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

by Raphael Metzger, Esq.



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 second of a four-part series which explains why the defense should not apply in toxic tort cases.  The first part explained that the defense is contrary to federal and state statutory and regulatory law.  This part of the series will show that the defense is contrary to the Restatement Second of Torts.  The third part in the series will delineate the limited scope of the defense in those jurisdictions that have adopted it.  The last installment will explain why the defense should not succeed on summary judgment against a properly drafted toxic tort complaint.

1.         Section 388 of the Restatement (Second) of Torts

Most courts have adopted Section 388 of the Restatement Second of Torts concerning a manufacturer’s or supplier’s duty to warn ultimate users of product hazards.  This section states:

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.   Restatement (Second) of Torts § 388 (1965).
Thus, the Restatement 2nd does not immunize chemical manufacturers and suppliers from tort liability based on the sophistication of intermediaries.  Indeed, Section 388 does not focus on the sophistication of intermediaries at all, but rather requires chemical manufacturers and suppliers to provide adequate warnings of toxic hazards to intermediaries regardless of their sophistication. 

2.         Comment n to Section 388 of the Restatement 2nd

Comment n to section 388 states that the supplier's duty to warn may be discharged by providing information about the product's dangerous propensities to a third person upon whom it can reasonably rely to communicate the information to the ultimate users of the product or those who may be exposed to its hazardous effects.  In addition, comment n to section 388 explains:

Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability.  It is merely a means by which this information is to be conveyed to those who are to use the chattel.  The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it. . . .

Here, as in every case which involves the determination of the precautions which must be taken to satisfy the requirements of reasonable care, the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them,     . . . and the magnitude of the risk is determined not only by the chance that some harm may result but also the serious or trivial character of the harm which is likely to result. . . .

Thus, while it may be proper to permit a supplier to assume that one through whom he supplies a chattel which is only slightly dangerous will communicate the information given to him to those who are to use it unless he knows that the other is careless, it may be improper to permit him to trust the conveyance of the necessary information of the actual character of a highly dangerous article to a third person of whose character he knows nothing.  It may well be that [the supplier] should take the risk that this information may not be communicated, unless he exercises reasonable care to ascertain the character of the third person, or unless from previous experience with him or from the excellence of his reputation the supplier has positive reason to believe that he is careful.  In addition to this, if the danger involved in the ignorant use of a particular chattel is very great, it may be that the supplier does not exercise reasonable care in entrusting the communication of the necessary information even to a person whom he has good reason to believe to be careful.

Many such articles can be made to carry their own message to the understanding of those who are likely to use them by the form in which they are put out, by the container in which they are supplied, or by a label or other device, indicating with a substantial sufficiency their dangerous character.  Where the danger involved in their ignorant use is great and such means of disclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them.

3.         The Restatement Approach

The focus of the Restatement Second approach is whether, in light of all the circumstances, a manufacturer or supplier acted reasonably in relying on an intermediary to pass its adequate warnings on to the ultimate user.  Rest.2d Torts § 388, com. n.; Rest.3d, Torts: Product Liability, § 2, com. i; Adkins v. GAF Corp. (6th Cir. 1991) 923 F.2d 1225, 1230 ["The pivotal inquiry in determining whether this defense is available is a fact-specific evaluation of the reasonableness of the supplier's reliance on the third party to provide the warning"]; Adams v. Union Carbide Corp. (6th  Cir. 1984) 737 F.2d 1453, 1457; Dougherty v. Hooker Chemical Corp. (3d Cir. 1976) 540 F.2d 174, 177; Willis v. Raymark Industries, Inc. (4th Cir. 1990) 905 F.2d 793, 797; Eagle-Picher v. Balbos (Md. 1992) 604 A.2d 445, 464; Kennedy v. Mobay (Md.Ct.Spec. App. 1990) 579 A.2d 1191, 1199, aff’d (Md. 1992) 601 A.2d 123; Dougherty v. Hooker Chemical Corp. (3rd Cir. 1976) 540 F.2d 174, 182.  "No rigid rules determine whether a seller is justified in relying on an intermediary to communicate potential hazards to ultimate users."  Smith v. Walter C. Best, Inc. (3d Cir. 1990) 927 F.2d 736, 739.

The Restatement Second approach does not absolve or relieve manufacturers and suppliers of liability for failure to warn based solely on an intermediary’s knowledge or sophistication.  As explained by the Maryland Court of Appeals in Eagle-Picher v. Balbos, supra, 604 A.2d at page 464: “Under the Restatement view a court focuses on the conduct of the supplier of the dangerous product, not on the conduct of the intermediary. [Citation] Thus, proof that the intermediary knew the product was dangerous does not, in and of itself, absolve the suppler of a duty to warn ultimate users.  Rather, the finder of fact considers a variety of actors in order to determine whether the supplier reasonably relied upon the intermediary to warn [ultimate] users.  Those factors include: ‘(1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burdens imposed on the supplier by requiring that he directly warn all users.”  (Emphasis in original)

