contrary to FB Industries’ claim, Pennsylvania law does not limit products
liability claims to only suits brought by consumers against “designer[s] or

159 Tincher, 104 A.3d at 383.
160 Francioni v. Gibsonia Truck Corp., 372 A.2d 736, 739 (Pa. 1977).
161 See Doc. 169, Ex. 10 (Mar. 4, 2020 H. Friesen Dep.) at 59:1–12, 133:1–16 (objections
omitted); Doc. 144, Ex. D (Jan. 8, 2020 B. Dueck Dep.) 121:6–122:16.
162 Doc. 145 at 13.
163 Doc. 179 at 4.
manufacturer[s]”165 of defective products. When the Pennsylvania Supreme Court
in Tincher sought to clarify the “nature of [the] duty” in the supplier-consumer

relationship, it held that “those who engage in the business of selling a product”
may be held liable in both negligence and strict liability.166 Instead of limiting the
scope a seller’s duty, the Pennsylvania Supreme Court affirmed that the duty is
expansive.167 The Pennsylvania Supreme Court gave no indication that this duty—

either in negligence or strict liability causes of action—applies only to sellers that
designed or manufactured the products at issue.
In support of its proposed understanding of the seller’s duty to its customers,

FB Industries directs the Court to Musser v. Vilsmeier Auction Co.168 and Nath v.
Nat’l Equip. Leasing Corp.169 But neither case offers FB Industries the refuge it
seeks. In Musser, the Pennsylvania Supreme Court held that auctioneers are not

“sellers” subject to strict liability in defective products actions because “[t]he
auction company merely provided a market as the agent of the seller.”170
Nevertheless, the Pennsylvania Supreme Court emphasized that this ruling did not

165 Doc. 179 at 4.
166 104 A.3d at 383; see also Sikkelee, 907 F.3d at 709 (“Under Pennsylvania law, a seller may be
liable in strict liability and negligence for injuries caused by its defective products.”).
167 Tincher, 104 A.3d at 384 (holding that to establish “breach of duty in a strict liability matter,”
a consumer need only “prove that a seller (manufacturer or distributor) placed on the market a
product in a ‘defective condition,’” regardless of whether the seller “exercise[d] reasonable
care”); see also Phillips, 841 A.2d at 1008 (“Strict liability examines the product itself, and
sternly eschews considerations of the reasonableness of the conduct of the manufacturer.”).
168 562 A.2d 279 (Pa. 1989).
169 439 A.2d 633 (Pa. 1981).
disturb its “broadened” application “of the term ‘seller’ to anyone who, as a
supplier, enters into the business of supplying the public with products which may

endanger them.”171 Unlike an auction house, FB Industries did not merely create a
market through which independent sellers and consumers could exchange goods
for money; FB Industries was “in[] the business of supplying the public with”

TLX36 transloaders, and indeed sold the transloader on which Cote was injured to
Cote’s employer.172
In Nath, an employee injured while operating a wire and cable stripping
machine brought a strict liability defective product claim against the financing

agency that provided Nath’s employer the funding needed to purchase the
machine.173 The Pennsylvania Supreme Court rejected Nath’s claim, explaining
that “there was no intention of extending the coverage of Section 402A”—that is,

imposing strict liability—“to transactions that are designed solely for financing
purposes.”174 Instead, strict liability for the “supplier of products” applies only to
“the one that has the control over the product and places it within the stream of
commerce.”175 Here, FB Industries is not the financier of the TLX36 transloader,

171 Id. at 281.
172 See Doc. 170 at 6 (“Fred Dueck then designed the Schnell transloaders, including the subject
transloader, which FB [Industries] exclusively distributed throughout North America. [FB
Industries] sold the subject transloader to Northeast Freight/Shale Rale with full knowledge
that it was designed by non-engineers and without any engineering input to ensure safety
compliance.”) (citing Doc. 169, Ex. 10 (Mar. 4, 2020 H. Friesen Dep.) 105:3–12)).
173 439 A.2d at 633–34.
174 Id. at 635.
uninvolved in the specifics of the transaction; FB Industries sold the transloader to
Cote’s employer, making it directly responsible for “plac[ing] [the transloader]

within the stream of commerce.”176
Moreover, Cote presented substantial evidence establishing that FB
Industries was—and should have been—involved in selecting and certifying the

safety and reliability of the products it sold. FB Industries’ founder and President,
Henry Friesen, testified that FB Industries “worked on designs along with outside
engineers to design and manufacture frac sand handling equipment for the oil field
industry, which consisted of vertical silos and conveying systems.”177 Friesen was

directly involved in the discussions with Schnell about building and marketing
transloaders—indeed, Friesen went with Schnell’s chief principal, Fred Dueck, to
North Dakota to “take a look” at an existing transloader before Schnell began
designing and manufacturing its transloaders.178

