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Bond v. E.I. Du Pont De Nemours and Co.6/3/1993
e.
The parties do not address the issue of whether an "upstream" supplier can be held liable as a "seller" under § 13-21-402. Even if we were to assume that the statute can be so construed, plaintiff has failed to establish a genuine issue of material fact that would render DuPont liable as a "seller."
The statute deems a seller a manufacturer only to the extent that the seller has "actual knowledge of the defect." "In failure-to-warn cases it is the lack or insufficiency of a warning that makes a product both defective and unreasonably dangerous." Fibreboard Corp. v. Fenton, supra, 845 P.2d at 1173 (fn. 10). Thus, to hold a seller liable as a manufacturer under § 13-21-401(1), a plaintiff must establish that the seller not only had actual knowledge of the design and use of the final product, but also actual knowledge that the final product was unreasonably dangerous without a warning. This interpretation avoids placing an undue burden on suppliers of raw materials and manufacturers of component parts, particularly when, as here, the manufacturer of the final product is already subject to government regulation. See Childress v. Gresen Manufacturing Co. supra; Tidler v. Eli Lilly & Co., 271 U.S. App. D.C. 163, 851 F.2d 418 (D.C. Cir. 1988).
No facts have been presented from which a jury could conclude that DuPont had actual knowledge that the Implant was unreasonably dangerous. DuPont informed Vitek in a letter that it had conducted no tests to determine the suitability of its raw materials for use in the manner Vitek intended and that there was "a growing awareness of the lack of basic knowledge concerning the properties required of a synthetic material when it is used to replace bone, fascia, blood vessels or other body tissues." DuPont further stated it had "no knowledge of the suitability of 'Teflon' for [Vitek's proposed] medical use, and since the contemplated use is one that [Vitek] proposed and has not been recommended by [DuPont], it must be understood that [Vitek is] relying upon own medical judgment as to [Teflon's] safety and effectiveness." The letter concluded by conditioning the sale of Teflon to Vitek on its understanding that Vitek "assumes full responsibility for any consequences which may result directly or indirectly from [the use of Teflon]."
Dr. Homsy, Vitek's principal, responded in a letter that he was more knowledgeable in this specific area than DuPont and that DuPont's research in this area was "crucially incomplete." These assertions were based upon Dr. Homsy's many years of experience in the field and studies supposedly demonstrating that adverse reactions in some previous studies were caused by the "mechanical form" of the Teflon used rather than the chemical components of the Teflon itself. This letter also discounted, for the same reasons, other limited studies performed with artificial hips in humans. This correspondence is insufficient to create a genuine issue of fact as to whether DuPont had actual knowledge that the Implant was unreasonably dangerous to users or consumers. Plaintiffs presented no other evidence to establish that DuPont had actual knowledge that the Implant was unreasonably dangerous. Without such evidence, the trial court properly granted summary judgment on the claim that DuPont was a "seller" for purposes of § 13-21-402.
B. Negligence
Plaintiffs contend that DuPont knew or should have known that Teflon was unreasonably dangerous when used in human joints and therefore owed some form of duty to plaintiffs. We disagree.
Whether a defendant owes a duty of care to prevent injuries to other
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