Court adopts sophisticated user defense.

Byline: David Ziemer

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...