TORTINI

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

Sophisticated Intermediary Defense in Asbestos Cases – Use With Discretion

May 20th, 2019

“Discretion is the better part of valor.” Shakespeare, King Henry the Fourth.

A recent asbestos case illustrates the perils of improvidently asserting a sophisticated intermediary defense, when the alleged injury is mesothelioma, and the years of exposure reach back to the 1940s. In Sawyer v. Union Carbide Corp., Foster Wheeler LLC, pleaded sophisticated intermediary and superseding cause defenses “pro forma,” in a mesothelioma case that involved asbestos exposure from 1948 through the 1970s.[1] Plaintiff moved for partial summary judgment on these two defenses, but rather than withdraw the defenses, Foster Wheeler attempted to present evidentiary support in the form of the employer’s (purchaser’s) knowledge of asbestos hazards. The employer was the Bethlehem Steel Company, at the Bethlehem Steel Sparrows Point Shipyard.

Foster Wheeler certainly was able to show that Bethlehem Steel was aware of the hazards of asbestosis, going back to 1948. If the plaintiff’s alleged injury had been asbestosis, the employer’s knowledge should have sufficed. The injury alleged, however, was mesothelioma. Evidence that the Maritime Commission had warned Bethlehem Steel about the hazards of asbestosis, and to maintain a threshold limit value of 5 million particles per cubic foot, was not particularly germane or helpful in avoiding mesothelioma among employees.

Moving forward two decades, Foster Wheeler was able to show that Bethlehem Steel’s Medical Director, Dr. Paul J. Whitaker, was well aware of the connection between asbestos exposure and mesothelioma, in 1968.[2] This evidence, however, left two decades of exposure, from 1948 to 1968, in which Foster Wheeler had not shown its purchaser was aware of the risk of mesothelioma.

The trial court in Sawyer, however, did not focus on the differential between an asbestosis and a mesothelioma hazard. Instead of noting the lack of knowledge with respect to mesothelioma, the trial court insisted that the supplier must have subjective awareness of the purchaser’s actual knowledge of the relevant hazards. Even the overwhelming evidence of Bethlehem’s awareness of asbestosis hazards throughout the plaintiff’s employment was thus, questionably, deemed irrelevant.

According the trial court, the sophisticated intermediary defense focuses on what “focuses on what the product manufacturer knew and the reasonableness of its reliance on the employer prior to and during the time the workers were exposed.”[3] The Sawyer court took this focus to require a showing that the defendant had actual awareness of the intermediary’s knowledge of the dangers of asbestos exposure. According to the decision, Foster Wheeler failed to establish a basis for having such actual knowledge of Bethlehem Steel’s knowledge.

The Sawyer court’s insistence upon actual awareness is not supported by its citation to the Restatement (Second) of Torts. The relevant provision for sales of products to be used by a third party states that[4]:

“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

  • 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
  • has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
  • fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

The Restatement’s articulated standard does not call for the seller’s subjective awareness as a necessary condition. Having a reason to believe the user will realize its dangerous condition seems eminently satisfied by a generalized, reasonable belief that purchasers are sophisticated with respect to the product’s use. Foster Wheeler might have improved its evidentiary showing in opposition to plaintiff’s motion, however, by adverting to its own knowledge that there was a prevalent regulatory scheme, including the Walsh-Healy Act, which covered the safety of workers in the use of asbestos. As noted above, this knowledge would not have implicated the hazard of mesothelioma or the means to avoid it in purchasers’ workplaces.

