Anderson v. Owens-Illinois, Inc.

• Decision Date: 11 April 1986
• Docket Number: No. 85-1622,INC,OWENS-ILLINOI,85-1622
• Citation: 799 F.2d 1
• Parties: Prod.Liab.Rep.(CCH)P 11,182 Albert C. ANDERSON and Olive Anderson, Plaintiffs, Appellants, v., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

799 F.2d 1

Prod.Liab.Rep.(CCH)P 11,182

Albert C. ANDERSON and Olive Anderson, Plaintiffs, Appellants, v. OWENS-ILLINOIS, INC., et al., Defendants, Appellees.

No. 85-1622.

United States Court of Appeals First Circuit.

Heard April 11, 1986.

Decided Aug. 25, 1986.

John T. Barrett with whom Thornton & Early, Boston, Mass., was on brief, for plaintiffs, appellants.

Lawrence G. Cetrulo with whom Burns & Levinson, Boston, Mass., was on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

Albert Anderson, plaintiff appellant, a former boilermaker and shipyard worker allegedly suffering from asbestosis and a preexisting lung condition aggravated by exposure to asbestos, sued Owens-Illinois, Inc. and four other manufacturers of asbestos for negligence and for breach of warranty, based on their failure to warn of the dangers of asbestos exposure. Pretrial, plaintiff asked the court to strike defendants' "state of the art" defense, and to exclude state of the art evidence for purposes of the warranty claim. ¹ The court refused. After a trial at which both sides introduced evidence on the state of the art, the court instructed the jury on its relevance and put the case to the jury on special questions. The jury returned verdicts for defendants on all claims. Plaintiff, alleging, further, various errors in the court's charge, appeals. We affirm.

Plaintiff's objections relate principally to the state of the art defense. Relying on language in Hayes v. Ariens, 391 Mass. 407, 462 N.E.2d 273 (1984), he had asked the court to instruct the jury,

... the adequacy of a warning is measured by the warning that would be given at the time of sale by an ordinarily prudent vendor who, at that time, is fully aware of the risks presented by the product. A defendant vendor is held to that standard regardless of the knowledge of risks that he actually had or reasonably should have had when the sale took place. The vendor is presumed to have been fully informed at the time of the sale of all risks. The state of the art is irrelevant, as is the culpability of the defendant....

Instead, the court charged,

the duty to warn extends only to such dangers--to such dangers or defects about which the manufacturer either actually knew or about which it reasonably should have known. Now should have known here means that a manufacturer is held to that level of knowledge which the experts in the particular industry had or in view of the state of medical and scientific knowledge in general should have had at any particular point in time.

Plaintiff duly excepted to the charge, both as improperly allowing the jury to consider state of the art evidence on the warranty claim and as inadequately instructing on the meaning of the term "state of the art."

We start with plaintiff's first and, we think, most important objection. The requested charge, and, equally, the basis for the pretrial motion to strike the state of the art defense, is a virtually verbatim quote from Hayes v. Ariens, ante, 391 Mass. at 413, 462 N.E.2d 273. Plaintiff argues forcefully that the sentence, "The state of the art is irrelevant, as is the culpability of the defendant," is dispositive. The district court, however, found this statement to be dictum, and therefore not necessarily controlling. Accordingly, it considered the law of Massachusetts as a whole, and concluded that, notwithstanding the Hayes dictum, Massachusetts law requires a seller to warn only of reasonably foreseeable or scientifically discoverable dangers. We agree in all respects with the court's resolution.

Massachusetts does not recognize the doctrine of strict liability in tort enunciated in section 402A of the Restatement (Second) of Torts. Swartz v. General Motors Corp., 375 Mass. 628, 630, 378 N.E.2d 61 (1978). It does, however, recognize the doctrine of implied warranty, Mass.Gen.Laws c. 106, Sec. 2-314, which "[t]he Legislature has made ... congruent in nearly all respects with the principles expressed in [section 402A]." Back v. Wickes, 375 Mass. 633, 640, 378 N.E.2d 964 (1978). The Massachusetts courts, therefore, in determining the scope of warranty liability, have looked both to section 402A, e.g., Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353, 446 N.E.2d 1033 (1983), and to "the strict liability cases of other jurisdictions," Back, ante, 375 Mass. at 640, 378 N.E.2d 964. Thus, our inquiry begins with Massachusetts warranty cases, but turns, where necessary, to the Restatement and cases from jurisdictions that recognize it.

