For your delectation and delight, desultory dicta on the law of delicts.

Tort Law’s Sleight of Hand – Part 4

August 8th, 2020

Beshada’s refusal to consider the industrial context of asbestos claims, with the usual involvement of sophisticated employers charged with providing a complex safety program for its workers, became the judicial norm in many decisions in state and federal courts. Ostensibly this alleged inequality of knowledge about latent hazards would justify limiting the application of the sophisticated intermediary doctrine. Many courts accepted the claim, often without evidence, that the dissemination of knowledge of asbestos hazards was different from the pervasive understanding of silica, cobalt, beryllium, benzene, and other hazards.

Low-level, or short and intense exposures to one kind of asbestos, crocidolite, is associated with mesothelioma, but many manufacturers did not use crocidolite in their products and the knowledge about this danger of crocidolite emerged in a very dramatic and public way such that there was not likely to be any “secret” knowledge held back by the product manufacturers. The scientific evidence of the carcinogenicity of other fibers emerged at different times, and with respect to mesothelioma, there is clearly a dramatic difference in hazardous potentials between and among the different mineral fibers that make up the commercial category of asbestos. Clearly some courts have been impressed by the special hazards of “asbestos,” from even fleeting or nominal exposures, without distinguishing mineral fiber types.

In 1985, the Fourth Circuit, applying Virginia law, refused to apply the learning of Section 388 to an asbestos case arising out of employment by the Newport News Shipbuilding and Drydock Company. Without citing any evidence, the court explained that the defense was unavailable because the hazard was “very great,” the burden to warn was “not great,” and the employer was unaware of asbestos hazards during plaintiffs’ employment before 1964.[1] The employer at issue was a huge industrial concern, with an extensive industrial hygiene department. Furthermore, the shipyard was building ships for the United States Navy, under Navy supervision of almost a century when these cases were filed.

In 1990, the Fourth Circuit held in Willis v. Raymark Industies, that its previous 1985 decision was binding, even though the Willis case involved employees of E.I. du Pont & Nemours Company, a different employer from the court’s previous case.[2] The legal irony was thick. A year earlier, in 1989, the New Jersey Supreme Court affirmed a judgment against du Pont in a case brought by employees who established at trial that their employer had intentionally harmed them with respect to their use of asbestos.[3] One of the plaintiffs’ key “state of the art” witnesses throughout the 1980s and 1990s was Gerrit W. H. Schepers, who was the directory of the pathology laboratory at du Pont in the 1950s, and went on to work for the United States government in the 1960s and 1970s. As a testifying expert witness for plaintiffs, Schepers attempted to establish knowledge of asbestos hazards throughout the 1940s and afterwards.

Asbestos manufacturing defendants fared slightly better in front of Judge Jack Weinstein, after New York modified its statute of limitations to include a discovery rule for latent diseases arising from asbestos exposure. The defendants moved to dismiss the claims under the sophisticated intermediary doctrine.[4] In its analysis, citing New York and general case law support, the Judge Weinstein acknowledged the general availability of the doctrine, noting that:

“In certain circumstances, if the chain of distribution is such that the duty to warn ultimate users logically falls upon an intermediary in the chain, instead of the manufacturer, the “sophisticated intermediary” doctrine may completely protect a manufacturer from liability under a theory of negligence.”[5]

Judge Weinstein stopped short, however, of recognizing the sophisticated intermediary defense as dispositive in asbestos cases because, “the latent quality of the defect in asbestos products makes the issue of sophisticated intermediary and intervening negligence questions of fact for the jury to decide.”[6]

The rationale did not, however, explain very much, given that virtually all the sophisticated intermediary cases involved a latent defect. Judge Weinstein gave virtually no consideration to the extensive knowledge the United States government had about asbestos hazards in its shipyards, at all times that were material to the cases before him.

Knowledge of hazards of any product may change over time, as can the regulatory context for the use of the product. In 1970, the Occupational and Safety Health Act (OSHA)[7] went into effect, and essentially federalized employers’ obligations to provide comprehensive safety programs. The federal government gained increased authority to establish and enforce safety and health standards for virtually all workers in the United Sates. Previously, only companies with federal contracts were subject to regulations and inspections under the Walsh-Healy Act.

In 1971, President Nixon signed an Executive Order that acknowledged that the federal government, as the country’s largest employer:

“has a special obligation to set an example for safe and healthful employment. It is appropriate that the Federal Government strengthen its efforts to assure safe and healthful working conditions for its own employees.”[8]

The Order went on to make OSHA regulations applicable to federal places of employment.

After the passage of OSHA, employers in both the private and public sectors could no longer legitimately claim ignorance of their obligations to provide a comprehensive safety program that included engineering and administrative controls over respirable dusts and fumes. Detailed regulations concerning respirators, when and how they should be selected, used, fitted, cleaned, and replaced became national law.