Friesen acknowledged that FB Industries’ customers have the right to expect
that the company’s products comply with regulatory and industry standards, and
FB Industries often engaged third-party engineers to ensure that certain products it

sold were compliant.179 However, Friesen admitted that FB Industries made no
effort to confirm safety compliance for the TLX36 transloader at issue,180 and

176 Id.
177 Doc. 169, Ex. 10 (Mar. 4, 2020 H. Friesen Dep.) 34:20–35:2.
178 Id. at 45:12–24, 48:10–49:9, 57:8–23.
179 Id. at 23:15–22, 34:17–35:24.
neither FB Industries nor Schnell conducted any failure mode analyses or risk
assessments at any point prior to shipping it.181 Notwithstanding FB Industries’

claims to the contrary, this evidence establishes that FB Industries was actively
involved in assessing, and exhibited substantial “control over,” the products it
sold.182 The legal duty that FB Industries, as a seller, owes its customers is not

obviated simply because it sold “the actual TLX36 at-issue here” without ever
“possess[ing]” it or taking any of the expected steps to ensure that it complied with
the regulatory and industry standards.
Based on a review of the Pennsylvania Supreme Court’s jurisprudence on

products liability claims, the Court sees no basis for adopting the more restrictive
interpretation of a seller’s duty in tort to a consumer that FB Industries proposes. In
short, Pennsylvania law does not shelter sellers who are only minimally involved

in the design and manufacture of the products they sell. The Court therefore finds
that FB Industries, as the company that sold the TLX36 transloader involved in
Cote’s accident to Cote’s employer, owed Cote the widely accepted duty that all
sellers owe to their customers. FB Industries’ motion for summary judgment is

denied.

181 Doc. 169, Ex. 8 (Jan. 8, 2020 F. Dueck Dep.) 52:6–53:13.
C. U.S. Silica’s Motion for Summary Judgment
As noted, Cote’s Amended Complaint includes a single cause of action

against U.S. Silica: Negligence, based on, among other things, U.S. Silica’s alleged
improper loading of moist and/or wet sand products into the hopper cars Cote was
responsible for unloading.183 To prevail on a negligence claim, a plaintiff must
present evidence sufficient to establish the following four elements:

(1) a duty or obligation recognized by the law requiring the defendant to
conform to a certain standard of conduct for the protection of others against
unreasonable risks;
(2) defendant’s failure to confirm to the standard required;
(3) a causal connection between the conduct and the resulting injury; and
(4) actual loss or damage resulting to the plaintiff.184
U.S. Silica’s motion for summary judgment specifically relates to elements one
and three—that is, U.S. Silica argues that Cote has not shown that it owed him a
“duty of care . . . to deliver dry sand for transloading or to provide tools for

unloading wet sand from rail cars” and, separately, that “any actions or omissions
of U.S. Silica caused Cote’s injuries.”185 The Court disagrees.
1. Duty of Care
As the Pennsylvania Supreme Court has explained, “[t]he primary element

in any negligence cause of action is that the defendant owes a duty of care to the

183 Doc. 51 ¶¶ 92–102.
184 R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005).
plaintiff.”186 The existence of a duty owed by one party to another “is a question of
law for the court to decide.”187 A plaintiff may establish duty by looking to

standards of care previously recognized and accepted under state common law.188
Or, where no relevant duty of care applies, a plaintiff may ask a court to articulate
a new duty.189

Notably, the Pennsylvania Supreme Court counsels against analyzing
whether to create a new duty “simply because appellate decisional law has not
specifically addressed a theory of liability in a particular context.”190 Before
engaging in the “full-blown public policy assessment” required to establish a new

legal duty, courts must first ascertain whether the case is simply “one involving
application of an existing duty to a novel factual scenario.”191 In such
circumstances, courts need only determine whether the existing common law duty
applies in this context as well.192

Cote’s negligence claim against U.S. Silica concerns an existing duty long
recognized by Pennsylvania courts: a company engaged in the shipment of goods