The Sawyer decision offered virtually no support for the proposition that the seller, wishing to avail itself of the sophisticated intermediary defense, must have actual knowledge of the buyer’s awareness of the relevant hazard. Failure to warn liability for a product’s harm is predicated upon negligence law. Almost all civilized jurisdictions require plaintiff to show negligence in such cases.[5] The test for non-obviousness such that a warning might be required under the law is an objective one, which does not turn on the user’s actual knowledge of the hazard.[6]

Although standing on the sophisticated intermediary defense may have been improvident in Sawyer, there are many cases that cry out for dismissal on the strength of the defense. The facts of silica cases, for example, are radically different from early exposure asbestos cases because of the wide diffusion and general equality of knowledge of silica hazards throughout industry, labor, and government.[7]  The dangers of occupational exposure to crystalline silica were so well known that the New York Court of Appeals recognized, seventy years ago, that “[i]t is a matter of common knowledge that it is injurious to the lungs and dangerous to health to work in silica dust.”[8] This pervasiveness of knowledge about the potential hazards of industrial silica exposure has been the basis for many dispositive rulings in silica cases, even when the sellers lacked subjective awareness of the buyer’s state of mind.[9]

Product liability is defined and bounded by the scope of an essential need for warnings in the face of imbalances in knowledge between seller and buyer. When the rationale is not or cannot be satisfied, ignoring the sophisticated intermediary’s knowledge is little more than creating a “duty to pay.” In the context of industrial sales of materials and products to large, sophisticated buyers, the law recognizes that warnings are often unnecessary and even counter-productive when hazards of the materials or products are known to the buyers as well as, if not better than, to the sellers. The so-called sophisticated intermediary defense thus reflects nothing more than the rational limits of liability in situations when the chattel is widely known to be hazardous, and the seller can reasonably rely upon the intermediary to be aware of the hazard and to protect down-stream users, typically employees of the purchaser.

Because of the shift in knowledge about the causal relationship between amphibole asbestos and mesothelioma, asbestos product cases would appear unlikely applications for sophisticated intermediary defenses, at least until the knowledge of mesothelioma hazards became widely prevalent. Because of the  change in the state of the art with respect to asbestos hazards, asbestos cases involve substantial factual and legal differences from other hazardous material cases. The singular facts of some of the asbestos cases include an extreme imbalance between supplier and some purchasers in their respective knowledge of asbestos hazards. Accordingly, jurisdictions that have embraced the sophisticated intermediary defense have thus treated asbestos cases, with pre-OSHA exposures, differently from other occupational exposure cases.[10]

The OSH Act of 1970, which created OSHA, was fueled in large part by wide-spread awareness and concern about asbestos exposure and occupational cancers, such as mesothelioma. In asbestos cases involving only post-1969 asbestos exposures, courts have upheld the applicability of the sophisticated intermediary defense. Thus a federal trial court in Kentucky, applying Indiana law, granted summary judgment to a respirator manufacturer, on the basis of the sophisticated intermediary defense, in a post-OSHA asbestos lung cancer case.[11] Similarly, a Virginia state trial court, notwithstanding the application of Virginia law in the Willis and Oman federal cases upheld the sophisticated intermediary defense as a complete legal defense for asbestos sales after 1970.[12] The decisions in these asbestos cases with only post-1970 asbestos exposure emphasized the equality of knowledge of asbestos hazards, which distinguished them from earlier asbestos cases involving companies such as Johns-Manville, which had been found to suppress or hide information from purchasers and workers.[13]


[1] Sawyer v. Union Carbide Corp., Civil No. CCB-16-118, 2019 U.S. Dist. LEXIS 72215 at *33; 2019 WL 1904882 (D. Md. April 29, 2019).

[2] Sawyer at *36.

[3] Sawyer at *36 (quoting Willis v. Raymark Indus., Inc., 905 F.2d 793, 797 (4th Cir. 1990)).

[4]  § 388 Chattel Known to Be Dangerous for Intended Use, Restatement (Second) of Torts (1965).