The passage of OSHA affected courts’ willingness to extend Section 388 to asbestos personal injury cases. In some cases involving exposures after the creation of federal OSHA, courts have upheld the applicability of the sophisticated intermediary as a complete legal defense. For example, in Triplett v. Minnesota Mining & Manufacturing Company, the court, applying Indiana law, granted summary judgment to a respirator manufacturer, on basis of the sophisticated intermediary defense, in a post-OSHA asbestos lung cancer case.[9] Similarly, in Bean v. Asbestos Corporation Limited, a Virginia trial court upheld the defense for asbestos sales after 1970.[10] The courts in Triplett and Bean emphasized the equality of knowledge of asbestos hazards among suppliers and employers. In essence, the courts were taking judicial notice, based upon OSHA, that employers were knowledgeable and sophisticated about the relevant hazards.

In the early days of the asbestos litigation,[11] defendants made several attempts to implead the government, or to sue for indemnification after settling. With some few exceptions, these efforts were largely unsuccessful.[12]  There is, however, a huge corpus of primary historical documents that evidences the Navy’s extensive and sophisticated knowledge and expertise in the hazards of asbestos exposure.  In 1842, Congress enacted legislation that included the creation of the Navy Bureau of Medicine and Surgery (BUMED). Congressional legislation in 1871 gave the chief of BUMED the title of Surgeon General, with the rank of commodore. In addition to BUMED, the Navy would develop several operational divisions, including Naval Operations, Office of Naval Research, Office of Industrial Relations, Bureau of Naval Personnel, and Bureau of Ships, with overlapping responsibilities for health and safety. The Navy regarded asbestos insulation and fireproofing as essential to its military goals, and these multiple divisions all addressed safe use of asbestos materials.

Since at least 1922, the Navy kept informed of occupational hazards, including asbestos, through its own research, and through input from the Public Health Service and from other published research.[13] As war production of naval vessels ramped up in 1940, the Navy took an extensive interest in asbestos safety, both for Naval shipyards, as well as for private commercial shipyards that were constructing naval vessels.[14] The Navy published various journals and magazines to disseminate information to its medical and safety officers. Some of the relevant publications were Safety Review, starting in 1944, United States Navy Medicine, The Naval Medical Bulletin, and United States Navy Medical News Letter.

In the post-war era, the Navy remained intensely interested in the developing scientific record of asbestos hazards. Just as an example of the Navy’s continued monitoring of occupational health and safety developments from the academic, industrial, and labor communities, the reader may wish to look at the published Proceedings of the Third Annual Navy Industrial Health Conference (April 1951). This publication included an attendance list several pages long, showing naval officers from Naval Operations, Office of Naval Research, Office of Industrial Relations, Bureau of Ordinance, Bureau of Naval Personnel, and Bureau of Ships. The chief industrial hygienist from each Naval Shipyard was in attendance. The Navy’s conference was held concurrently with conferences of the Industrial Medical Association, and the American Conference of Industrial Hygiene Association. Over 100 medical officers, medical service corps industrial health officers, civilian industrial hygienists and nurses, from over 80 Navy stations and shipyards attended. Here is how the Proceedings described the Navy’s efforts:

“Industrial health is not new in the Navy. An occupational health service, similar to those in effect at great corporations as General Motors, Du Pont, Westinghouse and many others, has been functioning since 1941. * * *

The Navy has been in the forefront, along with other government agencies and great private corporations in developing an effective occupational health program. This period of defense mobilization finds the Navy among the leaders in the field or industrial medicine and industrial hygiene.”

The Navy was well aware of the increasing evidence of associations between asbestos exposures and some cancer outcomes.  Not that the Navy needed any warnings, in 1968, Irving Selikoff, of Mt. Sinai Medical Center, made a splashy media story about his having “warned” the Navy and other branches of the government about asbestos cancer hazards.[15]

For those who do have years to commit to reviewing the primary historical evidence, there is a substantial historical literature of secondary evidence that summarizes the key historical evidence.[16] The massive weight of the primary and secondary evidence makes incontrovertible the conclusion that the United States had equal or greater knowledge of the hazards of asbestos at all relevant times, and that the government was in a vastly superior position to control asbestos exposures, outfit employees and servicemen with personal protective devices, and to communicate risk information.

The tort law significance of the Navy knowledge is great. Historically, a large percentage of asbestos personal injury claims have been filed by Navy sailors and civilian shipyard workers at Navy and private contract shipyards, where they worked on naval vessels that incorporated asbestos-containing insulation products.