186 Althaus ex rel. Althuas v. Cohen, 756 A.2d 1166, 1168–69 (Pa. 2000).
187 Manzek, 888 A.2d at 746.
188 See Dittman v. UPMC, 196 A.3d 1036, 1044–48 (Pa. 2018).
189 See Althaus, 756 A.2d at 1169–70 (“The determination of whether a duty exists in a particular
case involves the weighing of several discrete factors which include: (1) the relationship
between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk
imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon
the actor; and (5) the overall public interest in the proposed solution.”).
190 Scampone v. Highland Park Care Center, 57 A.3d 582, 599 (Pa. 2012).
191 Dittman, 196 A.2d at 1046.
“ha[s] a duty to perform its undertakings in relation to the cargo with due care.”193
In Kunkle v. Continental Transp. Lines, the Pennsylvania Supreme Court affirmed

a jury verdict against the shipping company Continental Transportation Lines in
favor of Kunkle, a truck driver who was injured while transporting cargo on behalf
of Continental.194 Specifically, Kunkle got into an accident when attempting to

pass a vehicle on the highway—while maneuvering around the other car, Kunkle
lost control of the steering and crashed into a telephone pole.195 Kunkle brought
suit against the shipper for negligently loading the cargo into his delivery truck,
arguing that Continental’s failure to evenly distribute the weight of the cargo

caused him to lose control of the truck.196 The jury returned a verdict for Kunkle.197
In affirming the jury verdict, the Pennsylvania Supreme Court held that “it was
[Continental’s] responsibility to see that no dangerous condition would be created
by what was going aboard finally.”198

Twelve years after the Pennsylvania Supreme Court’s ruling in Kunkle, the
United States District Court for the Eastern District of Pennsylvania in

193 Spence v. ESAB Group, Inc., 623 F.3d 212, 218 –19 (3d Cir. 2010) (citing Manzek, 888 A.2d
at 747 (“[A] duty arises only when one engages in conduct which foreseeably creates an
unreasonable risk of harm to others.”); Kimble v. Mackintosh Hemphill Co., 59 A.2d 58, 71
(Pa. 1948) (“Although individuals are not required to guard against every risk they conceive
to be possible, they are under a legal duty to prevent hazards which they can forecast as
possible.”)).
194 92 A.2d 690 (Pa. 1952).
195 Id. at 690–91.
196 Id.
197 Id. at 691.
Jablonowski v. United States applied the legal duty articulated in Kunkle to the
factually distinct but related circumstance involving an injury that occurred during

the unloading of a railcar containing heavy crates.199 The railcar in question was
loaded at the federal prison in Lewisburg, Pennsylvania and shipped to
Jablonowski’s employer in Philadelphia, where the accident occurred.200

Jablonowski, along with two other employees, were ordered to unload the
railcar.201 Because the heavy crates were loaded into the railcar without being
properly secured in place, when Jablonowski went to unload the railcar, one of the
crates “fell upon him causing severe injuries.”202 Analyzing Kunkle alongside

American Jurisprudence 2d, the court held that “it seems likely that Pennsylvania
law would permit recovery by an employee of a consignee when the employee is
injured because of improper loading of a railroad freight car by a consignor.”203 As

such, the court held that “the defendant was negligent in the way it loaded the
boxcar in respect to its duty to exercise reasonable care to protect employees of the

199 230 F. Supp. 740 (E.D. Pa. 1964).
200 Id. at 742.
201 Id.
202 Id.
203 Id. at 742–43; see also 13 Am.Jur.2d Carriers § 357 (“A shipper may have a duty to exercise
reasonable care to load a shipment in a manner reasonably safe for unloading and failure to
exercise such care may render the shipper liable for personal injury to or the death of a
consignee or his or her employee which is proximately caused by such a failure, at least so
long as the person injured or killed was entitled to do the unloading and was exercising proper
consignee from possible injury when they were in the act of unloading the
cargo.”204

In 2010, the United States Court of Appeals for the Third Circuit analyzed
Kunkle in the case Spence v. ESAB Group, Inc.205 There, the plaintiff was injured
when his tractor-trailer overturned as he was rounding a curve.206 The plaintiff was
transporting cargo packed, loaded, and braced by the defendant company.207

Although the plaintiff raised concerns about the way the load, which consisted of
welding supplies packaged in in boxes and cartons, was blocked and braced, the
defendant responded that “it never had a problem with any of its loads.”208 The

plaintiff asserted that the accident occurred because the load shifted laterally.209
Applying Kunkle and the Restatement (Second) of Torts § 323,210 the Third Circuit
held that “[t]hose who undertake the task of loading, securing, and hauling cargo

on tractor-trailers have a duty to exercise due care to protect property and persons