[5] Under New York law, for instance, the duty to warn in strict liability is identical in nature and scope as the duty in negligence. Martin v. Hacker, 83 N.Y. 1, 8 n.1 (1993). New York law acknowledges that there is no meaningful distinction between negligent and strict liability failure to warn claims. See Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir. 1991) (New York law) (“Failure to warn claims purporting to sound in strict liability and those sounding in negligence are essentially the same.”). See also Rainbow v. Albert Elia Bldg. Co., 49 A.D.2d 250 (4th Dept. 1974) (distinguishing manufacturing and design defects, and permitting “reasonableness” defenses, including state-of-the-art defenses, to the latter in strict products liability), aff’d, 56 N.Y.2d 550 (1981). On the equivalence between negligence and product liability for failure to warn, New York law is aligned with the law of most states. See Restatement (Third) of Torts: Products Liability § 2, and comment I (1998); Restatement (Second) of Torts § 388 & comment n (1965); Restatement (First) of Torts § 388, comment 1 (1934).

[6] The standard for the open and obvious defense, which is many respects is a variant of the sophisticated intermediary defense, is an objective one, based on what would be obvious to the ordinary person. See Plante v. Hobart Corp., 771 F.2d 617, 620 (1st Cir. 1985) (“Where the danger involved in using a product is obvious and apparent, discernible by casual inspection, a supplier is not negligent in failing to warn of that danger.”); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 119 (3d Cir. 1992) (“[W]hether a danger is open and obvious is an objective inquiry, not dependent upon the actual knowledge of the user or his actual awareness of the danger.”); Glittenberg v. Doughboy, 491 N.W.2d 208, 213 (Mich. 1992) (“Determination of the ‘obvious’ character of a product- connected danger is objective.”).

[7] See Linda Regis, “Frame the Sandbox to Sandblasting: Regulation of Crystalline Silica,” 17 Pace Envt’l L. Rev. 207, 208 n. 8 (1999); Richard Ausness, “Learned Intermediaries and Sophisticated Users: Encouraging the Use of Intermediaries to Transmit Product Safety Information,” 46 Syracuse L. Rev. 1185, 1205-07 (1996); Kenneth Willner, “Failures to Warn and the Sophisticated User Defense,” 74 Va. L. Rev. 579 (1988); Victor Schwartz & Russell Driver, “Warnings in the Workplace: The Need for a Synthesis of Law and Communication Theory,” 52 U. Cin. L. Rev. 38 (1983).

[8] Sadowski v. Long Island RR., 292 N.Y. 448, 456 (1944) (emphasis added). A few years later, the United States Supreme Court concurred and quoted Sadowski. Urie v. Tompkins, 337 U.S. 163, 190 (1949).

[9] See, e.g., Goodbar v. Whitehead Bros., 591 F. Supp. 552 (W.D. Va. 1984), aff’d sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985); Smith v. Walter C. Best, Inc., 927 F.2d 736 (3d Cir. 1990) (applying Ohio law in a silica foundry case); Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003) (applying Iowa law to affirm summary judgment); Haase v. Badger Mining Corp., 266 Wis. 2d 970 (Wis. Ct. App. 2003), aff’d, 274 Wis. 2d 143 (2004); Damond v. Avondale Industries, 718 So. 2d 551 (La. App. 1998) (affirming summary judgment for a silica supplier on a worker’s claims for silicosis from sandblasting, which if not done carefully, can be an extremely hazardous); Cowart v. Avondale Indus., 792 So. 2d 73 (La. Ct. App. 2001) (holding that the sophisticated user defense was dispositive in a foundry workplace, which was sophisticated about the potential hazards of its silica use); Bates v. E.D. Bullard Co., 76 So.3d 111 (La.App. 2011) (affirming summary judgment for silica suppliers); Phillips v. A.P. Green Refractories Co., 428 Pa. Super. 167, 630 A.2d 874 (1993), aff’d on other grounds, Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995) (lack of proximate cause for claimed failure to warn).

