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Eagle-Picher Industries Inc. v. Balbos8/29/1990
cated user/bulk supplier defense with regard to both negligent and strict liability failure to warn claims, given that the defense logically follows from section 388. Id. at 1059. The court restated the "essential premise of this defense: There is no duty on product suppliers to warn ultimate users (whether employees or customers) of product-related hazards in products supplied in bulk to a knowledgeable user. The corollary . . . is that this is is especially the case when the knowledgeable industrial purchaser is the
only one in a position to communicate an effective warning to the ultimate user." Id. at 1061. The court granted the suppliers summary judgment based on the sophisticated user/bulk supplier defense on the basis of its findings that:
Eastman and Union Carbide supplied in bulk, via railroad tank cars and tank trucks, vast amounts of liquid chemicals which were subsequently reprocessed and repackaged by Dupont . . . rendering these bulk suppliers unable . . . to communicate any warning to the ultimate purchasers. [And these suppliers] reasonably relied on the knowledgeable industrial purchaser DuPont to warn customers . . . .
Id. at 1062.
In the instant case, the trial court (Judge Marshall Levin serving as the motions judge), in granting the plaintiffs' motion to exclude evidence of the sophisticated purchaser defense, correctly distinguished these cases from the instant case. The former cases dealt with suppliers of products delivered in bulk via railroad cars where the supplier as a practical matter had no opportunity to effectively warn the ultimate user. In Goodbar, the silica-containing sand was unloaded from the railroad cars at the Foundry onto conveyer belts and taken to storage silos. Likewise in Higgins, the chemicals were delivered in tank cars, unloaded, and mixed with many other ingredients to make the paint product which was then packaged, labelled and sold by the manufacturer to the consumer. In the case sub judice, however, the asbestos-containing products were delivered by the appellants to Bethlehem Steel in their original containers, i.e., bags, cartons, cans, and other packages and placed in warehouses. The evidence presented at trial indicated that the quantity required for a job determined the form in which the product was delivered to the work site. In any case, the storage room and warehouse employees handled the original containers and on occasion so did other workers.
The appellees argue that Oman v. Johns-Manville Corp., 764 F.2d 224(4th Cir. 1985), cert. denied sub nom. Oman v. H.K. Parker, #63 474 U.S. 970, 106 S.Ct. 351, 88 L.Ed.2d 319(1985), another asbestos case, is apposite. Judge Levin found Oman persuasive and so do we. In Oman the plaintiffs were shipyard workers who claimed to have contracted asbestosis after being exposed to asbestos fibers in the course of their employment for Newport News Shipbuilding and Drydock Company. Id. at 226. The Court, in determining whether the district court "should have charged the jury that the manufacturer's duty to warn the ultimate users . . . is satisfied if a sophisticated employer is aware of the dangers involved in the use of the product," discussed the various factors listed in Restatement (Second) of Torts § 388 comment n. Oman, 764 F.2d at 233.
Comment n to section 388 provides six factors for the court to balance in determining what precautions a manufacturer or supplier of a product must take to satisfy the requirement of reasonable care stated in § 388(c):
(1) the dangerous condition of the product
(2) the purpose for which the product is used;
(3) the form of any warnings given;
(4) t
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