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The Many Faces of the Sophisticated User Defense

By John F. Parker and Maria C. John

In tort actions involving negligent failure to warn claims, some defendants have found a safe haven in employing the sophisticated user defense. Typically, manufacturers, suppliers and distributors of dangerous products are obligated to warn purchasers and foreseeable users of the dangers or health risks associated with those products. But this duty to warn may be obviated if the user of the product is already aware of the dangers associated with it. These users are known as “sophisticated” or “knowledgeable” users, for whom a warning requirement is less necessary.

Not all jurisdictions recognize the sophisticated user defense, which is sometimes referred to as the sophisticated purchaser or knowledgeable user defense. For example, Pennsylvania1 and New Jersey do not recognize the defense in strict liability actions; and in the few instances where a defendant has raised the defense in California, courts there have either declined to address it or found it inapplicable. Most states, however, have a body of case law that acknowledges some form of the defense in tort actions.

In Michigan, the focus is on the purchaser’s knowledge. Thus, “where an employer/purchaser is a sophisticated user of a manufacturer’s products, [and] the employer/purchaser is in the best position to warn the ultimate user of the dangers associated with a product,” the sellers and manufacturers are relieved from the duty to warn the ultimate user. See Muszynski v. Automotive Chemical Corp., 1996 WL 33358101 (Mich. App. 1996) at *3.

Louisiana has a less strict standard. Where a manufacturer proves that the “plaintiff (or his employer) should have known of the danger," no duty exists under Louisiana law to warn an employee of a sophisticated user or purchaser of the danger of a product. See Swope v. Columbian Chemicals Co., 281 F.3d 185 (5th Cir. 2002) (emphasis added).

In addressing the viability of the defense for the first time, the Maryland Court of Special Appeals noted that Maryland’s courts would recognize the sophisticated user/bulk supplier defense in a negligent failure to warn case. See Kennedy v. Mobay Corp., 84 Md. App. 397, 406 (Ct. App. 1990). The court acknowledged other jurisdictions that have adopted the defense and stated:

In alleged negligent failure to warn situations…if the danger related to the particular product is clearly known to the purchaser/employer, then there will be no obligation to warn placed upon the supplier. Instead it becomes the employer’s responsibility to guard against the known danger by either warning its employees or otherwise providing the necessary protection.

See id.

In a variation on the defense, Ohio’s bulk supplier/sophisticated user doctrine provides that a manufacturer can discharge its duty to warn by providing the necessary information to an intermediary upon whom it can reasonably rely to communicate the information to the ultimate user of the product. See Midwest Specialties, Inc. v. Crown Industrial Products Co., 940 F.Supp. 1160, 1165 (N.D. Oh. 1996). The court noted that the manufacturer does not act unreasonably by failing to warn intermediate purchasers of dangers about which the intermediate purchasers are already knowledgeable. See id.

The cases have uniformly held that the purpose of a warning is to apprise a party of danger of which he has no knowledge and thereby enable him to take measures which will protect him against those dangers; however, when a danger is obvious and generally appreciated, nothing of value is had by a warning and none is required under those circumstances.

See id.

But in Ohio, when a manufacturer raises the bulk supplier/sophisticated user defense, “the pivotal question becomes the reasonableness of the supplier’s reliance on the intermediary to provide the necessary warning.”2 See id.

The reasonableness standard is the backbone of Virginia’s application of the defense. Virginia courts recognize the sophisticated purchaser-user defense and interpret it through the eyes of the Restatement (Second) Torts § 388. In utilizing this approach, Virginia courts apply

the section 388 comment “n” test for reasonable reliance…to determine whether the seller owed a duty of warning to the ultimate user. Reasonableness draws the boundaries of that duty [such that] the formal line of duty between the defendant and the plaintiff comes from the duty approach, rather than from the Restatement approach which focuses on the breach of that duty. This shift of focus…allows a judge to determine knowledgeable purchaser issues as a matter of law, instead of delegating the question of breach to the jury.

See Bean v. Asbestos Corp., 1998 WL 972122 (Va. Cir. Ct. 1998). The Restatement (Second) of Torts § 388 provides that in order to hold a manufacturer liable under a failure to warn theory, the plaintiff must show that the manufacturer: (a) supplies a defective or dangerous product; (b) has no reason to believe that the user will realize that product’s dangerous condition; and (c) cannot reasonably rely upon the purchaser/ employer to supply necessary warnings to the ultimate users of the product. See Bean v. Asbestos Corp., 1998 972122 at *30 (citing Restatement of the Law, Second, Torts § 388 (The American Law Institute 1965)).[3] In the Bean case, the court held that the defendants (asbestos suppliers) could reasonably assume that “an established industrial purchaser of raw asbestos, such as [the plaintiff’s employer] Abex, would be a knowledgeable or sophisticated purchaser, due to its necessary and substantial expertise.” See id.

