Sophisticated User Defense Gains Acceptance

California is the most recent state to acknowledge the sophisticated user doctrine. Johnson, 179 P.3d at 908. There, the court found that the defense applied equally to strict liability and negligence failure-to-warn claims. Id. at 911. It further found that the duty to warn was measured by what is “generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiff's subjective knowledge.” Id.

New York

A surge of recent New York state court cases have firmly entrenched in state case law the sophisticated user doctrine, a doctrine which had long been accepted by federal courts interpreting New York state law. See e.g., Billiar v. Minn. Mining and Mfg. Co., 623 F.2d 240, 243 (2nd Cir. 1980). The most recent New York state case is Steuhl v. Home Therapy Equip., Inc., 51 A.D.3d 1101(3rd Dept. 2008), in which the Appellate Division, Third Department determined that either no duty was owed or that the duty to warn plaintiff was discharged by the defendant manufacturer's sale of the injurious product to a co-defendant who the court determined was a “knowledgeable user”; the co-defendant sold and assembled the product that eventually injured the plaintiff; and the co-defendant's employee, who had received training on assembling the product, had assembled the product for five years, and assembled the injurious product at issue, admitted that he was aware of the specific danger at issue in the case. Similarly, in Rickicki v Borden Chemical, Index No. 53395, Jan. 23, 2007 N.Y.L.J. 24, col 3 (Sup. Ct. Cattaraugus Cty Jan. 23, 2007), the court determined that the supplier fulfilled its obligation to warn by warning plaintiff's employer and thus granted the supplier's summary judgment motion. There, the supplier warned the employer, and the evidence showed that the warnings ultimately were relayed to the plaintiff. The court found that the employer was best equipped to warn its employees and that it was New York's policy with respect to the dangers of silica to require employers to warn employees. It also found that a system of delegating the task of warning users to the party best able to warn creates a strong incentive by imposing the full cost of the injuries not on the party who failed to warn, but who was best able to warn. Similarly, in Donuk v. Sears, Roebuck & Co., 15 Misc. 3d 1142(A), 2007 WL 1574455 (Sup. Ct. Kings Co. 2007), the court granted summary judgment to the defendant where it found, inter alia, that the dangers presented “would ordinarily be seen and appreciated by those who would be expected to use the product.” 2007 WL 1574455, at 2.

Other States

In addition to California and New York, the following states have also acknowledged the sophisticated user doctrine as a defense in their respective jurisdictions: Connecticut: Moran v. Eastern Equip. Sales, Inc., 818 A.2d 848 (Conn. App. Ct. 2003); Massachusetts: Carrel v. Nat'l Cord & Braid Corp., 852 N.E.2d 100 (Mass. 2006); Louisiana: Harvey v. Toyota Material Handling, USA, Inc., Civ. Action No. 05-0561, 2007 WL 1115235 (W.D. La. April 13, 2007); see also Swope v. Columbian Chemicals Co., 281 F.3d 185 (5th Cir. 2002); Wisconsin: Mohr v. St. Paul Fire & Marine Co., 674 N.W.2d 576 (Wis. Ct. App. 2003).

Not all jurisdictions recognize the sophisticated user defense for all claims. For instance, Pennsylvania and New Jersey do not recognize the defense in strict product liability claims. Andreassen v. Saf-Gard Safety Shoe Co., Inc., 78 Pa. D. & C 4th 285 (Pa. Com. Pl. 2005) (holding that the sophisticated user defense may not be asserted as a defense in strict product liability actions); Perlman v. Virtua Health, Inc., No. Civ. 01-0651 (RBK), 2005 WL 1038953, at * 6-8 (D.N.J. 2005) (finding sophisticated user defense inapplicable to strict liability failure-to-warn claims). Some jurisdictions do not recognize the defense at all, regardless of whether the claim sounds in negligence or strict liability. Headley v. Ferro Corp., No. C07-717-JPD, 2008 WL 2180104, at *10 (W.D. Wash. May 22, 2008) (“[Defendant] has not cited, and this Court cannot find, a single Washington case adopting or applying the Sophisticated User Doctrine.”).