204 Id. at 743.
205 623 F.3d 212 (3d Cir. 2010).
206 Id. at 213.
207 Id.
208 Id. at 214.
209 Id.
210 “One who undertakes, gratuitously or for consideration, to render services to another which he
should recognize as necessary for the protection of the other’s person or things, is subject to
liability to the other for physical harm resulting from his failure to exercise reasonable care to
perform his undertaking, if (a) his failure to exercise such care increases the risk of harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.” Restatement
(Second) of Torts § 323; see also Gradel v. Inouye, 421 A.2d 674, 677 (1980) (“Section 323(a)
of the Restatement [(Second)] of Torts has been part of the law of Pennsylvania for many
from the risk of harm.”211 Although “[t]he primary duty to assure that a load does
not shift in transit generally rests with the carrier and its driver[,] . . . where there is

evidence that a shipper undertook to load and secure the cargo being transported by
a third party carrier, the shipper also bears an obligation to exercise reasonable
care.”212

Consistent with Kunkle, as applied in Jablonowski and Spence, the Court
finds that U.S. Silica owed Cote a duty to load its cargo in a manner reasonably
safe for unloading. Specifically, “it was [U.S. Silica’s] responsibility to see that no
dangerous condition would be created by what was going on board finally.”213 As

held in Jablonowski, this duty applies equally to the company contracted to unload
the shipment (i.e., Shale Rail) and the company’s employees responsible for doing
the unloading—most notably, Cote.214

U.S. Silica contests this interpretation of the case law, arguing that the Third
Circuit in Spence explicitly narrowed the scope of the duty first articulated in
Kunkle by holding that courts may impose this duty only “when a shipper goes
beyond merely loading a product on a trailer, and takes affirmative actions to

secure the product or makes affirmative representations about its statements.”215
U.S. Silica contends that because “there is no evidence that [it] did anything other

211 623 F.3d at 222.
212 Id.
213 Kunkle, 92 A.2d at 691–92.
214 230 F. Supp. At 742–43.
than load its sand into the Norfolk Southern rail cars,” it did not owe a duty of care
to Cote.216 That is incorrect.

First, the Third Circuit in Spence was confronted with a different type of
accident caused by different type of shipping concern. In Spence, the plaintiff
suffered injuries when his tractor-trailer overturned on the road—an accident

allegedly caused by the improperly secured cargo packed, loaded, and braced by
the defendant.217 The Third Circuit’s holding regarding the duties a shipper
assumes when it “takes affirmative actions to secure the product”218 thus relates to
liability for injuries suffered when loads “shift in transit.”219 Here, the cargo at

issue (frac sand) was poured directly into the railcars; the sand was not packaged in
separate crates that needed to be “blocked and braced” or secured in some other
fashion.220 Therefore, the limiting language in Spence that U.S. Silica cites does

render the duty inapplicable.
Second, to the extent there is a corollary in the present case for the required
“affirmative actions” articulated in Spence, it would relate to the affirmative steps
U.S. Silica took to ensure that the sand could be successfully gravity-fed from the

railcar through the railcar door and onto the transloader. U.S. Silica asserts that it
“did not affirmatively represent to Shale Rail, either through its statements or

216 Doc. 173 at 8.
217 623 F.3d at 213–14.
218 Doc. 155 at 20.
219 Spence, 623 F.3d at 222.
actions, that Shale Rail’s employees would not have to transload sand that, on
occasion, would be wet and require additional effort to gravity-feed out of the rail

cars.”221 But that’s not quite right.
U.S. Silica undertook extensive efforts to dry its frac sand before loading it
for transport,222 and contracted with Norfolk Southern to have its frac sand shipped

in “contained” railcars with closed tops, “removable lids,” and “gravity-fed
bottom-release doors.”223 U.S. Silica went to such lengths to ensure the sand
remained dry because it recognized that it could not “process” wet sand—that is,
“gravity feeding and running sand through shoots does not work well when the

sand is wet.”224 Indeed, based on his understanding of U.S. Silica’s operations and
relationship with Cote’s employer, U.S. Silica’s expert, Michael Wick,
“acknowledge[d] that U.S. Silica was required to load its sand in a manner that
made it safe for unloading—i.e., gravity-feeding onto a transloader.”225

