CaliforniaThe California Supreme Court recently decided to review a case that involved the "sophisticated user defense," a doctrine that just took a recent beating in the Court of Appeal for the Second District. By way of background, the sophisticated user defense applies to both negligence and strict liability claims based on failure to warn. Under such a defense, a manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger. Because sophisticated users are charged with knowing the particular product's dangers, the failure to warn of those dangers is not the legal cause of any injury that product may cause.

In Webb v. Special Electric Co., Inc., the defendant was a broker for a mine in South Africa that was one of several suppliers of crocidolite asbestos fibers to Johns-Manville between 1974 and 1980. Although crocidolite was not part of the formula for transite pipe, there was evidence that crocidolite asbestos was added to the mix for Johns-Manville transite pipe that was eventually used by plaintiff William Webb. Mr. Webb and his wife Jacqueline Webb filed a lawsuit for personal injury against several different defendants, including Special Electric. The Webbs claimed that Special Electric was aware of the risks of injury related to the asbestos it brokered, that Mr. Webb was unaware of those risks, and that Special Electric failed to warn Mr. Webb of these risks.

The jury awarded the Webbs economic and non-economic damages in the amount of $5,004.695, and attributed 18% fault to Special Electric, 49% fault to Johns-Manville, and 33% fault to other parties. Special Electric brought motions for non-suit and directed verdict, requesting the trial court to enter a judgment in its favor contrary to the jury's verdict. In both its motions, Special Electric argued that it had no duty to warn Johns-Manville of the dangers of asbestos, because Johns-Manville had already been warned of those dangers or because the dangers were obvious and known to Johns-Manville, a sophisticated user of asbestos. Special Electric also argued that it had no duty to take measures to warn unsophisticated downstream users, like Mr. Webb, of products containing its asbestos because Special Electric could rely on Johns-Manville to provide these warnings. The trial court granted Special Electric's motions, and entered judgment in favor of Special Electric.

The Webbs appealed and the Court of Appeal reversed on both procedural and substantive grounds. (This article focuses on the substantive grounds.) The Court of Appeal agreed that Johns-Manville was a sophisticated user that did not need to be provided warnings by Special Electric about the dangers of asbestos. However, the Court of Appeal held that Johns-Manville's status as a sophisticated user did not release Special Electric's duty to warn ordinary consumers and end users. The court reasoned that a litany of cases hold that when a manufacturer or supplier places a dangerous product in the stream of commerce, a duty arises to warn foreseeable consumers about the product's hazards. The duty is owed not just to the product's initial purchaser, but also to a downstream user or consumer such as Mr. Webb.

The Court of Appeal reasoned that the question of whether all asbestos Special Electric shipped to Johns-Manville had warnings, whether the warnings were adequate, and whether reasonable efforts to warn downstream users could have been undertaken by Special Electric were issues of fact for the jury, and there was no basis for the trial court's reversal.

Such a ruling certainly complicates the analysis of when a sophisticated user defense may be viable. The Webb Court appears to be limiting the sophisticated user defense to situations where the consumer or end user qualifies as a sophisticated user. The court reasons that it can be a tort to fail to tell an entity like Johns-Manville something it already knows if Johns-Manville then fails to communicate the information to an end user.

There appears to be no real analysis of the practicalities of how Special Electric would have had the ability to compel Johns-Manville to provide warnings, or how Special Electric was supposed to know who were Johns-Manville's products' consumers or end users. The California Supreme Court will hopefully clarify the circumstances under which the sophisticated user doctrine is a viable defense, but unfortunately there is no guarantee that will happen any time soon.

Robert M. ChannelPamela E. StevensFeel free to contact the authors with any questions:  

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Robert M. Channel at
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Pamela E. Stevens at
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