In some states, employer knowledge was inadmissible in strict liability cases, and plaintiffs’ counsel would withdraw their negligence claims when they saw that defense counsel were prepared to implicate the government and its extensive knowledge. Even in so-called strict liability cases, the intermediary’s knowledge had important potential in defending against punitive damage claims, which were often still in the case. And in some states, employer knowledge remained a defense in products liability trials, even when summary judgments were not given.[17]

In the Philadelphia County, Pennsylvania, asbestos litigation, plaintiffs’ counsel soon learned that reverse-bifurcation fit their litigation model perfectly: quick, inexpensive trials without the bother of countering liability defenses. When defendants occasionally found a judge who would permit all-issue trials, and they presented “state-of-the-art” or sophisticated intermediary defenses, they often surprised themselves as well as plaintiffs’ counsel and judges with their success.[18]

[1]  Oman v. Johns-Manville Corp., 764 F.2d 224, 233 & n.5 (4th Cir. 1985), cert. denied sub nom. Oman v. H.K. Porter, 474 U.S. 970 (1985). In 1985, the Fourth Circuit decided Beale v. Hardy, 469 F.2d 213 (4th Cir. 1985), which held that Section 388 was a complete defense in silicosis cases under Virginia law, in the absence of any warnings.

[2]  Willis v. Raymark Indus., Inc., 905 F.2d 793, 797 (4th Cir. 1990) (disallowing sophisticated intermediary defense based upon unsupportable factual predicate).

[3]  Millison v. EI Du Pont De Nemours & Co., 115 N.J. 252, 558 A.2d 461 (1989).

[4]  In re Joint Eastern & Southern District Asbestos Litig., 827 F. Supp. 1014 (S.D.N.Y. 1993).

[5]  827 F. Supp. at 1055 (citing both the Goodbar case and Restatement (Second) § 388).

[6]  Id. at 1055 (citations omitted).

[7]  84 Stat. 1590 (1970)

[8]  Executive Order 11612—Occupational Safety and Health Programs for Federal Employees (July 26, 1971), available at, last visited Aug. 7, 2020.

[9]  422 F. Supp. 2d 779 (W.D. Ky. 2006).

[10]  1998 WL 972122 (Va. Cir. Ct. 1998).

[11]  Dube v. Pittsburgh Corning Corp., 870 F.2d 790, 796-800 (1st Cir.1989) (holding that the government’s failure to warn of asbestos exposure hazards was not protected by discretionary function exception to the Federal Tort Claims Act, when Government never made affirmative decision whether to warn).

[12]  See generally Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992) (describing multiple attempts to obtain contribution or indemnification); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988).

[13]  See Louis Israel Dublin & Philip Leiboff, “Occupation Hazards and Diagnostic Signs: A Guide to Impairments to Be Looked for in Hazardous Occupations”; U.S. Bureau of Labor Statistics Bull. No. 306 (1922), republished as “Notes on Preventive Medicine for Medical Officers, United States Navy; Instructions to Medical Officers,” in 17 Division of Preventive Medicine 883, 898 (1922) (describing signs and symptoms of pneumoconiosis caused by chronic occupational asbestos exposure). Of course, the Navy was bound by the knowledge of the public health agencies as a matter of law. See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, the Army Chemical Corps Chemical Warfare Laboratories, the President’s Science Advisory Committee, the National Academy of Sciences, the Office of the Army Surgeon General, the Navy’s Bureau of Medicine and Surgery, and the Advanced Research Project Agency of the Department of Defense is the knowledge of the military.”)

[14]  Ernest M. Brown, “Industrial hygiene and the Navy in national defense,” 1 War Medicine 3 (1940) (listing over a dozen occupational hazards in United States Naval shipyards, including asbestosis among workers who made pipe-insulation covering).

[15]  Thomas O. Toole, “U.S. Warned of Asbestos Peril,” Wash. Post A4, col. 1 (Dec. 4, 1968) (describing Dr. Selikoff’s warnings to the Navy and other branches of the U.S. government about the malignant and non-malignant risks of asbestos exposure).

[16]  Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011) (detailing historical documentation of the Navy’s knowledge of asbestos hazards in its shipyards); Denis H. Rushworth, “The Navy and Asbestos Thermal Insulation,” Naval Engineers J. 35 (Spring 2005); Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988) (providing a history of Navy knowledge through World War II); Jacqueline Karnell Corn & Jennifer Starr, “Historical perspective on asbestos: Policies and protective measures in World War II shipbuilding,” 11 Am. J. Indus. Med. 359 (1987); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy  99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards). See also Rachel Maines, Asbestos and Fire: Technological Tradeoffs and the Body at Risk (2005).

[17]  See, e.g., In re Related Asbestos Cases, 543 F.Supp. 1142 (N.D. Calif. 1982) (permitting defendants to assert that Navy was sophisticated user as an affirmative defense at trial).

[18]  See, e.g., O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619 (trial before Hon. Levan Gordon, and a jury; May 1989) (defense verdict in case in which plaintiffs presented negligence claims and defendants presented extensive evidence of the Navy’s superior knowledge of asbestos hazards and control of workplace).