[10] Virginia law, which governed the Willis case cited by the Sawyer court is illustrative. Compare Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir. 1985) (applying Virginia law, which embraces § 388, but refusing to apply the doctrine because the employer was unaware of asbestos hazards during plaintiffs’ employment before 1964), cert. denied sub nom. Oman v. H.K. Porter, 474 U.S. 970 (1985), with Beale v. Hardy, 469 F.2d 213 (4th Cir. 1985) (holding that Section 388 was a complete defense in silicosis cases under Virginia law). Michigan, another industrialized state with well-developed case law, also illustrates the disparate treatment of asbestos cases. Compare Russo v. Abex Corp., 670 F. Supp. 206, 208 (E.D. Mich. 1987) (holding that “asbestos-containing product manufacturers have an absolute duty to warn because of the unique and patent dangers of asbestos”) with Jodway v. Kennametal, Inc., 207 Mich. App. 622, 525 N.W.2d 883 (Mich. Ct. App. 1994) (applying Section 388 in hard-metal (cobalt) lung disease case); Kudzia v. Carboloy Division, 190 Mich. App. 285, 475N.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). See also Antcliff v. State Employees Credit Union, 414 Mich. 624, 640 (1982); Ross v. Jaybird Automation, Inc., 172 Mich. App. 603, 607 (1988); Rasmussen v. Louisville Ladder Co., Inc., 211 Mich. App. 541, 547-48 (1995); Portelli v. I.R. Construction Products Co., 218 Mich. App. 591, 599 (1996); Mills v. Curioni, 238 F. Supp. 876, 894-96 (E.D. Mich. 2002).

[11] Triplett v. Minnesota Mining & Mfg. Co., 422 F. Supp. 2d 779 (W.D. Ky. 2006).

[12] Bean v. Asbestos Corporation, Ltd., 1998 WL 972122 (Va. Cir. Ct. 1998).

[13] See also Gottschall v. General Electric Co., 2011 U.S. Dist. LEXIS 151563 (E.D. Pa. Dec. 8, 2011) (MDL 875) (California law; granting summary judgment when the Navy’s knowledge of asbestos hazards was equal to that of defendant), rev’d, No. 14-15379, 14-15380, 2016 U.S. App. LEXIS 17248 (9th Cir. 2016).

Divine Intervention in Litigation

January 27th, 2018

The Supreme Being, or Beings, or their Earthly Agents (Angels) rarely intervene in mundane matters such as litigation. Earlier this month, however, there may have been an unsuccessful divine intervention in the workings of a Comal County, Texas, jury, which was deliberating whether or not to convict Gloria Romero Perez of human trafficking.

After the jury reached a verdict, and rang the bell to signal its verdict, the trial judge, the Hon. Jack Robison, waltzed in and proclaimed that that God had told him that Perez was not guilty. According to jury foreperson Mark A. House, Judge Robison told them that he had prayed on the case and that God told him that he had to tell the jury. The state’s attorney was not present to object to the hearsay. House reported that the jury signaled again that it had reached a verdict, and again Judge Robison appeared to proclaim the defendant’s innocence.

Judge Robison’s pronouncements apparently anguished the jurors, some of who were “physically sick, crying and distraught” from the appearance of a putative prophet in the courthouse. Nonetheless, guilty is guilty, and the jury returned its verdict unmoved by Judge Robison. According to news reports, Judge Robison later apologized to the jury, but added something like “if God tells me to do something, I have to do it.” Zeke MacCormack, “Judge facing complaints over trying to sway jury,” San Antonio Express-News (Jan. 20, 2018); Ryan Autullo, “Texas judge interrupts jury, says God told him defendant is not guilty,” American-Statesman (Jan. 19, 2018). Foreperson House filed a complaint against Judge Robison with the judicial conduct commission, but told a local newspaper that “You’ve got to respect him for what he did. He went with his conscience.” Debra Cassens Weiss, “Judge informs jurors that God told him accused sex trafficker isn’t guilty,” A.B.A.J. online (Jan. 22, 2018).Or he was having a stroke. Somewhere, Henry Mencken is laughing and crying uncontrollably.

* * * * * * * * * * * *

For better or worse, I have not experienced divine intervention in my cases. At least, I think not. In one of my cases, the jury foreman and several jurors were in the elevator with my adversary and me, at the end of the trial. The situation was awkward, and punctuated by the foreman’s simple statement that God had directed them to their verdict. No one questioned the gentlemen. I thanked the jurors for their service, but I have never been able to verify the source of the direction or inspiration given to the jury. To this day, I prefer to believe the verdict resulted from my advocacy and marshaling of the evidence.

