State Supreme Court Takes Controversial Asbestos Case

The California Supreme Court agreed last week to review an asbestos case involving an important failure to warn theory. See Webb v. Special Electric Co. Inc., No. S209927 (Cal., 2013).

Plaintiff Webb was diagnosed with mesothelioma, which he attributed to his exposure to asbestos products, including Transite pipe allegedly manufactured by Johns-Manville at its plant in Long Beach,
California, which allegedly contained asbestos supplied to it by Special Electric.  Transite pipe was four inches in diameter, and came in five-foot and sometimes ten-foot lengths. It was typically used for water-heater venting. Webb alleged he used no gloves or respiratory protection when handling the pipe. 

After trial, the lower court decided it would hear Special Electric's motions for nonsuit and directed verdict, both of which argued, inter alia, that Special Electric had no duty to warn Johns-Manville of the dangers of asbestos, either because Johns-Manville had been warned of those dangers, or because the dangers were obvious and known to Johns-Manville, a sophisticated user of asbestos. Special Electric argued also that it had no duty to take measures to warn allegedly unsophisticated downstream users of products containing its asbestos, such as Webb, because Special Electric could rely on Johns-Manville to provide those warnings. The trial court agreed, concluding that "telling Johns-Manville about asbestos is like telling the Pope about Catholicism." In so doing, the trial court relied on the well-settled rule that sophisticated users of dangerous products need not be warned about dangers of which they are already aware, derived from Restatement Second, Torts, section 388.

Plaintiff appealed, and the court of appeals reversed. Much of the discussion was on procedural issues (timing and notice, etc.) but our focus is on the alternative ruling on the merits.  The court of appeals agreed that Johns-Manville was a sophisticated user of asbestos, one which needed no warning about its dangers. But, nevertheless, reversed, finding that whether all the asbestos shipped to Johns-Manville had warnings, whether the warnings were adequate, and whether reasonable efforts to warn downstream
users could have been undertaken by Special Electric, were issues of fact. The jury found that Webb had
been exposed to asbestos sold or supplied by Special Electric; that the risks of its asbestos products were known or knowable to Special Electric; and that the risks of Special Electric‘s asbestos products presented a substantial danger to consumers, that ordinary consumers would not recognize. Special Electric‘s duty to warn foreseeable potential users such as Webb, said the court, arose as a matter of law, as seen from the jury‘s fully supported findings.  Because Special Electric‘s duty existed as a matter of law, the jury was entitled to—and did—find from the evidence that Special Electric breached that duty and that its breach was a substantial factor in causing Webb‘s harm, whether some other factors (such as superseding cause) terminated Special Electric‘s share of liability, and the appropriate apportionment of liability between the various actors.

The state Supreme Court will consider the issues now, and tell us what happened to the sophisticated user doctrine.  The concern is that the court of appeals appears to be saying that it can be a tort to fail to tell a customer something they already know, and that it can also be a tort to fail to impose on a direct customer a contractual duty to do something with their customer they already have a tort duty to do. On causation, the dissent offered a cogent analogy: if a defendant in an automobile collision breached the duty of care by driving a car with nonfunctioning headlights, then the plaintiff cannot prove causation merely by demonstrating that the defendant’s car caused the plaintiff‘s injuries when they collided. Rather, the plaintiff must show that the defendant’s driving with nonfunctioning headlights caused the plaintiff’s injuries (because, for example, the accident happened in the dark of night rather than in broad daylight). The case arguably can be limited to unique facts, procedural posture, and some strange jury instructions, but perhaps the high court will clarify that the California courts cannot ignore the sophisticated user doctrine and its impact on duty to warn. 


Appeals Court Applies Sophisticated User Doctrine

A California appeals court earlier this month affirmed a trial court's dismissal of a product liability failure to warn claim, based on the sophisticated user doctrine. Walkowiak v. MP Associates, No. B220494, (Cal. Ct. App., 2d App. Dist., 3/9/11)(not published).

