Court adopts sophisticated user defense

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Hon. Richard S. Brown

The Wisconsin Court of Appeals on Aug. 6 adopted the “sophisticated user defense,” holding that a manufacturer of a dangerous product has no duty to warn a sophisticated user with equal knowledge of the product’s propensities.

Laverne Haase has silicosis, as a result of inhaling tiny silica particles while employed at the Neenah Foundry. While employed at Neenah, he wore a government-approved respirator.

Badger Mining Corporation provided silica sand to Neenah, and issued warnings of the potential dangers of inhaling silica. In 1992 and 1994, the National Institute for Occupation Safety and Health (NIOSH), upgraded its recommendations for respirators.

However, Badger did not change its warnings in light of the new recommendations.

Haase brought suit against Badger and several respirator manufacturers, asserting strict products liability and negligence.

At trial, evidence established that Neenah was a knowledgeable, technologically advanced leader in the foundry industry, and that it did not rely on Badger in selecting respirators, but on its own expertise.

The evidence also established that silica sand, in its natural form, is not dangerous, because the granules are too large to be inhaled. However, when broken into smaller particles during the foundry’s manufacturing processes, it becomes respirable and dangerous.

The evidence further established that the respirator worn by Haase leaks 50 percent of harmful silica particles, while a high-efficiency respirator available at the time would have leaked only 0.003 percent of particles.

Winnebago County Circuit Court Judge Bruce K. Schmidt directed verdict in favor of Badger, holding that Neenah was a sophisticated user aware of the risks of silicosis to its employees. Because Badger could legitimately expect Neenah, as a sophisticated user, to institute necessary safety precautions, Badger had no duty to warn Neenah of silica hazards, and thus, was not negligent.

Judge Schmidt also rejected Haase’s strict products liability claim, holding that, even if there was a duty to warn and Badger breached that duty, Haase failed to show causation. Haase appealed, but the court of appeals affirmed in a decision by Judge Richard S. Brown.

Sophisticated User Defense

The court adopted the sophisticated user defense, as set forth by the Eighth Circuit Court of Appeals in the case of Bergfeld v. Unimin Corp., 319 F.3d 350 (8th Cir. 2003), a case with identical facts. In that case, as well, a foundry worker with silicosis sued the supplier of silica sand, alleging failure to provide the foundry and the worker with adequate information about the risks o exposure to silica dust.

In Bergfeld, the court noted that Iowa (whose law it was applying) had adopted sec. 388 of the Restatement (Second) of Torts (1965), which provides: “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.”

The court in Bergfeld interpreted subsection (b) of the section to mean that a supplier has “no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product.” Bergfeld, 319 F.3d at 353.

The court in Bergfeld found that the foundry was a sophisticated user, with knowledge of the NIOSH recommendations, who simply chose not to adopt them, and thus the supplier was not negligent.

In the case at bar, the court of appeals concluded that the sophisticated user defense is valid in Wisconsin, as well.

The court noted that, in Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, par. 58, 236 Wis.2d 435, 613 N.W.2d 142, the Wisconsin Supreme Court adopted Section 388 of the Restatement.

The court further noted that, “the Seventh Circuit [actually, a federal district court in Wisconsin] has recognized that it is likely that the Wisconsin Supreme Court would adopt some form of the sophisticated user doctrine (citing Nigh v. Dow Chem. Co., 634 F.Supp. 1513, 1517 (W.D. Wis. 1986).”

In addition, the court noted that, in Shawver v. Roberts Corp., 90 Wis.2d 672, 686, 280 N.W.2d 226 (1979), the Wisconsin Supreme Court held that it is well established that, “there is no duty to warn members of a trade or profession about dangers generally known to the trade or profession.”

Finally, the court concluded that sound policy reasons support adoption of the defense. The court reasoned, “First, it places the duty to warn on the party arguably in the best position to ensure workplace safety, the purchaser-employer. Second, the burden falls upon the party in the best position to know of the product’s potential uses — thereby enabling that party to communicate safety information to the ultimate user based upon the specific use to which the product will be put.” Accordingly, the court adopted Bergfeld and its discussion of the sophisticated user defense.

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Applying the defense, the court concluded that Neenah was a sophisticated user. The court noted that Neenah had been in the foundry business for more than 120 years, and its managers have been members of the American Foundrymen’s Society (AFS). The AFS is a foundry trade organization that has been warning its members of the danger of silica exposure since at least 1937. The court also found that Neenah dedicated significant time and resources towards keeping abreast of industry safety standards.

Strict Liability

The court also rejected Haase’s strict liability claim, concluding that silica sand is not an unreasonably dangerous product. The evidence was undisputed that, as sold by Badger, the sand is too large to be respirable, and thus fails to meet the first element of a strict liability claim — “that the product was in a defective condition when it left the possession or control of the seller.”

Citing Comment c to Section 5 of Restatement (Third) of Torts (1998), the court held that a basic raw material cannot be defectively designed. Quoting the comment, the court iterated, “Inappropriate decisions regarding the use of such materials are not attributable to the supplier of the raw materials, but rather to the fabricator that puts them to improper use. … Accordingly, raw materials sellers are not subject to liability for harm caused by defective design of the end-product.”

The comment also applies the same considerations to failure-to-warn claims, stating, “to impose a duty to warn would require the seller to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control.”

Accordingly, the court affirmed the trial court’s
dismissal of the strict liability claim, as well as the negligence claim.

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David Ziemer can be reached by email.