Vol. 78, No. 3, March 2005

The Sophisticated User Doctrine Arrives

Sidebars:

• The Learned Intermediary Doctrine

by Kevin D. Trost

Last summer the Wisconsin Supreme Court tacitly gave manufacturers in Wisconsin another defense against lawsuits that allege a manufacturer negligently failed to provide adequate warnings with its products. In Haase v. Badger Mining Corp.,¹ the court let stand without comment a published court of appeals decision that borrowed the sophisticated user doctrine from Iowa law. The supreme court declined to address the lower court's importation of the sophisticated user doctrine, citing the appellant's failure to appeal the negligence claim that was dismissed under that doctrine. This silence has solidified the lower court's published ruling, and a subsequent court of appeals decision that invokes this ruling, and it has opened the door to the introduction of the sophisticated user doctrine in Wisconsin jurisprudence.

What is the Sophisticated User Doctrine?

The sophisticated user doctrine insulates a manufacturer from negligence claims that are based on the failure to warn. When the person or entity purchasing a product is as knowledgeable about the product's hazards as the manufacturer is, the manufacturer bears no duty to warn the purchaser of the hazards. In such a situation the purchaser is considered to be more knowledgeable about the end use of the product and is therefore in a better position than the manufacturer to provide meaningful warnings and instructions to anyone actually using the product.² For example, a foundry that purchases sand for use in its casting operations is in a better position than the sand manufacturer to communicate to foundry employees the dangers of the product and to instruct in proper protective measures.

This doctrine is rooted in Restatement (Second) of Torts § 388 (1965), a specific section that Wisconsin has adopted.³ This section of the Restatement states:

"Chattel Known to be Dangerous for Intended Use.

"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 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."

Subsection (b) has been widely interpreted to embody the sophisticated user doctrine and to establish that there is "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."⁴

The Emergence of the Doctrine in Wisconsin

The Wisconsin Court of Appeals first explicitly raised the doctrine and Restatement (Second) of Torts § 388(b) as its grounds for dismissing a plaintiff's claim in Haase v. Badger Mining Corp.⁵ Haase, a long-term employee of the Neenah Foundry, was diagnosed with silicosis. He then sued Badger Mining, the company that provided the foundry with silica sand.⁶ The foundry casting process pulverizes the silica sand, creating clouds of visible silica dust and silica particles so minute that they can become lodged in the lungs of exposed workers.⁷ The particles cannot be expunged from the lungs and can cause the progressive respiratory disease silicosis. Haase argued that the seller of the sand knew that foundries were one of the prime consumers of its sand, knew that silica sand broke down into minute respirable particles during the foundry casting process, and failed to warn workers how to adequately protect themselves from respiratory harm.⁸ Both the trial court and the court of appeals agreed with Badger Mining that the Neenah Foundry was as sophisticated and knowledgeable as Badger Mining about the dangers of silicosis and how to protect workers from respirable silica.⁹ As a result, the sophisticated user doctrine relieved Badger Mining of its duty to provide a specific warning to the foundry workers.

After Haase, the Wisconsin Court of Appeals quickly extended the reach of the sophisticated user doctrine beyond the employer/employee context. In Mohr v. St. Paul Fire & Marine Insurance Co., a high school swim team member was injured while diving from a diving board into a shallow portion of the high school's swimming pool.¹⁰ The swimmer sued the diving board manufacturer, claiming the manufacturer was negligent for failing to warn him of the dangers of locating the platform at a shallow depth.¹¹ The manufacturer contended it bore no duty to warn because the high school was a sophisticated user that belonged to the Wisconsin Interscholastic Athletic Association (WIAA), an organization that monitors national standards and provides its member high schools with information on the safe practice of sports activities.¹² The Wisconsin Court of Appeals found that the sophisticated user doctrine was applicable, but determined there was insufficient factual information about the extent of the manufacturer's knowledge about the high school to uphold the manufacturer's motion for summary judgment.¹³

Rather than exclusively examining the purchaser's level of knowledge, as the Haase court did, the Mohr court focused on the manufacturer's level of knowledge about the purchaser. Mohr explicitly stated that "the issue under Restatement (Second) of Torts § 388(b), correctly framed, is whether KDI had reason to believe that the high school had knowledge the platforms were likely to be dangerous if used in less than five feet of water."¹⁴ The court of appeals explained that while the purchaser's "actual knowledge is not dispositive under § 388(b)," it is "relevant if KDI knew of it or if the knowledge of this high school may be reasonably inferred to be the knowledge of high schools in general who purchase the product...."¹⁵

The Future Application of the Doctrine in Wisconsin

In Mohr, the Wisconsin Court of Appeals clearly centered the spotlight of the sophisticated user inquiry on the manufacturer's level of knowledge. What remains unclear is what level of knowledge a manufacturer must possess in order to be granted refuge under the doctrine. It is not known whether a manufacturer is protected if it knew that the purchaser's industry had knowledge about a hazard, or if a manufacturer must be aware that the specific purchaser knew of the hazard. How future courts interpret the level of knowledge required by manufacturers for protection under the doctrine will likely determine the potency of this defense in Wisconsin.