Under the Restatement Second rationale, the fact that an employer possesses knowledge of a product’s dangers does not extinguish a manufacturer’s or supplier’s duty to warn. Selma Pressure Treating Co. V. Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, 1623. [“The mere fact that [the employer] uses the chemicals in a business enterprise, as opposed to being a citizen consumer, does not relieve the chemical suppliers of the duty to warn” and “a user’s knowledge as to some dangers associated with a product does not relieve a supplier of the duty to warn of other dangers unknown to the user”]; see, Schwoerer v. Union Oil Co., supra, 14 Cal.App.4th at pp. 111-114; accord, e.g., In re Air Crash Disaster (6th Cir. 1996) 86 F.3d 498, 522; Dougherty v. Hooker Chemical Co., supra, 540 F.2d at p. 182; Baker v. Monsanto Co. (S.D. Ind. 1997) 962 F.Supp. 1143, 1150-1151; Reibold v. Simon Aerials, Inc. (E.D. Va. 1994) 859 F.Supp. 193, 201; Hall v. Ashland Oil Co. (D.Conn. 1986) 625 F.Supp. 1515, 1520-1522; Eagle-Picher v. Balbos, supra, 604 A.2d at p. 464; Kennedy v. Mobay, supra, 579 A.2d at pp. 1199-1203; but see, Akin v. Ashland Chemical (10th Cir. 1998) 156 F.3d 1030, 1036-1037 [under Oklahoma law, which imposes no duty to warn when a purchaser knows or should know of potential dangers and the Rest.2nd Torts § 388, defendant manufacturer had no duty to warn the U.S. Air Force of dangers of low level exposure to chemicals because of wealth of research available, purchaser’s ability to conduct studies, and its extremely knowledgeable staff].  Instead, the employer’s knowledge and sophisticated is a factor for the trier of fact to consider together with all the other evidence.

4.         The Restatement 2nd Approach has been Adopted in the Restatement 3rd

The rule established in Section 388 of the Restatement Second of Torts has been confirmed and adopted in the new Restatement Third of Torts, which is much more conservative (i.e., defendant-friendly) in its approach.  Indeed, Section 2, comment i, of the Restatement Third of Torts explains the rule as follows:

There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings.  The standard is one of reasonableness in the circumstances.  Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user.

5.         The Reasonableness of a Chemical Manufacturer’s Reliance on an Employer To Pass on Adequate Warnings to an Ultimate User Is a Question of Fact

The reasonableness of a chemical manufacturer’s reliance on an intermediary to pass adequate warnings on to the ultimate user is 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 271, 279; Kennedy v. Mobay, 579 A.2d at p. 1203, Eagle-Picher v. Balbos, supra, 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.

Likewise, whether an employer is "sophisticated" is ordinarily a question of fact for the jury to decide.  Mozeke v. International Paper Co., 933 F.2d 1293, 1297 (5th Cir. 1991).

Several cases have rejected the defense or denied summary judgment based on the defense because the manufacturer’s reasonableness in relying on the intermediary to pass along its warnings presented a question of fact which required resolution by a jury.  See, e.g., Hegna v. E.I. du Pont de Nemours and Co., 806 F.Supp. 822 (D. Minn. 1992) [because magnitude of product’s risk was substantial and manufacturer’s reliance on intermediary may have been unreasonable, manufacturer had duty to warn of possible dangers of using product for temporomandibular implants].

The defense has also generally been rejected in asbestos cases.  See, e.g., In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831 (2d Cir. 1992); In re Asbestos Litigation, 986 F.Supp. 761 (S.D.N.Y. 1992); In re Joint Eastern and Southern District Asbestos Litigation, 827 F.Supp. 1014 (S.D.N.Y. 1993); Adkins v. GAF Corp., 923 F.2d. 1225 (6th Cir. 1991) [ACL’s knowledge of asbestosis hazard required it to give warning, even though intermediary Celotex was also aware of the hazards, because it was unreasonable for ACL to rely on Celotex to warn users].

Similarly, Natural Gas Odorizing Inc. v. Downs, 685 N.E.2d 155 (Ct.App.Ind. 1997), held that although a public utility is aware of the hazard of natural gas, it is not necessarily aware of the dangers associated with odor fade, and rejected the defense asserted by a natural gas producer.

6.         Conclusion

The Restatement 2nd of Torts and the new Restatement 3rd of Torts do not exonerate chemical manufacturers and suppliers from liability based on the sophistication of intermediaries to convey toxic hazard warnings to workers and other downstream users of chemical products, but require that such warnings be given to intermediaries regardless of their sophistication.  Under the Restatements, the liability inquiry focuses not on the sophistication of the intermediary, but rather on its reliability to convey the toxic hazard warnings given to it by the manufacturer to exposed workers.  Where the manufacturer or supplier fails to provide an adequate toxic hazard warning in the first instance, there can be no “sophisticated intermediary” defense.


This article was published in Mealey’s Emerging Toxic Torts on August 18, 2000, as the second of a series of four articles regarding the sophisticated intermediary defense in toxic tort cases.

The defense is sometimes also called the “sophisticated purchaser” defense, the “learned intermediary” defense and, where the intermediary is the plaintiff’s employer, the “sophisticated employer” defense.

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