Determination

Any determination about whether the doctrine applies against a failure-to-warn claim necessarily is fact intensive. Liriano v. Hobart Corp., 92 N.Y. 2d 232, 243 (1998) (“Failure-to-warn liability is intensively fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause.”). Accordingly, extensive factual development through discovery is crucial.

Because the doctrine is grounded on the theory that the knowledge and sophistication of the user alleviates the supplier's or manufacturer's duty to warn, a supplier or manufacturer should develop the appropriate record establishing both knowledge and sophistication of the end user and any intermediary purchaser, including but not limited to, the plaintiff's employer. Extensive document discovery should be conducted concerning all the records from plaintiff's employer, including but not limited to, plaintiff's personnel file, training records, training materials and other safety materials that the plaintiff did or should have had access to. In addition, documents concerning the employer's safety manuals, any OSHA-required plans or safety violations, training materials, and the like should be collected. In addition, many employers belong to trade associations that distribute and warn about certain hazards. Moreover, the plaintiff's union may have run safety training programs that plaintiff attended.

Conclusion

In addition to collecting documents from the plaintiff and any intermediate purchaser, the supplier or manufacturer must also develop its own evidentiary record needed to support the defense. Documents concerning any notification to customers about any potential hazard associated with the product should be collected. Product warning labels, Material Safety Data Sheets and any other safety material that was distributed with the product should be collected.

Beth L. Kaufman, a member of this newsletter's Board of Editors, is a partner and Ronit D. Appel was a summer associate at Schoeman, Updike & Kaufman, LLP, a certified women-owned law firm with offices in New York and Chicago.

Just a few months ago, the Supreme Court of California joined a number of states in recognizing that the “sophisticated user doctrine” is a valid defense against failure-to-warn product liability claims ' whether sounding in negligence or strict product liability. Johnson v American Standard, Inc., 179 P.3d 905 (Cal. 2008). The sophisticated user doctrine is grounded on the theory that a manufacturer or supplier has no duty to warn a user or purchaser when that user or purchaser is a “sophisticated user” ' one presumed already to be aware of the dangers ' because the failure to give a warning could not be the legal cause of the plaintiff's injuries or harm.

The sophisticated user doctrine has become a prevalent defense nationwide in product liability actions involving failure-to-warn claims. This article expounds upon recent cases that help to entrench the sophisticated user doctrine in many states' case law, to a full or limited degree. Finally, the article provides some pointers to help practitioners establish an evidentiary record supporting the defense.

California

California is the most recent state to acknowledge the sophisticated user doctrine. Johnson, 179 P.3d at 908. There, the court found that the defense applied equally to strict liability and negligence failure-to-warn claims. Id. at 911. It further found that the duty to warn was measured by what is “generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiff's subjective knowledge.” Id.

New York

A surge of recent New York state court cases have firmly entrenched in state case law the sophisticated user doctrine, a doctrine which had long been accepted by federal courts interpreting New York state law. See e.g., Billiar v. Minn. Mining and Mfg. Co. , 623 F.2d 240, 243 (2nd Cir. 1980). The most recent New York state case is Steuhl v. Home Therapy Equip., Inc. , 51 A.D.3d 1101(3rd Dept. 2008), in which the Appellate Division, Third Department determined that either no duty was owed or that the duty to warn plaintiff was discharged by the defendant manufacturer's sale of the injurious product to a co-defendant who the court determined was a “knowledgeable user”; the co-defendant sold and assembled the product that eventually injured the plaintiff; and the co-defendant's employee, who had received training on assembling the product, had assembled the product for five years, and assembled the injurious product at issue, admitted that he was aware of the specific danger at issue in the case. Similarly, in Rickicki v Borden Chemical, Index No. 53395, Jan. 23, 2007 N.Y.L.J. 24, col 3 (Sup. Ct. Cattaraugus Cty Jan. 23, 2007), the court determined that the supplier fulfilled its obligation to warn by warning plaintiff's employer and thus granted the supplier's summary judgment motion. There, the supplier warned the employer, and the evidence showed that the warnings ultimately were relayed to the plaintiff. The court found that the employer was best equipped to warn its employees and that it was New York's policy with respect to the dangers of silica to require employers to warn employees. It also found that a system of delegating the task of warning users to the party best able to warn creates a strong incentive by imposing the full cost of the injuries not on the party who failed to warn, but who was best able to warn. Similarly, in Donuk v. Sears, Roebuck & Co. , 15 Misc. 3d 1142(A), 2007 WL 1574455 (Sup. Ct. Kings Co. 2007), the court granted summary judgment to the defendant where it found, inter alia, that the dangers presented “would ordinarily be seen and appreciated by those who would be expected to use the product.” 2007 WL 1574455, at 2.