The case was Edward and Carmelita O’Donnell v. Celotex Corp., et al., Philadelphia County Court of Common Pleas, July Term 1982, No. 1619. My adversary was a very capable African American lawyer, Sandy L.V. Byrd, then of the Brookman, Rosenberg, Brown & Sandler firm in Philadelphia, now a sitting judge in Philadelphia County. As you will see, race was an important ingredient in this case, and perhaps the reason it was tried.

Sandy and I had pulled Judge Levan Gordon1, for the trial, which was noteworthy because Judge Gordon was one of the few trial judges who stood up to the wishes of the coordinating judge (Hon. Sandra Mazer Moss) that all cases be tried “reverse bifurcated,” that is, with medical causation and damages in a first phase, and liability in the second phase.

This unnatural way of trying asbestos personal injury cases had been first advocated by counsel for Johns Manville, which had a huge market share, a distinctive lack of liability defenses, and a susceptibility to punitive damages. In May 1989, when Sandy and defense counsel announced “ready” before Judge Gordon, Johns Manville was in bankruptcy. Reverse bifurcated had long outlasted its usefulness, and had become a way of abridging defendants’ due process rights to a trial on liability. If a jury returned a verdict with damages in phase One, plaintiffs would argue (illegitimately but often with court approval) that it was bad enough that defendants caused their illness, how much worse is it now that they are arguing to take away their compensation.

Worse yet, in trying cases backwards, with reverse bifurcation, plaintiffs quickly learned that they could, in Phase One, sneak evidence of liability, or hint that the defendants were as liable as sin, and thus suggest that the odd procedure of skipping over liability was desirable because liability was well-nigh conceded. The plaintiffs’ direct examination typically went something like:

Q. How did you feel emotionally when you received your diagnosis of asbestos-related _[fill in the blank]____?

A. I was devastated; I cried; I was depressed. I had never heard that asbestos could cause this disease..…

So clearly there was a failure to warn, at least on that colloquy, and that was all juries needed to hear on the matter, from the plaintiffs’ perspective. If the defendants lost in the first phase, and refused to settle, juries were annoyed that they were being kept from their lives by recalcitrant, liable defendants. Liability was a done deal.

At the time, most of the asbestos case trials in Philadelphia were brought by government employees at the Philadelphia Naval Shipyard. The government was an extremely knowledgeable purchaser of asbestos-containing insulation products, and was as, or more, aware of the hazards of asbestos use than any vendor. At the time, 1989, the sophisticated intermediary defense was disallowed under Pennsylvania strict liability law, and so defendants rarely got a chance to deploy it.

In a case that went “all issues,” with negligence and even potential punitive damages, however, the sophisticated intermediary defense was valid under Pennsylvania law. Judge Gordon’s practice of trying all cases, all issues, opened the door to defending the case by showing that there was no failure to warn at all, because the Navy, at its shipyards, was knowledgeable about asbestos hazards. If plaintiff’s testimony were true about lack of protections, then the Navy itself had been grossly negligent in its maintenance and supervision of the shipyard workplace.

Before trial began, on May 8, 1989, the Brookman firm had signaled that the O’Donnell case was on track to settle in a dollar range that was typical for cases involving the age, medical condition, and work history of the plaintiff, Mr. O’Donnell. The settlement posture of the case changed, abruptly however, after jury selection. When the jury was sworn, we had 12 Philadelphians, 11 of whom were African American, and one of whom was Latina. When I asked Sandy whether we were settled at the number we had discussed the previous day, he looked at me and asked why he would want to settle now, with the jury we had. He now insisted that this trial must be tried. Racism works in curious ways and directions.