Future judicial consideration of at least two other issues also will affect the ultimate scope of this doctrine in Wisconsin. To date the Wisconsin Court of Appeals has only applied this doctrine to warnings claims rooted in negligence, failing to move further because the courts in Haase and Mohr only addressed claims rooted in negligence.¹⁶ Other states that have adopted the doctrine have blurred any distinction between a warnings claim based in negligence and a warnings claim based in strict liability.¹⁷ There is reason to believe that Wisconsin courts will apply the sophisticated user doctrine to both types of warnings claims. The court of appeals in Mohr explicitly refused to further expand the scope of this doctrine without guidance from the Wisconsin Supreme Court; however, it questioned outright whether there was any "practical significance" between a strict liability warnings claim and a warnings claim rooted in negligence.¹⁸ This stance is consistent with the court of appeals' previous statement that the proof requirements for warnings claims in negligence and in strict liability are essentially the same.¹⁹

Additionally, future courts may be asked to consider the policy argument that the sophisticated user doctrine burdens employees with bearing too great a share of the costs of their injuries. Plaintiffs' attorneys are concerned that adopting this doctrine will unjustly foreclose an avenue of recovery for innocently injured plaintiffs. The Wisconsin Court of Appeals explained that the adoption of the doctrine "places the duty to warn on the party arguably in the best position to ensure workplace safety, the purchaser-employer."²⁰ However, the doctrine effectively allows a manufacturer to transfer responsibility and liability to employers for warning workers who ultimately use a manufacturer's product. While in some states this shift of liability may not affect a worker's ability to pursue an action against the employer, Wisconsin has strict civil immunity for employers under its worker's compensation laws. If the sophisticated user doctrine allows the transfer of liability to the employer, and the employer is protected by worker's compensation immunity, the injured employee will be left with only the limited recovery available through worker's compensation.

National Trend

Over the last two decades a number of states have incorporated the sophisticated user doctrine into law as a protection for manufacturers, with few states rejecting the doctrine outright.²¹ Wisconsin is one of several states to recently consider adopting this doctrine. In the most recent decision in which a state court adopted the doctrine, the Texas Supreme Court set out a series of factors for its courts to consider when determining whether the manufacturer bears a duty to warn.²² The Minnesota Court of Appeals, relying on the same case that the Haase court relied on, invoked the doctrine to dismiss a claim against the same silica sand supplier that was sued in Haase.²³ However, the Minnesota Supreme Court recently overruled the decision, finding an insufficiency of evidence on key issues.²⁴ In doing so, the court distinguished between what it termed a sophisticated user defense and a sophisticated intermediary defense.²⁵ The court acknowledged that a manufacturer has no duty to warn under a sophisticated user defense when the actual user is as knowledgeable about the product and its dangers as is the manufacturer.²⁶ In contrast, the court refused to decide whether it would relieve a manufacturer of its duty when the product's purchaser (the sophisticated intermediary) is as knowledgeable as the manufacturer but the actual user may not be knowledgeable.²⁷

Conclusion

The adoption of the sophisticated user doctrine in Wisconsin is in itself a boon for manufacturers who are plagued with claims that they inadequately warned of the dangers posed by their products. The doctrine likely will be expanded to apply to strict liability claims. However, future interpretation of how this doctrine will be applied in Wisconsin may serve to limit its use. Under Mohr, whether the doctrine applies in a particular case turns on the manufacturer's level of knowledge about the purchaser and the purchaser's industry. Questions remain about how much a manufacturer must know before it is relieved of a responsibility to warn. Must the manufacturer know that the purchaser is aware of the general dangers posed by the product, or must the manufacturer know that the purchaser is aware of dangers associated with the purchaser's specific use of the product? Alternatively, perhaps it is sufficient that a manufacturer know that a purchaser is an active member of a knowledgeable professional or industry group. Courts' guidance on these issues will provide counsel with a better understanding of the potency of the sophisticated user defense and its effect on the landscape of failure to warn claims in Wisconsin.

Endnotes

¹2004 WI 97, 274 Wis. 2d 143, 682 N.W.2d 389, affirming 2003 WI App 192, 266 Wis. 2d 970, 669 N.W.2d 737 (adopting and applying rationale of Bergfeld v. Unimin Corp., 319 F.3d 850 (8th Cir. 2003)).

²Haase, 2003 WI App 192, ¶ 21, 266 Wis. 2d 970.

³Strasser v. Transtech Mobile Fleet Serv. Inc., 2000 WI 87, ¶ 58, 236 Wis. 2d 435, 613 N.W.2d 142.

⁴Bergfeld v. Unimin Corp., 319 F.3d 350, 353 (8th Cir. 2003).

⁵Haase, 2003 WI App 192, ¶ 21, 266 Wis. 2d 970. Wisconsin courts have previously recognized that "there is no duty to warn members of a trade or profession about dangers generally known to the trade or profession." Shawver v. Roberts Corp., 90 Wis. 2d 672, 686, 280 N.W.2d 226 (1979). However, the Shawver court did not refer to this principle as the sophisticated user doctrine.