Tort Law’s Sleight of Hand – Part 3

August 3rd, 2020

The suppression of the industrial nature of most asbestos personal injury cases was on full display in the New Jersey’s controversial decision in Beshada v. Johns-Mansville Products Corporation.[1] Without a record of what was known or knowable, the New Jersey Supreme Court held that defendants that sold asbestos-containing products without warning of the products’ latent hazards would be liable even when the hazards were “undiscoverable” at the time of marketing.[2] This holding was based upon a trial court record devoid of the state-of-art defense. The legal issue was created on the basis of plaintiffs’ motion to strike “state of the art” as a defense, even though plaintiffs had served expert witness reports that addressed state of the art, and despite the obvious relevance of such proofs to plaintiffs’ claims of negligence and punitive damages.[3]

The Beshada Court created hyperstrict liability by holding that knowledge of an asbestos-containing product’s hazards was irrebutably imputed to the manufacturer. The Court never dealt with the epistemiologic problems raised by its holdings (such as shifting scientific paradigms of justified belief from case series and animal studies to observational epidemiologic studies, the emergence of knowledge about smoking and lung cancer at the same time the asbestos epidemiology was being done,[4] and potential Gettier problems[5]).

The Court attempted to justify its regime of hyperstrict liability by adverting to the goals of spreading costs, avoiding injury, and simplifying factfinding.[6] As with most decisions of the era, the Court believed that the cost of injuries should not be borne by “innocent victims,” but there was no record evidence of innocence or of culpable conduct. More important, the Beshada Court never asked whether the industrial purchasers benefitted more economically from the use of asbestos-containing products, or whether the industrial purchasers were better positioned to protect the workers not only through warnings but through a comprehensive safety program that involved teaching, training, industrial hygiene measurements, engineering controls in the form of ventilation, and the selection, fitting, and maintenance of appropriate personal protective equipment such as respirators.

Of the 59 plaintiffs before the court in Beshada, 57 experienced their asbestos exposure in the course of employment for three large, sophisticated companies with substantial industrial hygiene technical capabilities: Jersey Central Power and Light Company, Hercules, Inc., and Research Cottrell, Inc.[7] One of these employers was a highly regulated utility, and all three were subject to state, and later federal, regulation of workplace asbestos exposure.

The Beshada decision thus ignored the reality that the employers were in the best position to avoid the harms claimed. The court also ignored the availability of employment benefits, such as life, accident, health, and disability insurance, and the availability of workers’ compensation as a method of loss spreading for injuries and occupational diseases that arose in the course of employment. The creation of hyperstrict liability for the state policy goals also undermined sensible safety incentives for the employers, which received the benefit of liens and subrogation rights against any recovery by the employees against remote industrial suppliers.[8]

The basic error was that the court sought to squeeze a complicated three-party industrial controversy into the overly simplified, and simply wrong two-party consumer model.[9]

Beshada was quickly branded as an example of excessive judicial activism.[10] It created a perverse incentive to give vague, overly broad warnings that ultimately would be unhelpful if not hurtful to workers, while trampling on the right to litigate issues. The two law professors whose work was relied upon in Beshada both criticized the illogic of the decision.[11] Within two years after deciding Beshada, the New Jersey Supreme Court retreated from its formulation of hyper-strict liability in a pharmaceutical products liability case involving an alleged injury from the use of tetracycline antibiotic.[12] Beshada was limited to its facts; in other words, it was a derelict on the brackish jurisprudential waters of New Jersey.

The disparate treatment between asbestos-containing and pharmaceutical products led to a constitutional challenge, which was rejected by a divided en banc federal district court, and then a panel of the Third Circuit.[13] During the pendency of the appeal from the en banc court, the district court entered a stay of all trials based upon Beshada’s hyperstrict liability rule. During this stay period, one very capable plaintiff’s lawyer, waived Beshada and proceeded to trial in a case before the Hon. Stanley Brotman, on a theory of general negligence for failing to warn. The jury returned a defense verdict on liability, which implied that it had found that plaintiff had failed to show a warning was reasonably required given what was known at the time of manufacture.

Another empirical test of Beshada’s fairness occurred in a state court case tried before the Hon. Thomas Mannion, in Middlesex County, New Jersey. The largest plaintiffs’ firm in New Jersey of the time wanted to pursue punitive damages against a particular asbestos product manufacturer. The manufacturer objected to Beshada’s hyperstrict liability in a case in which the plaintiff was already committed to presenting state-of-the-art evidence and detailed historical proofs. In order to obviate the defense objection, the plaintiff waived Beshada and proceeded to trial on negligence and punitive damages. The jury returned a defense verdict on liability.

[1]  90 N.J. 191, 447 A.2d 539 (1982).

[2]  90 N.J. at 196, 447 A.2d at 541.