Plaintiff Christopher Walkowiak began working for a special effects company in the movie industry in 1994. His boss had a Class 1 Pyrotechnic Operator license, and Walkowiak received on-the-job training in special effects. He obtained a Class 3 Pyrotechnic Operator license in 1995 and a Class 2 license in 1998. In order to obtain these licenses, Walkowiak had to obtain references from pyrotechnicians and pass a written examination. The written examination was general in nature and did not cover every specific types of explosive device used in productions.

Defendant MP Associates (MP) manufactures pyrotechnic devices. Defendant Roger George Rentals (RGR) rents and sells special effects supplies, including pyrotechnic devices manufactured by MP. Its primary clientele is the entertainment industry. One of the products they sold was a simulated stinger missile (SSM). The SSM consists of a cardboard tube with a red plastic cap on one end and a white plastic cap on the other end. The tube contains pyrotechnic materials near the end with the red plastic cap. Prior to ignition, the white plastic cap is to be removed. Upon ignition, a pellet of pyrotechnic material is propelled out of the end of the tube by gunpowder. It produces bright white light and smoke, and it travels about 200 feet. It simulates the appearance of a missile. Pretty clever, and can fool the camera.

The SSM had a sticker on the side of the cardboard tube which read, “Dangerous. Handle With Care. Keep Fire Away.” This was a standard warning that MP placed on all of the pyrotechnic devices it sold. The SSM also had a piece of tape over the white plastic cap which read, “Remove Before Ignition. This Side Up.” Once the tape was removed, there was nothing on the SSM to indicate which end was to face up. Packaging materials which came with the SSM included a list of “Dos and Don’ts” which applied to pyrotechnic devices in general. The list included the warning not to “use any explosive material unless completely familiar with safe procedures for their use, or under the direction of competent, experienced persons.” However, the packaging materials did not include any specific instructions for use of the SSM.  The manufacturer sold SSMs only to purchasers with a Class 1 or Class 2 Pyrotechnic Operator license. And the company would personally discuss use of the SSM with the purchaser. Since 1998, MP had reportedly sold over 20,000 SSMs. Until the accident in this case, there had been no misfires or injuries resulting from the use of an SSM.

On January 18, 2007, Walkowiak was working on the movie set for “Charlie Wilson’s War.”  His supervisor instructed Walkowiak to test fire an SSM that had been leftover from a previous production, using the same shoulder launcher that had been used in “Over There.” The shoulder launcher consisted of a steel tube bolted to a rifle stock. The steel tube was closed at the end bolted to the rifle stock. The SSM was loaded into the open end of the steel tube. It was fired by means of a battery-operated power switch which was connected to the SSM by wires. Walkowiak’s Class 2 license allowed him to use the SSM fired from a shoulder launcher under the supervision of a Class 1 license holder.

But Walkowiak had not worked on “Over There.” He had never fired an SSM before or seen an SSM loaded into a shoulder launcher. He had not seen any instructions for using the SSM. What he did know was that the SSM was a controlled pyrotechnic device that was potentially dangerous. He knew that he should get questions regarding its use answered before using it. Walkowiak called one of the defendants and asked how to operate the shoulder launcher. Defendant told him how to wire and prepare the launcher. He did not tell Walkowiak how to load the SSM into the launcher, however. Before loading the SSM into the shoulder launcher, Walkowiak saw tape with printing on one end of the SSM. He did not recall seeing the words “Remove Before Ignition” or “This Side Up” on the tape. However, he understood these words to mean that the cap and tape should be removed before discharging the SSM, and “This Side Up” referred to the discharge end of the SSM.

Walkowiak removed the cap and the tape from the SSM. Walkowiak made the decision as to how to load the SSM into the shoulder launcher. Walkowiak loaded the SSM into the shoulder launcher and connected the wires. He believed he was loading the device safely and correctly. He knelt down and pointed the shoulder launcher toward a wall. After a countdown, Walkowiak fired the device. There was an explosion and a bright flash of light. The SSM exploded in the steel tube. The steel tube broke off the rifle stock and hit Walkowiak in the face, causing severe injury. It was determined that he had loaded the SSM in backwards.