In New York, the defense is called the “knowledgeable user” doctrine. It is applicable to relieve a manufacturer or supplier of liability on a failure to warn theory where the purchaser or user knows or has reason to know of the dangerous propensities of the product, independently of the information supplied to him by the manufacturer or distributor. Oeffler v. Miles, Inc., 169 Misc.2d 447, 642 N.Y.S.2d 761 (N.Y. Sup. Ct. 1996). In order to raise this defense successfully, the user must have obtained his or her knowledge without the benefit of warnings from the manufacturer or supplier.

An additional consideration is that this doctrine involves a subjective test: whether the particular user was aware of the danger. McDaniel v. Williams, 23 A.D.2d 729, 257 N.Y.S.2d 702 (1st Dep’t 1965); Rosebrock v. General Electric, 236 N.Y. 227, 140 N.E. 571 (1923). When there is uncontested and clear evidence that an entity knows of the danger, summary judgment is appropriate. See Kerr v. Koemm, 557 F.Supp. 283 (S.D.N.Y. 1983).

Courts have held that “a knowledgeable user is one who is actually aware of the dangerous nature of the product supplied.” Liriano v. Hobart Corp., 1996 U.S. Dist. LEXIS 7727 (1996). In order to prevail on the defense, a defendant must prove that, without the benefit of warnings, the user was already aware of the dangers associated with a given product. The Liriano court stated that the question of whether a plaintiff falls within the knowledgeable user exception is “for the jury to decide.” See id.

The Second Circuit has noted that New York’s knowledgeable user exception “ordinarily applies to professionals and skilled tradespeople, but has not been applied to lay persons, even those with some familiarity with the product.” See Billar v. Minnesota Mining and Mfg. Co., 623 F.2d 240, 244 (2d Cir. 1980).

While several variations on the application of the sophisticated user defense exist, there are some common themes upon which most courts would agree. First, a presumption exists that sellers, manufacturers, and suppliers of dangerous products have a duty to warn purchasers of their products of the associated dangers. Second, it is reasonable for the sellers of these products who commonly deal with sophisticated purchasers to make assumptions about those purchasers’ level of knowledge. Third, courts recognize that a purchaser or user who is already experienced with or knowledgeable about the dangers of a product cannot reasonably be said to rely on warnings provided by the manufacturer or supplier of that product. Fourth, the rationale for this is that someone who is already aware of a particular danger does not need to be warned of that very danger. Fifth, a casual or inexperienced user of the product or someone with only a passing knowledge cannot be considered a “sophisticated user.” In the final analysis, the determination of who is and is not a “sophisticated user” depends on how a court in a particular jurisdiction chooses to apply these issues in the context of the defense.

Notes

1 The Pennsylvania Supreme court briefly commented on the application of the sophisticated user defense. See Phillips v. A-Best Products, Co., 542 Pa. 124 (1998). In Phillips an employee of the steel industry developed silicosis and brought a product liability/failure-to-warn action against, among others, a supplier of silica sand. Two judges on the lower court panel reversed a jury verdict in favor of the plaintiff, holding that as a matter of law the product was not unreasonably dangerous and also that, under the sophisticated user defense, the suppliers reasonably relied upon plaintiff’s employer, U.S. Steel, to communicate the dangers of prolonged exposure of silica dust to its employees, as such dangers had been known by U.S. Steel and generally within the industry for decades. Declining to adopt the sophisticated user defense, the Supreme court affirmed the appellate court’s reversal of the jury verdict, and held that as a matter of law the plaintiff could not prove that the supplier’s failure to warn caused his injuries. Moreover, the Supreme Court noted that that it need not address the sophisticated user defense because plaintiff had not established causation, and it would not disrupt Pennsylvania’s prior decisions that precluded application of the defense.
2 In affirming the district court decision, the Sixth Circuit also ruled that it was unwilling to adopt the argument that the explicit provision in Ohio law for the “learned intermediary” in pharmaceutical cases precludes recognition of the “sophisticated user” doctrine in non-pharmaceutical cases. Midwest Specialties v. Crown Indus. Prods. Co., 1998 U.S. App. LEXIS 3944 (6th Cir. 1998).
3 Comment “n” to § 388 discusses six factors to be used to determine the extent of a manufacturer’s duty to warn: 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 risk involved; and 6) the burdens imposed upon the supplier by requiring that they directly warn all users.

ABOUT THE AUTHORS

John F. Parker is a Partner and Maria C. John is an Associate at Mound Cotton Wollan & Greengrass.

This article originally appeared in the Winter 2004 issue of the Mound Cotton Wollan & Greengress Newsletter. Used with permission.

riskVue | The webzine for risk management professionals
March 2005