[3]  Andrew T. Berry, “Beshada v. Johns-Manville Products Corp.: Revolution or Aberration in Products Liability Law,” 52 Fordham L. Rev. 786, 792 n.44 (1984) [cited below as Berry], citing Transcript of Motion to Strike State of the Art Defense at 51, Beshada v. Johns-Manville Prods. Corp., No. L-12930-79 (N.J. Super. Ct. Law Div. Oct. 9, 1981). Despite the lack of record evidence, the Beshada court was doubtlessly influenced by the lopsided historical narrative and the harsh characterization of warnings or lack of thereof in Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1104 (5th Cir. 1973) (referring to warnings first introduced on products in 1964, as “black humor,” even though the warnings were the same or similar to warnings mandated by OSHA in the early 1970s), cert. denied, 419 U.S. 869 (1974).

[4]  Collin Talley, Howard I. Kushner, and Claire E. Sterk, “Lung Cancer, Chronic Disease Epidemiology, and Medicine, 1948-1964,” 59 J. History Med. & Allied Sciences 329 (2004).

[5]  See Edmund L. Gettier, “Is Justified True Belief Knowledge?” 23 Analysis 121 (1963).

[6]  Beshada, 90 N.J. at 205-07, 447 A.2d at 547-48.

[7]  Beshada at 197-98, 447 A.2d at 543.

[8]  N.J. Stat. Ann. § 34:15-40 (1959).

[9]  See Berry at 794-95.

[10]  See, e.g., John W. Wade, “On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing,” 58 N.Y.U. L. Rev. 734, 758-59 (1983); Sheila L. Birnbaum & Barbara Wrubel, “State of the Art and Strict Products Liability,” 21 Tort & Insur. L. J. 30, 33 (1985) (“In the context of a failure to warn case, it is clear that a product cannot be made safer by the addition of a warning if science and technology do not suggest to the manufacturer that there is any hazard or risk to warn about.”); C. Eric Funston, “The ‘Failure to Warn’ Defect in Strict Products Liability: A Paradigmatic Approach to ‘State of the Art’ Evidence and ‘Scientific Knowability’,” Ins. Couns. J. 39, 49 (1984) (observing that Beshada “blundered from their own jurisprudential quagmire into [the] swamp [of epistemology]”); Comment, “Requiring Omniscience: The Duty to Warn of Scientifically Undiscoverable Product Defects,” 71 Geo. L.J. 1635, 1653 (1983) (“broad generalities with little or no factual support”); Note, “Products Liability-Strict Liability in Tort-State-of-the-Art Defense Inapplicable in Design Defect Cases – Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 447 A.2d 539 (1982),” 13 Seton Hall L. Rev. 625, 635 (1983) (“logically unsound”). The plaintiffs counsel of course declared Beshada a brilliant innovation. See Placitella & Darnell, “Beshada v. Johns-Manville Products Corp.: Evolution or Revolution in Strict Products Liability?” 51 Fordham L. Rev. 801 (1983).

[11]  John W. Wade, “On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing,” 58 N.Y.U. L. Rev. 734, 758-59 (1983); see David Owen, “Bending Nature, Bending Law,” 62 Florida L. Rev. 570, 596 (2010) (discussing both Wade and Keaton’s criticisms).

[12]  Feldman v. Lederle Laboratories, 97 N.J. 429, 479 A.2d 374 (1984).

[13]  In re Asbestos Litigation, 628 F.Supp. 774 (D.N.J.1986) (eight to six), aff’d sub nom. Danfield v. Johns-Manville Sales Corp., 829 F.2d 1233 (3d Cir. 1987).

Tort Law’s Sleight of Hand – Part 2

August 2nd, 2020

There was sadly no dearth of cases of asbestosis or silicosis before the publication of the Restatement (Second) of Torts. Before 1965, legal doctrine and state and federal regulatory regimes saw the occupational lung disease problem as one of employers’ management of the workplace, and employer and employee compliance with regulations.[1]

Before the Restatement (Second) of Torts in 1965, cases against remote industrial suppliers were quite uncommon. In the first few decades of the 20th century, workers could still sue their employers in tort, and remote suppliers had a robust defense based upon reliance on the purchaser-employers’ obligation to provide a safe workplace. Even after the widespread adoption of worker compensation laws, the common law acknowledged that many “[c]hattels are often supplied for the use of others,” and provided an exception to liability rules based upon the facts and circumstances of the product, its use, the known hazards of its use, and the character of buyer.[2]

By the time of the Restatement (Second), most workplace accidents and injuries, including the development of occupationally related chronic diseases were covered by workers’ compensation statutes, which effectively barred lawsuits directly against employers.[3] Perversely, these statutes also granted employers liens against tort recoveries from remote suppliers, with the consequence of diluting the costs to the employer for failing to prevent injuries and disease the employer was uniquely positioned to avoid.

Section 402A certainly opened the way for applying products liability law to protect the employees of purchasers. Nonetheless, Section 388 of the First Restatement was carried forward to the Second, and arguably qualified the application of 402A, by providing a sophisticated intermediary sophisticated intermediary defense. This defense acknowledged the impossible burden placed upon a product supplier to warn every possible user of its product, especially in the industrial context where purchaser/employers maintain and control the safety of their workplace. Section 388 observed that responsibility for warning employees in many cases must be carried out by purchasers/employers of the product, who are in the best position to warn users/employees.