221 Doc. 155 at 21.
222 Doc. 146, Ex. C (Sept. 30, 2020 F. Razzano Dep.) 17:7–22:4 (describing the “three different
methods that U.S. Silica employs at Mapleton to dry this sand”).
223 Doc. 166 at 32 (citing Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) 227:16–20; Doc. 146, Ex.
L (Feb. 6, 2020 E. Harkins Dep.) 203:18–21).
224 Doc. 136, Ex. G (Sept. 30, 2020 F. Razzano Dep.) 22:15–23:7).
225 Doc. 166 at 17; see also Doc. 146, Ex. G (Feb. 3, 2021 M. Wick Dep.) 88:7–9 (“Q. Did US
Silica have an obligation to load the sand in a manner that made it safe to unload? A. Yes.”),
127:16–22 (“Q. And you already agreed with us, that US Silica has an obligation to load sand
in a way that does not create a hazard to unload, correct? A. Yes, they should not load sand—
For these reasons, the Court rejects U.S. Silica’s argument that under Spence,
“U.S. Silica did not owe a duty of care to [Cote].”226 The Court thus declines to grant

U.S. Silica summary judgment on this basis.
2. Causation
After demonstrating that a defendant owed plaintiff a duty of care and
breached that duty, “it is incumbent on [the] plaintiff to establish a causal

connection between defendant’s conduct and the plaintiff’s injury”—that is, “the
defendant’s conduct must be shown to have been the proximate cause of plaintiff’s
injury.”227 To establish proximate causation, “a plaintiff must adduce evidence to

show that the defendant’s act was a substantial factor in bringing about the
plaintiff’s harm.”228 Notably, the Pennsylvania Supreme Court “has never insisted
that a plaintiff must exclude every other possible cause for his or her injury,”; in
fact, it has “consistently held that multiple substantial causes may combine and

cooperate to produce the resulting harm to the plaintiff.”229 As such, “once a
plaintiff has established facts from which a jury could reasonably conclude that
defendant’s actions were a substantial factor in bringing about the harm, the fact

that some other cause concurs with the negligence of the defendant in producing an

226 Doc. 173 at 8.
227 Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978).
228 Rost v. Ford Motor Company, 151 A.3d 1032, 1049 (Pa. 2016).
injury does not relieve the defendant from liability unless he can show that such
other cause would have produced the injury independently of his negligence.”230

Additionally, the Pennsylvania Supreme Court has explained that when the
legal duty at issue stems from the Restatement (Second) of Torts § 323, “the
degree of certitude normally required of plaintiff’s evidence in order to make a

case for the jury as to whether a defendant may be held liable for the plaintiff’s
injuries” is “relax[ed].”231 Specifically, “[o]nce a plaintiff has introduced evidence
that a defendant’s negligent act or omission increased the risk of harm to a person
in plaintiff’s position, and that harm was in fact sustained, it becomes a question

for the jury as to whether or not that increased risk was a substantial factor in
producing the harm.”232
Section 323 provides the following:

“One who undertakes, gratuitously or for consideration,
to render services to another which he should recognized
as necessary for the protection of the other’s person or
things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable
care to perform his undertaking, if
(a) his failure to exercise such care increases the
risk of harm, or

230 Hamil, 392 A.2d at 1285 (internal quotation marks omitted).
231 Id. at 1286; see also Estate of Hayes By and Through the Administratrix of His Estate Hayes
v. Coatesville Hospital Corp., 2021 WL 1853561, at *11 (Pa. Super. May 10, 2021) (affirming
that the Pennsylvania Supreme Court’s ruling in Hamil—that “the effect of Section 323(a) was
to relax the degree of certainty ordinarily required of a plaintiff[’]s evidence to provide a basis
upon which a jury may find causation”—is “the longstanding precedent of this
Commonwealth”) (internal quotation marks omitted).
(b) the harm is suffered because of the other’s
reliance upon the undertaking.” Restatement
(Second) of Torts § 323.
As the Third Circuit held in Spence, the legal duty at issue here “is consistent with,”
and flows from, Section 323.233 Therefore, to establish causation at this stage and
avoid summary judgment on this basis, Cote need only “introduce[] evidence that
[U.S. Silica’s] negligent act or omission increased the risk of harm to a person in

[Cote’s] position, and that harm was in fact sustained.”234 Cote has met this burden.
As proof that U.S. Silica’s frac sand loading practices “increased the risk of
harm to a person in plaintiff’s position,”235 Cote identifies three predicate facts: (a)

in the winter of 2015–2016, U.S. Silica owned every granular of frac sand at the
Wysox Rail Yard;236 (b) on the day of the incident, Cote unloaded several railcars
containing U.S. Silica frac sand and each railcar contained wet sand;237 and (c)
Cote was injured while attempting to dislodge from a railcar at the Wysox Rail