Before considering the legal issue, we note the scope of plaintiff's contention. The state of the art defense required that even scientific experts be unaware of the danger, and thus of the risk of the injury which plaintiff ultimately suffered. Plaintiff is not claiming that the dangers inherent in defendants' product--asbestos--were socially unacceptable, and that it should not have been put on the market at all, but, only, that when placed it should have been accompanied by a warning, even though, on defendants' evidence, which the jury, on the basis of the charge accepted, it was impossible for anyone to say of what the warning should have consisted.

With the issue thus defined, we start with the leading Massachusetts case of Back v. Wickes, ante, from which we have already quoted. This was not a warning case. There a motor home accidentally struck a cable fence at the edge of the road, causing the fuel tank to shear, inflaming the vehicle. Plaintiff contended the tank should have been within the frame, and that, if less exposed, it would not have been injured. Defendant asserted the design met highest industry practice, and that the occurrence was not foreseeable. It also claimed that there was misuse. On the warranty count the court had allowed evidence as to industry practice, and instructed the jury that if it agreed with defendant as to misuse, its verdict should be for the defendant. The jury found for the defendant. In reversing, the Supreme Judicial Court ruled that, so far as warranty was concerned, striking a side-rail was within the realm of possibilities, and that, from the standpoint of misuse, the test was the product, not the defendant's anticipation. At the same time, the court held that there was no error in permitting defendant to show the standards of the trade, even a lower standard than state of the art, in determining whether the motor home was "unreasonably dangerous."

Thereafter, in Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 446 N.E.2d 1033 (1983), also not a warning case, the court dealt with whether the plaintiff's contributory negligence was a defense in an action for breach of warranty of an unreasonably dangerous object, there a defective tire, or a defective trailer rig. In holding contributory negligence was not a defense, the court, as it did in Back, continued to note its adherence to the Restatement and the interpretations of other jurisdictions.

Hayes v. Ariens, ante, was a failure to warn case. It arose in an unusual fashion: whether special jury findings with respect to negligence and to warranty were inconsistent. There the defendant had sold a snow blower that clogged with heavy snow. The plaintiff reached into the discharge chute, without stopping the motor, and injured his fingers. The machine bore a notice: "Caution: Stop engine before removing obstruction from blower or rake." The plaintiff went to the jury on two theories; that the warning was inadequate, and that the machine was improperly designed because it clogged and lacked a "deadman's clutch." The jury found plaintiff and defendant both negligent, (with plaintiff 60% negligent, so that he could not recover under Massachusetts negligence law) but that defendant did not breach its warranty of merchantability. In reversing, the Massachusetts court held that if defendant was negligent, whether because of improper design or inadequate warning, it necessarily breached its warranty.

The court thereafter engaged in a discussion as to a manufacturer not being relieved of liability for an unreasonably dangerous article even if he had taken all reasonable precautions, for which it cited Back and Correia. However, the dangers there were obvious, a far different situation from the case at bar where, it has been found, even experts did not know that dangers existed, let alone that the product was unreasonably dangerous. Under these circumstances we believe the district court was correct in saying that with respect to such facts the court's broad language was not controlling as "considered dicta." Michelin Tires (Canada) Ltd. v. First National Bank of Boston, 666 F.2d 673, 682 (1st Cir.1981); cf. In re Air Crash Disaster Near Chicago, 701 F.2d 1189, 1196 (7th Cir.1983), cert. denied, 464 U.S. 866, 104 S.Ct. 204, 78 L.Ed.2d 178. Equally uncontrolling was the court's citing plaintiff's case of Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 447 A.2d 539 (1982), a case which did present our facts. Rather, the question is, would the Massachusetts court follow that dictum today if faced with the very different facts here presented? We believe it would not, for several reasons.

We commence by noting that, subsequent to Hayes, the court used far less embracing language. In MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475 N.E.2d 65 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985), a case involving "the pill," and where plaintiff had suffered a "stroke," and claimed negligence and breach of warranty, the case went to the jury on what the court described as "a single claim of failure to warn." The court referred to no absolute duty, but stated the "duty is to provide to the consumer ... reasonable notice of the nature, gravity and likelihood of known or knowable side effects." 394 Mass. at 139, 475 N.E.2d 65. But even more...