The language of Section 388 provides important limitations on the scope of Section 402A, from the same Restatement:

Section 388. Chattel Known to Be Dangerous for Intended Use

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Comment n to Section 388 observed that

“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.”[4]

The tension between Sections 388 and 402A did not escape the attention of the Judge John Minor Wisdom, in the landmark asbestos case, Borel v. Fibreboard Paper Products Corporation.[5] The plaintiff had characterized the case as a consumer case, with the duty to warn him as the ultimate user. The defendants had argued that the danger was obvious and that some of them had issued “cautions,” which were on shipping cartons. Judge Wisdom, in writing for the court, inferred that such cautions were aimed only at contractor-purchasers, and not the ultimate users who were owed a warning under the law:

“We agree with the Restatement: a seller may be liable to the ultimate consumer or user for failure to give adequate warnings. The seller’s warning must be reasonably calculated to reach such persons, and the presence of an intermediate party will not by itself relieve the seller of this duty.”[6]

Judge Wisdom might have just as easily agreed with Restatement 388, especially considering that plaintiff Clarence Borel and his fellow insulators were well aware of the asbestosis hazard from excessive exposure in insulation work since 1930,[7] despite Borel’s equivocal trial testimony.[8] Of course, between 1930 and 1973, when Judge Wisdom wrote, the scientific, industrial, and regulatory community had become aware of a cancer risk from asbestos exposure. Still, the courts might have been mindful that there were several different types of asbestos, and there were a multiplicity of expert opinions about the carcinogenic potential of chrysotile as opposed to amphibole asbestos fibers. Indeed, one expert in the employ of the United States government, who would go on to become a major testifying expert witness for plaintiffs in asbestos litigation, opined in a 1973 publication, that mesothelioma was a problem limited to exposure to South African crocidolite, which was not in every asbestos-containing insulation product.[9]

In any event, Judge Wisdom never directly addressed Section 388, and the framing of the Borel case as a consumer case prevailed. There was nothing inevitable about the rejection of Section 388, in the context of asbestos personal injury actions. Many other so-called toxic torts have been legally detoxified by Section 388.[10]

[1]  See, e.g., New York “Industrial Code Rule No. 12 – Control of Air Contaminants” (1956) (governing “all processes and operations releasing or disseminating air contaminants in any workroom or work space,”  and defining the employer’s duties to protect workers, regardless of the industry sector or manufacturing process), based upon New York Labor Law § 200 (enacted 1921). See also James D. Hackett, “Silicosis,” N.Y. Dep’t Labor & Industry Bull. 11 (Dec. 1932); Frieda S. Miller, Industrial Commissioner, “Detection and Control of Silicosis and Other Occupational Diseases” (1940); Adelaide Ross Smith, “Silicosis and Its Prevention, Special Bulletin No. 198” (1946).

[2]  Restatement (First) of Torts § 388, & cmt. 1 (1934) .

[3]  Many state statutes withheld immunity from employers for intentional torts. See, e.g., Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A. 2d 505 (1985). Some state statutes limited the coverage for workers’ compensation to diseases that manifested within a certain time window during and after employment. Such limitations logically implied that employers had no immunity to claims that arose outside the time window. Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.2d 851, 864-65 (2013); see Ellen Relkin, “The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century,” 69 Rutgers Univ. L. Rev. 881, 881-83 (2017) (discussing Tooey and the perceived inadequacies of worker compensation statutes).

[4]  Restatement (Second) of Torts § 388 & cmt. n (1965).  In 1998, the ALI promulgated a restatement of products liability law, which carried forward the principles of Section 388. See Restatement (Third) of Torts: Products Liability § 2, and comment I (1998).

[5]  493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974).

[6]  Id. at 1105.

[7]  “The Pulmonary Asbestosis Menance,” 9 The Asbestos Worker 9 (Sept. 1930) (warning about the dangers of asbestosis from occupational asbestos exposures, in the official monthly journal of the International Association of Heat and Frost Insulation and Asbestos Workes).

[8]  See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d at 1082.

[9]  Gerrit W. H. Schepers, “The Biological Action of Talc and Other Silicate Minerals,” in Goodwin, Proceedings on the Symposium on Talc; U.S. Dep’t Interior Information Circular 8639 (1973).