Yard sand that “was too wet to gravity-feed from the railcar to the transloader.”238
Cote then argues that “[t]he evidence establishes that U.S. Silica’s process for
loading and shipping its frac sand guaranteed that under sufficiently cold

temperatures, as occurred that winter, the sand unloaded at Shale Rail would be

233 623 F.3d at 222.
234 Hamil, 392 A.2d at 1286.
235 Id.
236 Doc. 166 at 2, 31 (citing Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) 299:11–13; Doc. 146,
Ex. L (Feb. 6, 2020 E. Harkins Dep.) 27:10–15).
237 Doc. 166 at 32; see also Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) 96:23–97:6.
wet.”239 For this, Cote directs the Court to the report prepared by his expert,
Thomas Eagar:

The US Silica Company’s Mapleton plant’s practice of
loading hot sand into cold steel rail cars promotes
moisture condensation in a matter of minutes at a
boundary layer between the sand and the cold steel,
creating a layer of caked, jammed sand. As the bulk hot
sand continues to cool over the span of days, all of the air
available in the porosity of the sand will continue to
condense and contribute to jamming. US Silica designed
the loading process using hot sand with its low relative
humidity process, so it would flow readily when being
loaded. Unfortunately, when this hot sand cools down
after loading, the sand still contains its original moisture,
which at low temperatures produces high humidity,
moisture condensation, and clumped sand which makes
unloading more difficult.240
Cote asserts that “[v]iewed in a light most favorable to [him],” the predicate facts
and Eagar’s findings establish “that it is more likely than not that U.S. Silica’s
process of loading its hot sand into cold railcars had caused, or at least
substantially contributed to, the wet sand that Cote was unclogging when his hand
was partially amputated.”241
U.S. Silica disagrees, challenging both the sufficiency of Cote’s cited
causation evidence and the reliability of Eagar’s expert opinions. First, U.S. Silica
argues that “Cote cannot prove causation because he cannot prove that any actions

239 Doc. 166 at 40.
240 Doc. 146, Ex. R (Eagar Report) at 15.
or omissions of U.S. Silica caused the sand to become wet in the car.”242 U.S.
Silica asserts that based on the evidence, it is equally as likely that the sand may

have become wet while “in transit from the Mapleton Depot plant to the Wysox
Rail Yard” or while “sitting in the rail car at the Wysox Rail Yard.”243 But even if
true, that is not a basis for dismissing Cote’s negligence action against U.S. Silica

on summary judgment. As noted, because this is “a situation to which Section
323(a) applies,” Cote needs only to demonstrate that U.S. Silica’s loading practices
“increased the risk of harm”—whether “that increased risk was a substantial factor
in producing the harm” then “becomes a question for the jury.”244 Here, Cote has

made a prima facie showing that U.S. Silica’s conduct increased the risk of injury
Cote suffered; the existence of other plausible explanations for how the accident
occurred does not negate this showing.

Moreover, even if the Court was permitted to engage in the “substantial
factor” analysis at this juncture, the Court would nevertheless find U.S. Silica’s
arguments unpersuasive. Under Pennsylvania law, the existence of an alternative
explanation for an accident justifies dismissal on summary judgment only if the

defendant “can show that such other cause would have produced the injury
independently of his negligence.”245 Here, U.S. Silica has made no such showing.

242 Doc. 155 at 30.
243 Doc. 155 at 28 –30 (citing Galullo v. Federal Express Corp., 937 F. Supp. 392, 394 (E.D. Pa.
1996).
244 Hamil, 392 A.2d at 1286–88.
As Cote argues, the railcars used to transport U.S. Silica’s frac sand were designed
“to prevent its supposedly dry sand from being exposed to water while in transit or

while sitting in the rail yard”246: the railcars “are ‘contained units’ having closed
tops with ‘removable lids’ and ‘gravity-fed bottom-release doors.”247 Additionally,
“there is no evidence that Cote unloaded defective railcars on the day of the
accident.”248 Given that, whether U.S. Silica’s frac sand was exposed to water

while in transit or while sitting at the Wysox Rail Yard remains an open question.
Such questions are for the jury to answer.
Second, U.S. Silica argues that Eagar’s expert opinions “regarding how the

sand became wet” are inadmissible because they are based on “several fatal
assumptions, including (1) the sand that Cote was transloading was loaded onto the
rail car when it was still at an elevated temperature from the drying process, and

