Does the Sophisticated Intermediary Defense Apply in Toxic Tort Cases? - Part IV of IV

by Raphael Metzger, Esq.

Introduction

Among the defenses asserted by defendants in toxic tort cases is the so-called sophisticated intermediary defense. See, generally, Centola, G., “Manufacturers Often Are Able To Rely On The ‘Sophisticated Intermediary Doctrine to Defend Against Plaintiffs’ Failure-To-Warn Claims.”  Mealey’s Emerging Toxic Torts Vol. 7, No. 21, pp. 27-35 (February 5, 1999).

Five years ago one state supreme court observed that “judicially created doctrines such as the ‘sophisticated purchaser’ and ‘bulk supplier’ defenses have become familiar maxims of product liability law.”  Macias v. State of California (1995) 10 Cal.4th 844, 42 Cal.Rptr.2d 592.  While it is true that the “sophisticated intermediary” defense is often bandied about, the fact remains that it has not been accepted in most jurisdictions and that it has little, if any, application in toxic tort cases.

This is the last of a four-part series which explains why the defense should not apply in toxic tort cases.  The first part (in the April 21, 2000 Mealey’s Litigation Report: Emerging Toxic Torts) explained that the defense is contrary to statutory and regulatory law.  The second part (in the August 18, 2000 Mealey’s Litigation Report: Emerging Toxic Torts) explained that the defense, as asserted, is contrary to the Restatement of Torts.  The third part (in the December 1, 2000 Mealey’s Litigation Report: Emerging Toxic Torts) delineated the limited scope of the defense in those jurisdictions that have adopted it.  This last installment will explain why the defense should not succeed against a properly drafted complaint.

1.         Causes of Action in Toxic Tort Cases

Toxic torts give rise to various causes of action.  The typical claims asserted in toxic tort cases are negligence, strict liability based on defective warnings, strict liability based on defective design,  and breach of express and/or implied warranties.    However, other causes of action may also be pled in appropriate cases, such as fraudulent concealment, ultrahazardous activities, and battery.

The essence of the typical toxic tort case is that the manufacturer concealed the toxic hazards of its chemical product from the plaintiff, thereby causing the plaintiff's toxic injury.  Thus, the very nature of a toxic tort case suggests a fraudulent concealment claim.  Fraudulent concealment is rarely pled as a cause of action in toxic tort complaints, despite its unique suitability to such cases.  The rarity of the cause of action in toxic tort cases may be due to the widely held belief that the cause of action is only available when the defendant owes a fiduciary duty to the plaintiff.  This is a common misconception.  A fiduciary relationship is not a required element of the cause of action.  A fiduciary relationship is often pled in fraudulent concealment cases, because it readily establishes a duty on the part of the defendant to make disclosure.  However, a fiduciary duty is not the exclusive means by which a duty of disclosure may be established.  A duty of disclosure may also be established by federal regulations (such as the Hazard Communication Standard) and state statutes (such as California’s Safe Drinking Water and Toxic Enforcement Act - commonly known as Proposition 65).  Indeed, there are numerous federal and state laws which mandate some type of disclosure of toxic chemical hazards.  A duty of disclosure may also arise under common law.  Thus, a fraudulent concealment claim may successfully be alleged in most toxic tort cases.

The supply or distribution of certain chemicals may create such extreme toxic hazards that the exercise of due care may not eliminate the risk of harm to workers.  In such cases a claim for ultrahazardous activities may be viable.    The essence of a battery claim is an offensive touching, which is also the essence of a toxic exposure.  Therefore, when a chemical manufacturer knows that the ordinary use of its product will contact the body of users and result in a toxic injury, a battery claim may be viable as well.   These and other legal theories, which may be pled in toxic tort cases, may render a toxic tort complaint virtually immune to the sophisticated intermediary defense.

2.         Pleading Causes of Action to Avoid the Sophisticated Intermediary Defense

Counsel can plead that the defendant was negligent not just in failing to warn of the toxic hazards of its products, but also by negligently producing, refining, mixing, formulating, developing, researching, testing, inspecting, manufacturing, advertising, warranting, marketing, recommending, selling, distributing, and delivering its chemical products.   A cause of action alleging these negligent acts is not subject to the sophisticated intermediary defense, because the sophisticated intermediary defense properly applies only to warnings.

As previously discussed in the third part of this series of articles, several courts have refused to apply the sophisticated intermediary defense to strict liability claims, because “[t]he sophisticated [intermediary] defense . . . turns on the reasonableness of defendant’s conduct” and  “the defense does not exist under strict liability in tort principles because, in that context, a seller is duty-bound to warn all foreseeable users and the risk of an employer’s failure to warn employees is one of the risks imputed to the seller as a matter of law.”  Russo v. Abex Corp. (E.D. Mich. 1987) 670 F.Supp. 206, 207.

The sophisticated intermediary defense should not apply to an ultrahazardous activities claim, because such a claim is not fault-based and does not relate to warnings.  The defense likewise should not apply to fraudulent concealment claims, because fault-based defenses are inapplicable to claims which assert species of fraud.  See, e.g.  Carroll v. Gava (1979) 98 Cal.App.3d 892, 897.