[10]  Section 388 has been a dispositive legal defense in most silicosis cases. See, e.g., Smith v. Walter C. Best, Inc., 927 F.2d 736, 739-40 (3d Cir. 1990) (Ohio law); Goodbar v. Whitehead Brothers, 591 F. Supp. 552, 561 (W.D. Va. 1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985) (Virginia law); Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003) (Iowa law); Haase v. Badger Mining Corp., 266 Wis. 2d 970 (Wis. Ct. App. 2003), aff’d, 274 Wis. 2d 143 (2004); Cowart v. Avondale Indus., 792 So. 2d 73 (La. Ct. App. 2001); Bates v. E.D. Bullard Co., 76 So. 3d 111 (La. App. 2011); Phillips v. A.P. Green Refractories Co., 428 Pa. Super. 167, 630 A.2d 874 (1993), aff’d on other grounds sub nom., Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995); Conley v. Air Liquide America Corp., Cuyahoga Cty. C.P. Case No. 516427 (July 15, 2008); Woodard v. Air Liquide, Cuyahoga Cty. C.P. Pleas No. CV-469127, Entry & Opinion No. 6405397 (Aug. 3, 2005); Pawlowski v. Air Liquide, Cuyahoga Cty. C.P. Case No. 499457 (Aug. 2, 2006); Huddleston v. Air Liquide, Cuyahoga Cty. C.P. Case Nos. 506488 and 510330 (Oct. 30, 2007).

The defense has operated to provide a complete legal defense in a large variety of toxic substance exposure cases. See, e.g., Hoffman v. Houghton Chemical Corp., 434 Mass. 624, 751 N.E.2d 848 (2001) (acetone and other chemicals in 55-gallon drums); Parker v. Schmiede Machine & Tool Corp., 445 Fed. Appx. 231 (11th Cir. 2011) (beryllium); Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704, 718 (E.D. Tenn. 2001) (beryllium); Byrd v. Brush Wellman, Inc., 753 F. Supp. 1403 (E.D. Tenn. 1990) (beryllium); Davis v. Avondale Indus., 975 F.2d 169, 174 (5th Cir. 1992) (cadmium in welding rods); Coffey v. Chemical Specialties, Inc., 4 F.3d 984, 1993 WL 318886 (4th Cir. 1993) (chromated copper arsenate); Jodway v. Kennametal, Inc., 207 Mich. App. 622, 525 N.W.2d 883 (Mich. Ct. App. 1994) (cobalt dust); Kudzia v. Carboloy Division, General Electric Co., 190 Mich. App. 285, 475 N.W.2d 371 (1991) (same), aff’d, 439 Mich. 923, 479 N.W.2d 679 (1992); Tasca v. GTE Products Corp., 175 Mich. App. 617, 438 N.W.2d 625 (Mich. Ct. of App. 1989) (same); Kennedy v. Mobay Corp., 84 Md. App. 397 (1990) (toluene diisocyanate), aff’d, 325 Md. 385 (1992); Adams v. Union Carbide Corp., 737 F.2d 1453, 1455 (6th Cir.) (same), cert. denied, 469 U.S. 1062 (1984); O’Neal v. Celanese Corp., 10 F.3d 249, 254 (4th Cir. 1993) (lead fumes); Whitehead v. The Dycho Co., 775 S.W.2d 593, 597-98 (Tenn. 1989) (naphtha); Parkinson v. The California Co., 255 F.2d 265 (10th Cir. 1958) (natural gas); Strong v. E.I. Du Pont de Nemours Co., 667 F.2d 682, 687 (8th Cir. 1981) (natural gas); Dusoe v. Union Carbide Corp., 2005 WL 705960, at *6 (Sup. Ct. Mass. Jan. 20, 2005) (oxygen regulator involved in explosion of welding system); Marker v. Universal Oil Prods. Co., 250 F.2d 603, 607 (10th Cir. 1957) (Okla. law) (petroleum refining process); Taylor v. Monsanto Co., 150 F.3d 806 (7th Cir. 1998) (polychlorinated biphenyls); Fisher v. Monsanto Co., 863 F.Supp. 285 (W.D. Va. 1994) (same); Wilson v. Glenro, Inc., 2012 WL 1005007 (D. Vt. Mar. 23, 2012) (polytetrafluoroethylene), aff’d, 2013 WL 1876598 (2d Cir. May 7, 2013); Newson v. Monsanto Corp., 869 F. Supp. 1255 (E.D. Mich. 1994) (polyvinyl butyl); Roney v. Gencorp, 654 F. Supp. 2d 501 (S.D.W.Va. 2009) (polyvinyl chloride); Pike v. Trinity Indus., Inc., 34 F. Supp. 3d 1193, 1199-1202 (M.D. Fla. 2014) (guardrails); Ditto v. Monsanto Co., 867 F. Supp. 585 (N.D. Ohio 1993), aff’d, 36 F.3d 1097 (6th Cir. 1994); Adams v. Union Carbide Corp., 737 F.2d 1453, 1456-57 (6th Cir.), cert. denied, 469 U.S. 1062 (1984); Midwest Specialities, Inc. v. Crown Industrial Prods. Co., 940 F. Supp. 1160, 1166 (N.D. Ohio 1996).