(2) the sand that Cote was transloading was loaded and shipped within a week of
the incident.”249 As a preliminary matter, the Third Circuit has held that “in
deciding whether an expert’s report meets the reliability factor of a Daubert and
Rule 702 analysis, the District Court is not to weigh the evidence relied upon or

determine whether it agrees with the conclusions reached therein.”250 As such,

246 Doc. 166 at 32 (internal quotation marks omitted).
247 Id. (citing Doc. 146, Ex. I (Feb. 7, 2020 D. Cote Dep.) 277:16–20; Doc. 146, Ex. L (Feb. 6,
2020 E. Harkins Dep.) 203:18–21).
248 Id. at 31.
249 Doc. 155 at 31–33 (citing Fedorcyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 73 (3d Cir.
1996)).
when an expert’s testimony is “contradicted by other evidence, . . . the existence of
[such] conflicting evidence [is] not a basis on which to exclude [the expert’s]

testimony.”251 U.S. Silica’s disagreements with the factual assumptions underlying
Eagar’s conclusions thus affect only the weight, not the admissibility, of Eagar’s
opinions.

Additionally, Cote has presented facts that, when considered in a light most
favorable to him, support the assumptions upon which Eagar’s opinions rest.
During his deposition, U.S. Silica’s plant manager, Frank Razzano, testified that
U.S. Silica’s frac sand remained at an elevated temperature when gravity-fed from

the silos into railcars.252 Further, Cote cites a “Snapshot Report” prepared by U.S.
Silica and a Railcar “Release Report” produced by Shale Rail as evidence that
fifteen railcars were unloaded at the Wysox Rail Yard during the dates in question

(February 27–28, 2016), and the railcars were shipped from either the Mapleton
Depot or U.S. Silica’s plants in Peru, Illinois and Sparta, Wisconsin.253 Based on a
review of weather reports for those locations as of February 2016, “the temperature
was low or lower than the sample temperatures utilized in Eagar’s report.”254 And

during his deposition, Razzano acknowledged that “same as its Mapleton Depot,

251 ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 290 (3d Cir. 2012).
252 Doc. 146, Ex. C (Sept. 30, 2020 F. Razzano Dep.) 31:4–8 (“Q. And you’d agree with me that
the sand, after it is – is heated through the dryer system, remains hot for the rest of that process;
correct? A. It does.”) (objection omitted).
253 Doc. 166 at 35–36.
U.S. Silica’s plants in Illinois and Wisconsin—where three of the [twelve] cars
were loaded—have no radiant cooling system for cooling its frac sand before

loading the product into railcars.”255
As is to be expected, U.S. Silica disputes these facts.256 But, again, resolving
such factual disputes is a task for the jury—not the Court on summary judgment.

D. Norfolk Sothern’s Motion for Summary Judgment
Norfolk Southern asks the Court to grant summary judgment on U.S.
Silica’s crossclaim, arguing that U.S. Silica has no evidence to support a claim that
moisture in the frac sand was attributable Norfolk Southern’s actions or failure to

act.257 In response, U.S. Silica asserts that the evidence presented “makes it equally
as plausible, if not more plausible, that the sand that [Cote] was attempting to
transload became wet during the water infiltrating the rail car during transport to,
or after its arrival at, the Wysox Rail Yard.”258 As such, U.S. Silica argues that if

its motion for summary judgment “is denied, including [its] argument that [Cote]
cannot establish causation, then Norfolk Southern’s [m]otion must also be
denied.”259 On this, the Court agrees with U.S. Silica.

As noted, because this is “a situation to which Section 323(a) applies,” U.S.
Silica (as cross-plaintiff) needs only to demonstrate that water entering Norfolk

255 Id. at 38 (citing Doc. 146, Ex. C (Sept. 30, 2020 F. Razzano Dep.) 34:7–35:13).
256 See Doc. 174 at 11–15.
257 Doc. 151.
258 Doc. 159 at 10.
Southern’s rail cars “increased the risk of harm”—whether “that increased risk was
a substantial factor in producing the harm” then “becomes a question for the

jury.”260 Neither U.S. Silica nor Norfolk Southern contests that Cote was injured
while attempting to dislodge wet frac sand inside a railcar owned and transported
by Norfolk Southern. During their depositions, witnesses testified that sand could

become wet in one of two ways: (1) during the loading process; or (2) through
exposure to water while in the railcar either during transit or while sitting at the
transloading yard.261
U.S. Silica argues that the first explanation is undercut by compelling

circumstantial evidence—specifically, “wet sand was found in rail cars during the
warmer months, not just during months when rail cars would have been loaded
when cold,”262 and “only a small percentage of cars that arrived at the Wysox Rail
Yard contained wet sand.”263 Conversely, according to U.S. Silica, the deposition

testimony establishes that second explanation is more likely, as multiple witnesses
testified that “it is commonly known that sand may become wet through water that
infiltrates rail cars that are not properly sealed.”264