Plaintiff sued the various parties in the chain of distribution of the SSM.  The trial court dismissed the claim.  The trial court explained that merely because an accident has occurred, there is no presumption of a defect or negligence.  In this case, Walkowiak had not shown that the device had any physical, manufacturing or design defect. There was no evidence of even a single incident where the device was used properly but caused this kind of injury.  Therefore, the trial court noted, the only potential basis for imposing liability on defendants was the breach of a duty to warn of a danger. The court added, however, that product liability cannot be based on failure to warn of a danger that is known or obvious to a user, under California law. Failure to warn of a danger that is generally known and recognized does not, by itself, render a product dangerous.

Plaintiff appealed. The court of appeals discussed the doctrine of sophisticated user. In explaining the development of the sophisticated user defense, the state Supreme Court had begun with the general principle that manufacturers have a duty to warn consumers about the hazards inherent in their products. This enables consumers to avoid the hazards through careful use of the products or refraining from using the products altogether.  However, the sophisticated user defense exempts manufacturers from their typical obligation to provide product users with warnings about the products’ potential hazards. It provides that sophisticated users need not be warned about dangers of which they are already aware or should be aware. Because these sophisticated users are charged with knowing the particular product’s dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause. The rationale supporting the defense is that the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers. This is because the user’s knowledge of the dangers is the equivalent of prior notice.

In California, a manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger. An objective test applies, because it would be nearly impossible for a manufacturer to predict or determine whether a given user or member of the sophisticated group actually has knowledge of the dangers because of the infinite number of user idiosyncrasies. Hence, even if a user was truly unaware of a product’s hazards, that fact is irrelevant if the danger was objectively obvious to the expert user.  And, the defense applies to both negligence and strict liability causes of action.

Here, Walkowiak’s own deposition testimony supported the finding that he was a sophisticated user of pyrotechnics. He had a Class 2 Pyrotechnic Operator license and years of experience in special effects. He knew that the SSM was a controlled pyrotechnic device and potentially dangerous. He understood the nature of the warnings provided on and with the SSM. He knew to ask for instructions on how to operate the device, and in fact asked for some information. In other words, said the court, Walkowiak knew or should have known of the risk involved in use of the SSM.

That Walkowiak did not have experience using the SSM and could only use it under supervision did not establish that he was unaware of the risks associated with its use. His testimony established that he was aware of the risks: he knew the SSM was dangerous, and he understood the nature of the warnings on the device, “Remove Before Ignition” and “This Side Up.” He simply did not know how to use the SSM with the shoulder launcher. Plaintiff could cite no authority, however, that would require a manufacturer not only to apprise a user of the risks associated with use of its product but also to provide instruction on how to use the product in a device it did not manufacture. 

(The court remanded the design defect claim, under the risk benefit test, as the trial court had jumped the gun on its conclusion that an alternate design would make the SSM unsuitable for other uses.)


Sophisticated User/Bulk Supplier Defenses Applied In Chemical Case

In a wrongful death suit brought by the family of a chemical plant employee, the U.S. District Court for the Southern District of West Virginia predicted last week that West Virginia would allow the application of the “sophisticated user” and “bulk supplier” defenses to the plaintiff's product liability claim. Roney, et al. v. Gencorp, et al., No. 3:05-cv-00788 (S.D. W.Va. Sept. 4, 2009).

From 1965 until 1982, Mr. Roney worked at the Pantasote Corporation/Gencorp Inc. Polyvinyl Chloride plant in Point Pleasant, West Virginia. There, he worked extensively with vinyl chloride monomer (“VCM”) – a major raw component of Polyvinyl Chloride (“PVC”). VCM is now associated in some scientific studies with the particular form of liver cancer – angiosarcoma – to which Mr. Roney succumbed. Mr. Roney’s estate filed suit against the defendants for failure to disclose their alleged full knowledge of the danger of VCM and for failing to warn Mr. Roney of its hazardous nature.

Such cases raise, as readers of MassTortDefense know, the related and difficult issues of the duty and ability of a remote supplier of a bulk product to warn downstream users, the customers or employees of their actual customers.  The issue is complicated by the duty of the supplier's immediate customer, in its own right, to warn its customers and to provide a safe workplace for its own workers.  When should that independent or separate duty, imposed on a party who is arguably in a more direct position to pass on effective warnings, cut off the chain of causation flowing up to the remote supplier?  And what about when the employer/intermediate customer is itself an expert in the potential hazards of the product?