Tort Law’s Sleight of Hand

August 1st, 2020

The last century’s landmark cases, which established products liability as it currently exists in the United States, involved consumer products.[1] The consumer products were sold to, or were designed to be used by, ordinary consumers, without any technical training or knowledge. The consumer products that gave rise to advent of products liability as we know it were not products that required technical supervision or were subject to regulatory oversight with the potential for governmental inspections to ascertain safe use.

Justice Roger Traynor’s classic concurrence in Escola v. Coca Cola Bottling Company provided the initial rationale for what became strict products liability. In addition to deterrence of marketing harmful products and the prevention of injury, Traymor observed that:

“public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot.”[2]

This difference in ability to know about and anticipate some hazards has become the doctrinal foundation for broad liability rules for consumer products. The complexity of products and the processes of their manufacture places consumers into a position of forced reliance upon manufacturers.[3]

Courts would later add a “deep pocket” explanation, a blatant appeal to a felt need to place liability with the party with greater financial resources. By marketing products and realizing at least a potential to profit from the marketing indicated the manufacturer as the appropriate source of compensation for the injured consumer.[4] More thoughtfully, some scholars sought to impose tort liability on the “cheapest cost avoider,” the party who could reduce the risks of accidents and their costs most efficiently and effectively.[5] In 1965, the march towards strict products liability reached a major success in the Restatement (Second) of Torts. Section 402A embraced the economic and moral rationales to support the application of strict liability to products sold “in a defective condition unreasonably dangerous to the user or consumer”.

The industrial customer is frequently very different from the consumer as imagined by the landmark tort cases that led up to the Restatement (Second) of Torts. Some of the key characteristics of the industrial customer that differentiate it from the so-called “ordinary” consumer include:

  1. The customer is at least as knowledgeable about the latent hazards as the seller.
  2. The customer typically has employees who will use the product.
  1. The customer is often more knowledgeable than the seller about the actual circumstances of the product’s use by the purchaser’s employees, and what preventive measures can be and have been taken;
  2. The customer is itself an industrial concern with economic resources, often greater than those of the seller.
  3. The customer is often in a better position to distribute the costs of injuries than the seller.
  4. The customer, qua employer, has common law, statutory, and regulatory duties to provide a safe workplace, often specifically with reference to the product at issue.
  5. The customer stands to profit from the use of the product, and the customer has the most to gain from ignoring known hazards in terms of speeding up its production.
  6. The customer, qua employer, is in the best position to, and often the only person who can, assess and determine the hazard, intervene to prevent the hazard, determine and implement the appropriate safety measures, and supervise its employees to ensure compliance with its safety measures (many of which are mandated by state or federal law).

As a generality, the facts and circumstances of the use of many industrial products are quite different from those in which consumer products are used. Historically, tort law has recognized the relevance of the differences in the form of the sophisticated intermediary, government contractor, bulk seller, component part, and bare metal defenses. In the context of industrial products, involving a manufacturer-seller, an industrial buyer, and an injured employee of the industrial buyer, none of the doctrinal rationales for strict liability work particularly well. The buyer may have greater financial resources and greater ability to spread the cost of injuries. Almost always, the buyer will have greater ability to avoid the risk by implementing known or knowable precautions that are required in any event by state and federal law. The buyer as employer will see deviations from safety rules and can correct them before injuries result. In the wake of the Restatement (Second) of Torts, however, many courts have fallen into the error of treating the industrial accident with the same rules and rationalia that were developed for consumer cases.

[1]  See, e.g., MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 145 N.Y. Supp. 462 (N.Y. 1916) (car); Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P.2d 436 (1944) (soft drink bottle); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960) (car); Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 377 P.2d 897 (Cal. 1963) (power tool designed for home use). Two of these decisions (MacPherson and Escola) are discussed in Robert L. Rabin, “Past as Prelude: The Legacy of Five Landmarks of Twentieth-Century Injury Law for the Future of Torts,” chap. 2, in M. Stuart Madden, Exploring Tort Law 52 (2005). Professor Rabin does not include any tort decisions that involved liability by remote suppliers to industrial workplaces.

[2]  Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P.2d 436, 440-41 (1944) (Traynor, J., concurring) (positing in addition to the majority’s decision based upon negligence that the bottle manufacturer should be “strictly liable” to consumers for a bottle defectively made).

[3]  Id. at 443. See RESTATEMENT (SECOND) OF TORTS § 402A (1965), cmt. c (“[T]he justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it . . . .”).

[4]  Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 377 P.2d 897, 901 (Cal. 1963) (“The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons . . . .”); Restatement (Second) of Torts §402A, cmt. c (1965) (“public policy demands that the burden of accidental injuries caused by products . . . be placed upon those who market them”).

[5]  Guido Calabresi & Jon T. Hirschoff, “Toward a Test for Strict Liability in Torts,” 81 Yale L.J. 1055 (1972).

The opinions, statements, and asseverations expressed on Tortini are my own, or those of invited guests, and these writings do not necessarily represent the views of clients, friends, or family, even when supported by good and sufficient reason.