Toxic and hazardous substances litigation.

• Author: Cohen, Roy Alan
• Position: The latest developments of interest to defense counsel

THE SOPHISTICATED purchaser and ingredient supplier defenses are alive and well, at least in certain jurisdictions.

Michigan law, as enunciated in Newson v. Monsanto Co.,(15) embodies a very favorable version of the sophisticated purchaser defense. The plaintiffs were former Ford plant workers who sought damages for respiratory diseases allegedly caused by long-term exposure to fumes emitted when sheets of polyvinyl butyryl (PVB) were heated to form windshields. They sued the manufacturers of PVB, a material Ford purchased in bulk, contending that the PVB supplier defendants failed to warn Ford prior to 1986 of the hazards associated with heating the material.

The material manufacturers had supplied Ford with material safety data sheets (MSDSs), which listed the chemical composition of PVB, physical properties, potential hazards and recommendations for industrial hygiene, along with other information. No MSDS prior to 1986 provided Ford with specific warnings on any danger concerning exposure to PVB fumes when heated.

The federal district court in Newson acknowledged that prior to 1986, neither the defendants' MSDSs nor any other communications to Ford explicitly warned Ford of the dangers of heating PVB. It refused, however, to impose an absolute duty to warn, stating, "Modern life [would be] ... intolerable unless one were permitted to rely to a certain extent on others' doing what they normally do, particularly if it is their duty to do so," citing Section 388 of the Restatement (Second) of Torts. The court concluded that despite failure to warn Ford explicitly of the dangers of heating PVB, Ford was a sophisticated user of PVB well before 1986 because adequate information about the health hazards of PVB decomposition products existed in the public domain, and Ford was in fact actually aware of such hazards.

The court stated that a "purchaser/employer knows or should know of a product's dangers where either (i) the supplier has provided an adequate explicit warning ... or (ii) where the information on the product's dangers is available in the public domain."

Because Ford was a sophisticated user of PVB, had the resources available to discover information in the public domain on the product and then to take adequate precautions, the court granted summary judgment in favor of the defense.

"Available in the public domain"

The importance of this decision is that, in the case of a sophisticated user, information need only be "available in the...