So we tried the O’Donnell case, the old-fashioned way, from front to back. Both sides called “state of the art” expert witnesses, to address the history of medical knowledge about asbestos-related diseases. We called product identification lay witnesses, as well as several physicians to testify about Mr. O’Donnell’s disputed asbestosis. The lovely thing about the O’Donnell trial, however, was that I had the opportunity to present testimony from the Philadelphia Navy Yard’s industrial hygienist, Dr. Victor Kindsvatter, who had given a deposition many years before. Kindsvatter, who had a Ph.D. in industrial hygiene, was extraordinarily knowledgeable about asbestos, permissible exposure limits, asbestos hazards, and methods of asbestos control on board ships and in the shops.

The result of Judge Gordon’s all issue trial was a fuller, fairer presentation of the case. Plaintiffs could argue that the defendants were horribly negligent given what experts knew in the medical community. Defendants could present evidence that experts at the relevant time believed that asbestos-containing insulation products could be used safely, and that the U.S. Navy was especially eager to use asbestos products on board ships, and had extensive regulations and procedures for doing so. The testimony that probably tipped the balance came from a former shipyard worker, George Rabuck. Mr. Rabuck had been a client of the Brookman firm, and he was their go-to guy to testify on product identification. In the O’Donnell case, as in many others, Rabuck dutifully and cheerfully identified the products of the non-settling defendants, and less cheerfully, the products of the settled and bankrupt defendants. In O’Donnell, I was able to elicit additional testimony from Mr. Rabuck about a shakedown cruise of a new Navy ship, in which someone had failed to insulate a hot line in the boiler room. When an oil valve broke, diesel fuel sprayed the room, and ignited upon hitting the uninsulated pipe. A ship fire ensued, in which several sailors were seriously injured and one died. In my closing argument, I was able to remind the jury of the sailor who died because asbestos insulation was not used on the Navy ship.

On May 18, 1989, the jury came back with a general verdict for the defense in O’Donnell. Judge Gordon entered judgment, from which there was no appeal. Ignoring the plaintiffs’ lawyers intransigence on settlement, Judge Moss was angry at the defense lawyers, as she typically was, for tying up one of her court rooms for Judge Gordon’s rotation in her trial program. Judge Moss stopped asking Judge Gordon to help with the asbestos docket after the O’Donnell case. Without all-issue trials that included negligence claims, sophisticated intermediary defenses went pretty much unexercised in asbestos personal injury cases for the next 25 years.

My real question though, in view of Texas Judge Robison’s epiphany, is whether the defense won in O’Donnell because of the equities and the evidence, or whether an angel had put her finger on the scales of justice. It’s a mystery.


1 Ryanne Persinger, “Levan Gordon, retired judge,” Tribune Staff (Oct. 6, 2016). Judge Gordon was one of the most respected judges in Philadelphia County. He had graduated from Lincoln University in 1958, and from Howard University School of Law in 1961. Gordon was elected to Philadelphia Municipal Court in 1974, and to the Court of Common Pleas in 1979. He died on October 4, 2016.

Putting the Liability Spotlight on Employers

November 30th, 2015

In 2013, the Pennsylvania Supreme Court held that employers could be directly liable to employees for injuries that become manifest outside the time limits (300 weeks) of the Commonwealth’s workman’s compensation statute. Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). The implications for so-called long latency, toxic tort claims were obvious, and the generated some commentary. SeePennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases” (Feb. 14, 2014); “The Erosion of Employer Immunity in Tort Litigation” (Jan. 20, 2015).

The Legal Intelligencer has now reported the first “cashing in” or “cashing out” on the change in Pennsylvania law. Plaintiff’s lawyer, Benjamin Shein, took an employer to trial on claims that the employer was responsible for alleged asbestos exposure that caused John F. Busbey to develop mesothelioma. Bobbie R. Bailey of Leader & Berkon, in Los Angeles, defended. The case was tried before Philadelphia Judge Lisette Shirdan-Harris and a jury. After a three week trial, on November 10, the jury returned a verdict in favor of plaintiff, against the employer defendant, in the amount of 1.7 million dollars. Busbey v. ESAB Group, Phila. Court of Common Pleas, No. 120503046. Max Mitchell, “Employer Found Liable In Asbestos Verdict: Busbey v. ESAB Group $1.7 Million Verdict,” The Legal Intelligencer (Dec. 1, 2015).