Other States

In addition to California and New York, the following states have also acknowledged the sophisticated user doctrine as a defense in their respective jurisdictions: Connecticut: Moran v. Eastern Equip. Sales, Inc. , 818 A.2d 848 (Conn. App. Ct. 2003); Massachusetts: Carrel v. Nat'l Cord & Braid Corp. , 852 N.E.2d 100 (Mass. 2006); Louisiana: Harvey v. Toyota Material Handling, USA, Inc., Civ. Action No. 05-0561, 2007 WL 1115235 (W.D. La. April 13, 2007); see also Swope v. Columbian Chemicals Co. , 281 F.3d 185 (5th Cir. 2002); Wisconsin : Mohr v. St. Paul Fire & Marine Co. , 674 N.W.2d 576 (Wis. Ct. App. 2003).

Not all jurisdictions recognize the sophisticated user defense for all claims. For instance, Pennsylvania and New Jersey do not recognize the defense in strict product liability claims. Andreassen v. Saf-Gard Safety Shoe Co., Inc., 78 Pa. D. & C 4th 285 (Pa. Com. Pl. 2005) (holding that the sophisticated user defense may not be asserted as a defense in strict product liability actions); Perlman v. Virtua Health, Inc., No. Civ. 01-0651 (RBK), 2005 WL 1038953, at * 6-8 (D.N.J. 2005) (finding sophisticated user defense inapplicable to strict liability failure-to-warn claims). Some jurisdictions do not recognize the defense at all, regardless of whether the claim sounds in negligence or strict liability. Headley v. Ferro Corp., No. C07-717-JPD, 2008 WL 2180104, at *10 (W.D. Wash. May 22, 2008) (“[Defendant] has not cited, and this Court cannot find, a single Washington case adopting or applying the Sophisticated User Doctrine.”).

Determination

Any determination about whether the doctrine applies against a failure-to-warn claim necessarily is fact intensive. Liriano v. Hobart Corp. , 92 N.Y. 2d 232, 243 (1998) (“Failure-to-warn liability is intensively fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause.”). Accordingly, extensive factual development through discovery is crucial.

Because the doctrine is grounded on the theory that the knowledge and sophistication of the user alleviates the supplier's or manufacturer's duty to warn, a supplier or manufacturer should develop the appropriate record establishing both knowledge and sophistication of the end user and any intermediary purchaser, including but not limited to, the plaintiff's employer. Extensive document discovery should be conducted concerning all the records from plaintiff's employer, including but not limited to, plaintiff's personnel file, training records, training materials and other safety materials that the plaintiff did or should have had access to. In addition, documents concerning the employer's safety manuals, any OSHA-required plans or safety violations, training materials, and the like should be collected. In addition, many employers belong to trade associations that distribute and warn about certain hazards. Moreover, the plaintiff's union may have run safety training programs that plaintiff attended.

Conclusion

In addition to collecting documents from the plaintiff and any intermediate purchaser, the supplier or manufacturer must also develop its own evidentiary record needed to support the defense. Documents concerning any notification to customers about any potential hazard associated with the product should be collected. Product warning labels, Material Safety Data Sheets and any other safety material that was distributed with the product should be collected.

Beth L. Kaufman, a member of this newsletter's Board of Editors, is a partner and Ronit D. Appel was a summer associate at Schoeman, Updike & Kaufman, LLP, a certified women-owned law firm with offices in New York and Chicago.