⁶Haase, 2003 WI App 192, ¶ 1, 266 Wis. 2d 970.

⁷Id. ¶ 3.

⁸Id. ¶ 1.

⁹Id.

¹⁰Mohr v. St. Paul Fire & Marine Ins. Co., 2004 WI App 5, 269 Wis. 2d 302, 674 N.W.2d 576.

¹¹Id. ¶ 6.

¹²Id. ¶ 14.

¹³Id. ¶ 21.

¹⁴Id. ¶ 20.

¹⁵Id.

¹⁶Id. ¶ 34.

¹⁷See, e.g., Phillips v. A.P. Green Refractories Co., 630 A.2d 874 (Pa. Super. Ct. 1993), aff'd sub nom. Phillips v. A-Best Prods. Co., 665 A.2d 1167 (Pa. 1994); Donahue v. Phillips Petroleum Co., 866 F.2d 1008 (8th Cir. 1989) (applying Missouri law).

¹⁸Mohr, 2004 WI App 5, ¶ 32 n.10, 269 Wis. 2d 302; see also Nigh v. Dow Chemical Co., 634 F. Supp. 1513, 1517 (W.D. Wis. 1986) ("The Court will leave the task of distinguishing between negligence and strict liability in the duty to warn to those who count angels on the heads of pins.").

¹⁹Mohr, 2004 WI App 5, ¶ 32 n.10, 269 Wis. 2d 302. (citing Tanner v. Shoupe, 228 Wis. 2d 357, 365 n.3, 596 N.W.2d 805 (Ct. App. 1999); Krueger v. Tappan Co., 104 Wis. 2d 199, 207 n.3, 311 N.W.2d 219 (Ct. App. 1981)).

²⁰Haase, 2003 WI App 192, ¶ 21, 266 Wis. 2d 970; contrast with Gray v. Badger Mining Corp., 664 N.W.2d 881, 885 (Minn. Ct. App. 2003) ("in the industrial setting ... the employer is not motivated to warn employees because the employer's liability is limited by the worker's compensation laws."), rev'd, 676 N.W.2d 268 (Minn. 2004), and Humble Sand & Gravel Inc. v. Gomez, 146 S.W.3d 170, 184-85 (Tex. 2004) ("disregard [by employers] of the risks to their employees of inhaling silica dust was not for want of additional information that flint suppliers should have furnished, but for want of care.").

²¹See Phillips v. A.P. Green Refractories Co., 630 A.2d 874 (Pa. Super. Ct. 1993), aff'd, 665 A.2d 1167 (Pa. 1994); Jodway v. Kennametal Inc., 525 N.W.2d 883 (Mich. Ct. App. 1994); Groll v. Shell Oil Co., 196 Cal. Rptr. 2d 52, 54 (Cal. Ct. App. 1983); Smith v. Walter C. Best Inc., 927 F.2d 736, 741 (3d Cir. 1990); Goodbar v. Whitehead Bros., 591 F. Supp. 552, 561 (W.D. Va. 1984), aff'd sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985); Damond v. Avondale Indus. Inc., 718 So. 2d 551, (La. Ct. App. 1998), writ denied, 735 So. 2d 637 (La. Ct. App. 1999). But see Sharp v. Wyatt Inc., 627 A.2d 1347 (Conn. App. Ct. 1993) (sophisticated user doctrine is not affirmative defense but rather part of user awareness issue to be considered by trier of fact).

²²Humble Sand & Gravel Inc., 146 S.W.3d at 192-94. Those factors, applied to a situation involving abrasive blasting, are: 1) the likelihood of serious injury from a supplier's failure to warn; 2) the burden on a supplier of giving a warning; 3) the feasibility and effectiveness of a supplier's warning; 4) the reliability of operators to warn their own employees; 5) the existence and efficacy of other protections; and 6) the social utility of requiring, or not requiring, suppliers to warn. Id.

²³Gray, 664 N.W.2d at 887.

²⁴Gray v. Badger Mining Corp., 676 N.W.2d 268, 277 (Minn. 2004).

²⁵Id. at 276-77.

²⁶Id.

²⁷Id. at 277.

²⁸See Moore ex. rel. Moore v. Memorial Hosp. of Gulfport, 825 So. 2d 658, 664-65 (Miss. 2002) (listing states that have adopted learned intermediary doctrine). See also Kevin L. Colbert & John Gray, Recent Developments in Toxic Tort and Environmental Litigation, 38 Tort Trial & Ins. Prac. L.J. 691 (Winter 2003).

²⁹Vitanza v. The Upjohn Co., 778 A.2d 829, 844-47 (Conn. 2001).

³⁰Kurer v. Parke, Davis & Co., 2004 WI App 74, 274 Wis. 2d 390, 679 N.W.2d 867.

³¹Id. ¶ 31 n.7.

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