For witnesses, Shein called frequent litigation-industry testifiers, Dr. Steven Markowitz on occupational disease, and Dr. Daniel Dupont, a local pulmonary physician. Shein also called one of the pink panther historians, Gerald Markowitz. SeeNarratives & Historians for Hire” (Dec. 15, 2010). The employer defendant called an industrial hygienist, Delno D. Malzahn.

According Ben Shein, the verdict represented the first trial win in Pennsylvania for an asbestos claim against an employer, since the Pennsylvania Supreme Court decided Tooey in 2013. From the Legal Intelligencer’s account, and the line-up of litigation industry witnesses, the plaintiff’s trial evidence on exposure and standard of care seems shaky, and the winner may not be discernible until the appellate review is concluded.

In Illinois, an intermediate appellate court held out the prospect of a legal change similar to Tooey. In 2014, the Illinois Court of Appeals held that workman compensation petitioners, whose claims fell outside the Illinois statute were not barred by the exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2014 IL App (1st) 123219. See Patrick W. Stufflebeam, “Folta v. Ferro Engineering: A Shift in Illinois Workers’ Compensation Protection for Illinois Employers in Asbestos Cases,” News & Press: IDC Quarterly (Mar. 11, 2015).

The Illinois Supreme Court allowed an appeal, as well as extensive amicus briefings from the Illinois Trial Lawyers Association, the Asbestos Disease Awareness Organization, the Illinois AFL-CIO, the Illinois Self-Insurers’ Association, the Illinois Defense Trial Counsel, a joint brief from insurers,[1] and a joint brief from various manufacturing companies.[2]

Earlier this month, the Illinois Supreme Court reversed and held that even though claims fell outside the Illinois workman’s compensation statute, those claims were still barred by the Act’s exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2015 IL 118070 (November 4, 2015).


[1] the American Insurance Association, Property Casualty Insurers Association of America, and the Travelers Indemnity Company.

[2] Caterpillar Inc., Aurora Pump Company, Innophos, Inc., Rockwell Automation, Inc., United States Steel Corporation, F.H. Leinweber Company, Inc., Driv-Lok, Inc., Ford Motor Company, and ExxonMobil Oil Corporation.

Sophisticated Intermediary Defense Prevails in New York

May 9th, 2015

Several years ago, the New York Appellate Division, 4th Department, reversed summary judgment for defendants in the cases of two workers who alleged that they had developed silicosis from silica exposure to defendants’ silica, at the Olean, New York, facility of their employer, Dexter Corporation (now Henkel Corporation). The trial court motions were based upon the “sophisticated intermediary” defense, but the Appellate Division reversed, holding that there was a genuine issue of material fact with respect to potential confusion between amorphous and crystalline silica, based upon statements in an affidavit of a plaintiffs’ expert witness, made without personal knowledge. See Pete Brush, “NY Court Revives Workers’ Silica Inhalation Suits” (March 24, 2009).

On remand, further discovery and an amplified evidentiary record led to new motions for summary judgment. In a February 26, 2015, order, the New York Supreme Court for Cattaraugus County granted the motions, noting that “the sophisticated intermediary doctrine was tailor-made” for the facts of the two cases. Rickicki v. Borden Chemical, et al., Index No. 53395, and Crowley v. C-E Minerals, Inc., et al., Index No. 61024, N.Y. Supreme Ct., Cattaraugus Cty. (Feb. 26, 2015) (Patrick H. NeMoyer, J.), Slip op. at 24. See also Casetext, “Summary Judgment Re-entered After Remand from the NY Appellate Division in Rickick v. Borden” (April 2, 2015); HarrisMartin, “N.Y. Trial Court Awards Summary Judgment to Silica Defendant, Recognizes Sophisticated Intermediary Doctrine” (March 27, 2015).

The Rickicki case turned 25 years old in February 2015.