Here, in defense of the failure to warn claim, the main product supplier asserted that it had no duty to warn because that duty was obviated by the employer’s own duty to warn its workers. Such a defense, commonly referred to as a “sophisticated user” defense, is available in many states but had not been explicitly adopted or rejected in the state courts of West Virginia. In some jurisdictions the stress is on the bulk supplier aspect and the practicability of warning downstream users; in others the emphasis is in the knowledge of the customer.  Here, the court addressed both aspects.

Section 388 of the Restatement (Second) of Torts addresses a supplier’s potential liability
for a “Chattel Known to Be Dangerous for Intended Use.” Comment n of this section is commonly cited as the basis for the sophisticated user defense: There is necessarily some chance that
information given to the customer will not be communicated by him to those who are to use the
chattel. This chance varies with the circumstances existing at the time the chattel is turned over to the person, including the known or knowable character of the third person and the purpose for which the chattel is given. "Modern life would be intolerable unless one were permitted to rely to a certain extent on others' doing what they normally do, particularly if it is their duty to do so."

Plaintiff relied on the fact that the West Virginia Supreme Court has rejected the learned intermediary doctrine, a defense plaintiff claimed was similar to the sophisticated user defense. See State ex Rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W.Va. 2007). The reasoning of that decision, questionable in its own right, is not applicable to a scenario outside of the prescription pharmaceutical context and the rise of direct-to-consumer advertising. In deciding Karl, the court had recognized that through such DTC advertising pharmaceutical companies had arguably gained direct access to patients, a relationship starkly different than that which had existed when the learned intermediary doctrine was developed – when patients received drug information exclusively through their doctors. And starkly different from the industrial context. Chemical workers would typically have had little opportunity to influence the choice of products to which they would be exposed. Instead, they relied upon their employer to determine the scope of their duties and their role in the production process. They were insulated from the manufacturer of the chemicals they used, much as the patient used to be insulated from the drug manufacturer, observed the court.

The duty to warn, said the federal court, involved an analysis of the reliability of the third party as a conduit of necessary information about the product; the magnitude of the risk involved; and the burdens imposed on the supplier by requiring that it directly warn all users. That, in turn, included the degree to which the danger related to the particular product is clearly known to the  purchaser/employer. Thus, West Virginia would recognize a sophisticated user defense.

As with the sophisticated user defense, the bulk supplier notion is rooted in Restatement § 388
comment n. While the sophisticated user defense focuses on the reasonableness of reliance on the employer, the bulk user defense concerns the burden which would be imposed on the supplier if it were bound to directly warn all downstream users.  The impracticability of the manufacturer getting a warning for a chemical shipped in tank trucks or rail cars to the employees of the customer would also be recognized as a defense in the state, predicted the federal court.

The court rejected the defendant's third assertion that the dangers of vinyl chloride monomer are “open and obvious," as the connection between cancer and VCM is not readily known outside scientific, medical and industrial communities, said the court.


California Supreme Court Recognizes "Sophisticated User" Doctrine

The California Supreme Court recently expanded potential defenses for manufacturers who are alleged to have failed to warn about risks associated with their products. In Johnson v. American Standard, 179 P.3d 905, 74 Cal.Rptr.3d 108 (Cal. 4/3/08), the Court adopted the so-called “sophisticated user” doctrine, holding that a manufacturer has no duty to provide warnings to plaintiffs who should already be aware of product hazards because of their professional training or expertise.

Part of the analysis of a duty to warn claim is the identity of the person to whom a duty to warn may be owed. A second part of the analysis, assuming a duty exists, is whether a failure to warn can be the legal cause of the injury alleged. Two important doctrines affect this analysis.