The intent necessary to commit a civil battery is not an intent to cause harm, but rather an intent to do the act which causes the harm.  This was well explained by the court in Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318, 246 P.2d 111, 113:  “The general rule is that every person is presumed to intend the natural and probable consequences of his acts. . . .  In other words, if the defendant did an [] act which was likely to prove injurious to another, he is answerable for the consequence which directly and naturally resulted from the conduct, even though he did not intend to do the particular injury which followed.”  See, also, Singer v. Marx (2nd Dist., Div. 2, 1956) 144 Cal.App.2d  637, 641, 301 P.2d 442, 442; Weisbart v. Flohr (1968) 260 Cal.App.2d 281, 67 Cal.Rptr. 114.  Since battery is a form of strict liability and is not based on warnings, the sophisticated intermediary defense should not apply to such a cause of action.  See, e.g., Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335 [comparative fault defense does not apply to a battery cause of action].

Thus, pleading a variety of tort causes of action should help the plaintiff overcome a chemical manufacturer’s assertion of the sophisticated intermediary defense.

3.     Triable Issues Can Be Established Regarding the Defense on Warning Claims

“Whether a warning is adequate depends on several factors, among them ‘the normal expectations of the consumer as to how a product will perform, degrees of simplicity or complication in its operation or use, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury, and the feasibility and beneficial effect of including a warning.’"  Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 111, quoting Jackson v. Deft, Inc., 223 Cal.App.3d 1305, 1320.  “Whether the warning is adequate is usually a question of fact.”   Id.; see also, Billsborrow v. Dow Chemical, U.S.A. (1988) 139 Misc.2d 488, 527 N.Y.S.2d 352, 355.

The reasonableness of a defendant’s reliance on an intermediary to pass adequate warnings on to the ultimate user is also ordinarily a question for the trier of fact to resolve.  Carmichael v. Reitz, 17 Cal.App.3d at p. 989; Dougherty v. Hooker Chemical Corp., 540 F.2d at pp. 179, 182; Reibold v. Simon Aerials, Inc., 859 F.Supp. at 201; Shell Oil Co. v. Gutierrez (Ariz.App. 1978) 581 P.2d at 279; Kennedy v. Mobay, 579 A.2d at p. 1203, Eagle-Picher v. Balbos, 604 A.2d at p. 464; Rest.3d, Torts: Product Liability, § 2, com. I; Rest.2d, Torts, § 388, & com. n; see Note, Failures to Warn and the Sophisticated User Defense, 74 Va.L.Rev. at pp. 600-601.

Since both the adequacy of the warning and the reasonableness of a defendant’s reliance on an intermediary to pass the warning on to the ultimate user are ordinarily questions of fact for decision by a jury, even negligence and strict liability claims alleging inadequate warnings are generally not amenable to disposition on summary judgment. 

To focus courts on these issues and to require defendants to negate them on summary judgment, counsel would be well advised to specifically allege that the warnings given by the manufacturer would not satisfy the normal expectations of a worker as to how the product would perform, would not alert the worker to the nature and magnitude of the toxic hazards, and would not alert the worker to the likelihood of injury.  Counsel should also allege that an adequate warning is feasible and would have decreased the risk of the toxic injury.  Counsel should also allege that the information given was inadequate to inform the employer of the nature and extent of the hazard presented to the worker and failed to provide the employer sufficient information to protect the worker from the hazard.  Lastly, counsel should allege that the manufacturer acted unreasonably in relying on the employer to convey the manufacturer’s warnings to the worker, because the employer was “unsophisticated” and lacked adequate organizational communication programs that would enable the manufacturer to rely on the employer to effectively convey the warnings to the worker.

4.         Conclusion.

The first part of this series explained that the sophisticated intermediary defense is contrary to statutory and regulatory law, specifically the federal Hazard Communication Standard, state disclosure laws such as California’s Proposition 65, and the common law.  The second part of this series showed that the defense, as typically asserted, is contrary to the Restatement Second of Torts.  The third part of this series delineated the limited scope of the defense in those jurisdictions that have adopted it.  This last installment has shown that even disregarding the inapplicability of the defense to toxic injuries in the workplace, the defense should not succeed against a properly drafted complaint.

A well drafted complaint alleging toxic injuries to a worker should include causes of action that are not based on warnings and hence not subject to the sophisticated intermediary defense.  However, even claims alleging negligence or strict liability based on inadequate warnings are rarely subject to summary judgment based on the sophisticated intermediary defense, because of the normative nature of issues such as the adequacy of warnings given, the sophistication of the intermediary, and the reasonableness of the manufacturer in relying on the intermediary to convey the manufacturer’s warnings and safe use instructions to the worker.

Once the general inapplicability and limited scope of the sophisticated intermediary defense is appreciated and anticipated by counsel, the defense should be a mere nuisance rather than a death knell to occupational toxic injury cases.

This article was published in Mealey’s Emerging Toxic Torts on April 4, 2001, as the last of a series of four articles regarding the sophisticated intermediary defense in toxic tort litigation.