260 Hamil, 392 A.2d at 1286–88.
261 Doc. 159 at 3 (citing Doc. 146, Ex. D (Oct. 21, 2020 J. Tanner Rice Dep.) 17:20–18:4, 29:24–
31:5; Doc. 146, Ex. L (Feb. 6, 2020 E. Harkins Dep.) 129:11–130:12).
262 Id. at 11 (citing Doc. 146, Ex. F (Wick Report) at 10; Doc. 146, Ex. H (Dwell Reports)).
263 Id. (citing Doc. 146, Ex. L (Feb. 6, 2020 E. Harkins Dep.) 205:11–15; Doc. 146, Ex. F (Wick
Report) at 10, 14 –15; Doc. 146, Ex. H (Dwell Reports)).
264 Id. 10–11 (citing Doc. 146, Ex. D (Oct. 21, 2020 J. Tanner Rice Dep.) 29:17–30:2; Doc. 146,
Ex. L (Feb. 6, 2020 E. Harkins Dep.) 129:6–12, 130:3–6; Doc. 146, Ex. G (Feb. 3, 2021 M.
Norfolk Southern disputes U.S. Silica’s characterization of the testimony.
Specifically, Norfolk Southern asserts that U.S. Silica’s liability expert, Michael F.

Wick, admitted that “[i]t is pure speculation as to the origin of the water that
created the wet sand in the rail car,”265 and that neither Shale Rail’s Project
Manager and Safety Officer (Eric Harkins) nor U.S. Silica’s Strategy Manager
(John Tanner Rice) offered any “concrete facts” to support U.S. Silica’s claim.266

However, Norfolk Southern does not dispute that the moisture in the railcars was
attributable to either U.S. Silica’s loading process or water entering Norfolk
Southern’s railcars. The testimony undercutting the loading process theory thus

constitutes circumstantial evidence that the moisture in the frac sand was
attributable to Norfolk Southern’s railcars.267
Because U.S. Silica has presented evidence that Norfolk Southern’s railcars

are to blame for the wet sand, it has met its burden of showing that Norfolk
Southern’s actions or omissions “increased the risk of harm.”268 That is enough for
U.S. Silica’s crossclaim against Norfolk Southern to survive summary judgment.269

265 Doc. 151 at 2 (quoting Expert Report of Michael F. Wick).
266 Doc. 162 at 6 (citing Doc. 146, Ex. L (Feb. 6, 2020 E. Harkins Dep.) 130:13–21); Doc. 146,
Ex. D (Oct. 21, 2020 J. Tanner Rice Dep.) 17:20–21.
267 See Smith v. Bell Telephone Co. of Pa., 153 A.2d 477, 480 (Pa. 1959) (“The facts are for the
jury in any case whether based upon direct or circumstantial evidence where a reasonable
conclusion can be arrived at which would place liability on the defendant.”); see also Joseph
v. Scranton Times L.P., 129 A.3d 404, 429 (Pa. 2015) (“[T]he plaintiff may establish causation
with any evidence, direct or circumstantial . . . .”).
268 Hamil, 392 A.2d at 1286–88.
269 Even if the Court were to engage in the “substantial factor” analysis, the Court would
nevertheless deny Norfolk Southern’s motion for summary judgment. As noted, the existence
IV. CONCLUSION
At summary judgment, the role of the Court is to determine only whether a

reasonable jury could return a verdict for the non-moving party based on the
evidence presented—that is, whether there is a genuine issue for trial. Here, the
Court finds that there are genuine factual disputes on issues material to the claims

and crossclaim in question. As such, the motions for summary judgment are
denied.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

unless he can show that such other cause would have produced the injury independently of his
negligence.” Hamil, 392 A.2d at 1285 (internal quotation marks omitted). Norfolk Southern
has failed to make this showing. Although Cote has presented evidence that “U.S. Silica’s
process for loading and shipping its frac sand guaranteed that under sufficiently cold
temperatures, as occurred that winter, the sand unloaded at Shale Rail would be wet,” Doc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410826. Public record. Not legal advice.