  • One is the so-called bulk supplier doctrine. In many contexts, a chain of commerce exists in which the manufacturer may not be in privity with end users or consumers. As explored in Section 388 of the Second Restatement of Torts, comment n, does a supplier exercise due care by fully warning his immediate customer, and entrusting the communication of the necessary information to users farther down the chain? Courts have generally focused on a number of factors in deciding whether the upstream supplier is reasonable in so doing. First, what are the burdens involved in requiring the manufacturer or ultimate supplier to directly warn the end users? Second, how reliable is the intermediate, the employer, the intermediate purchaser, as a conduit for the necessary information to the downstream user? And third, what is the magnitude of the risks involved, balanced against those burdens?

    In a number of product contexts, it is very difficult for the supplier to reach the end user directly. The manufacturer may not know who the end users are. The supplier may not have a practical means of reaching the end users with warning information because of the nature of the product and how it is shipped. Thus, a number of cases in this area are “bulk supplier” cases in which he chemical or other product is sold or delivered in bulk and then repackaged in other containers by the intermediate users; the original containers which might have warning information never reach the end users. The product might be combined with other products sold by others. The product might be unloaded, conveyed or stored in a manner such as to defeat any original warnings. The nature of the warning may be such that only the end user can take appropriate precautions for safe use. The existence of numerous suppliers may potentially confuse the information flow. Safety may not be enhanced by requiring the manufacturer to do more than warn the immediate customer. Purvis v. PPG Industries, 502 So.2d 714 (Ala. 1987); Adams v. Union Carbide, 737 F.2d 1453 (6th Cir. 1984). Many courts apply the same notion to strict liability warnings cases. E.g., Smith v. Walter C. Best, Inc., 927 F.2d 736 (3d Cir. 1990). Of course, is some product contexts, regulations impact the duty, such as the Material Safety Data Sheet (MSDS) that must accompany certain hazardous chemicals, and must be made available by employers to employees potentially exposed to those chemicals in the workplace.


  • The second related notion arises when those downstream users are themselves expert in the safe handling and use of the product, perhaps even as knowledgeable as the original manufacturer. This raises the sophisticated user doctrine.

Background of the Decision

The California opinion involved a suit brought by an air conditioning technician who suffered from lung disease (pulmonary fibrosis) allegedly caused by exposure to phosgene gas. Plaintiff Johnson alleged the defendant knew that phosgene gas can cause a potentially fatal lung disease, and would be released when evaporators were serviced. The defendant allegedly failed to provide adequate warnings about the hazard. Plaintiff was a certified HVAC technician who alleged he was exposed to phosgene gas while welding in the course of repairing an air conditioning unit made by the defendant. Phosgene gas is formed when R-22, a hydrochlorofluorocarbon refrigerant, is exposed to flame or high heat. The plaintiff had gone to trade school where he was allegedly trained in the risks of toxic exposure during welding, received a study guide for a certification exam offered by the EPA that addressed those risks, and passed a five-part test to obtain the EPA’s highest level of certification. That certification was mandatory for any technician to work on commercial air conditioning systems. Whenever the plaintiff purchased refrigerant for those systems, he was supposed to have received an MSDS advising of the risk, and his employer was also required to provide him with job training addressing those risks.

In addition, expert testimony established that the specific health risks associated with inhaling heated refrigerant were widely known in the profession.  American Standard also argued that it was widely known by industry technicians that R-22, when heated, can decompose into toxic byproducts including phosgene. The Environmental Protection Agency requires HVAC professionals to understand decomposition products of refrigerants at high temperatures, the defendant argued. 74 Cal.Rptr.3d at 112-113.

Plaintiff's Version

Johnson testified that although he read material data safety sheets every time he purchased the refrigerant, he did not understand that he should avoid heating it. In deposition, Johnson testified that he did not learn in training that phosgene gas could be created when refrigerant lines were brazed, or that phosgene could cause lung damage. He said he never heard of phosgene until he got sick. Although he read the MSDS for R-22, Johnson said he understood the warning about hot metal as a caution against heating metal, not against heating R-22. 74 Cal.Rptr.3d at 114, 122.

