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.