Products Liability and the Chemical Manufacturer: Limitations on the Duty to Warn

Richard O. Faulk, Gardere Wynne Sewell LLP

Abstract

In the last decade, the principles of strict liability have been expanded to encompass virtually every type of injury caused by a manufacturer's product. Indeed, at least one state has effectively imposed absolute liability, under which a manufacturer is liable for all harm caused by its product, regardless of whether the injury was foreseeable at the time of manufacture. When the product is an identifiable object, such as an automobile or a household tool, conduct-related defenses, such as misuse, voluntary assumption of the risk, and contributory negligence, may apply. In the case of industrial chemicals, however, additional considerations are important. Although they are not "affirmative defenses," they may serve to excuse or qualify the duty to warn of product hazards. This article will examine two issues that, for the most part, are unique to chemical litigation. Each is derived from manufacturers' marketing procedures. "Sophisticated user" considerations apply when the chemical is marketed through knowledgeable intermediaries, or is sold directly to persons who are aware of the dangers associated with product use. "Bulk seller'' issues arise in cases in which the product is sold en masse through distribu-tors, who are then responsible for separating the chemical into containers for individual customers. In these instances, many courts have eliminated or qualified the manufacturer's duty to warn, citing the severe practical burdens inherent in identifying and communicating with remote users. Such limitations on the manufacturer's duty to warn are consistent with traditional strict liability goals and foster industrial safety concerns.