Sophisticated User Doctrine

The air conditioning equipment maker (other defendants had reportedly settled or been dismissed) raised the defense, arguing that the sophisticated user doctrine is specifically applied to plaintiffs who knew or should have known of a product's hazards, and it acts as an exception to manufacturers' general duty to warn consumers. That is, manufacturers generally have a duty to warn consumers about any dangers inherent in their products that the consumers would not know about, so that the consumers can either decide not to use the product or use it in ways that would avoid the stated dangers. The sophisticated user defense is an exception to this general rule, as users sufficiently familiar with the product already know or should know about the dangers that would be announced in any warning. Because these sophisticated users are charged with knowing the particular product's dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause.

The trial court granted summary judgment on the basis of the doctrine, and the court of appeals affirmed. The state Supreme Court noted that the doctrine in most jurisdictions is treated as an affirmative defense to negate the manufacturer’s duty to warn, under the theory that sophisticated users need not be warned about dangers on which they are already aware or should be aware. Because the user is presumed to know the risk, the failure to warn of the danger cannot be the legal cause of the harm. The Court noted that the doctrine is a natural extension of the notion that there is no duty to warn of known risks or obvious dangers. For those individuals or members of professions who do or should know about the product’s potential dangers, those risks should be obvious. 74 Cal.Rptr.3d at 114-115.

In discussing the policy issues raised by the doctrine, the Court noted that “Not all warnings . . . promote user safety. Requiring manufacturers to warn their products' users in all instances would place an onerous burden on them and would invite mass consumer disregard and ultimate contempt for the warning process.” 74 Cal.Rptr.3d at 119. The doctrine thus helps ensure that warnings will be heeded.

Clarification of the Doctrine

The opinion offers clarity on a number of features of the doctrine, which would apply “equally to strict liability and negligent failure to warn cases.”

  • First, Johnson makes clear that the test is an objective one that depends not on what the plaintiff subjectively knew about the risks, but rather what is generally known or should have been known to the relevant class of sophisticated users. It is virtually impossible for a manufacturer to predict – and of course warnings are by their very nature based on predictions about users – whether any given member of a trained and sophisticated group has actual knowledge of the dangers. A manufacturer’s liability does not depend on the potentially “infinite number of user idiosyncrasies” that may result in a particular user being unaware of the risk, such as users who “may have misread their training manuals, failed to study the information in those manuals, or simply forgotten what they were taught.” 74 Cal.Rptr.3d at 120. However, if individuals hold themselves out as having training or having professional knowledge and skill associated with that class of users, that they might not actually possess all that knowledge and skill does not give rise to liability on the part of the manufacturer.


  • Second, the Court found that user sophistication is measured from the time of the plaintiff’s injury, rather than from the date the product was manufactured or sold. This is consistent with the rule’s focus on the knowledge of the general population of sophisticated users rather than that of the manufacturer, and “conforms to the defense’s purpose to eliminate any duty to warn when the expected user population is generally aware of the risk at issue.” 74 Cal.Rptr.3d at 122.

    Although the case involved a trained, sophisticated plaintiff, the Court discussed with approval two cases which applied the doctrine to a context in which the manufacturer warned a sophisticated intermediary, which then sold the product to the plaintiff end user. In Fierro v. International Harvester Co., (1982) 127 Cal.App.3d 862, the plaintiff sued the defendant because it manufactured the truck her husband was driving when he crashed and died. The plaintiff’s husband was driving the truck in the course and scope of his employment when the truck overturned after blowing a tire, crashed, skidded for a distance, spilled fuel, and caught fire. The plaintiff alleged that the defendant had a duty to warn not her husband, but the purchaser (his employer), that attaching power cables from the refrigerator unit to the truck’s battery could create a fire hazard. The court found that the defendant was not liable for failing to warn the employer, explaining in dicta that the employer was a “sophisticated organization” that “does not have to be told” of the risks. Similarly, In re Related Asbestos Cases, 543 F.Supp. 1142 (N.D.Cal. 1982), applied the so-called “sophisticated intermediary” doctrine to the US Navy, which was a sophisticated user of asbestos products, and which then distributed them to employees for use.

    Finally, the opinion reserved for future decision the issue of whether a plaintiff will be able to negate the application of the sophisticated user defense by showing that the sophisticated user’s misuse of the product was foreseeable.

    The Product Liability Advisory Council Inc.’s amicus brief was quoted in the opinion. PLAC does great work on these important appeals.