Billiar v. Minnesota Mining and Mfg. Co.

• Decision Date: 28 May 1980
• Docket Number: D,479,Nos. 277,MENNEN-GREATBATCH,s. 277
• Parties: Thelma BILLIAR, Plaintiff-Appellee, v. MINNESOTA MINING AND MANUFACTURING COMPANY, Defendant/Third Party Plaintiff- Appellant, v.ELECTRONICS, Third Party Defendant-Appellant. ockets 79-7385, 79-7503.
• Court: U.S. Court of Appeals — Second Circuit

Page 240

623 F.2d 240

Thelma BILLIAR, Plaintiff-Appellee, v. MINNESOTA MINING AND MANUFACTURING COMPANY, Defendant/Third

Party Plaintiff- Appellant, v. MENNEN-GREATBATCH ELECTRONICS, Third Party Defendant-Appellant.

Nos. 277, 479, Dockets 79-7385, 79-7503.

United States Court of Appeals Second Circuit.

Argued Dec. 13, 1979.

Decided May 28, 1980.

Howard V. Burke, Buffalo, N. Y. (Canale, Madden & Burke, Buffalo, N. Y.), for plaintiff-appellee.

Daniel T. Roach, Buffalo, N. Y. (Brown, Maloney, Gallup, Roach & Busteed, P. C., Buffalo, N. Y.), for defendant/third party plaintiff-appellant.

Gerald Grace, Jr., Buffalo, N. Y. (Cox, Barrell, Walsh, Roberts & Grace, Buffalo, N. Y.), for third party defendant-appellant.

Before LUMBARD and VAN GRAAFEILAND, Circuit Judges, and CARTER, District Judge. ^*

ROBERT L. CARTER, District Judge:

Plaintiff-appellee Thelma Billiar was employed by third-party defendant-appellant Mennen-Greatbatch Electronics ("Mennen") as an assembler of electrodes for use in cardiac pacemakers. One step in the assembly process required plaintiff to prepare an electrical resin by mixing two liquid components manufactured by defendant-appellant Minnesota Mining and Manufacturing Company ("3M") and distributed under the name Scotchcast Resin No. 5 ("Scotchcast").

The Scotchcast components were delivered to appellee's work station in containers marked A and B. According to her supervisor's instructions, Billiar would mix two parts A to one part B with a wooden tongue depressor in a small paper muffin cup, and place a drop of the mixture into each electrode. Temperature in the workroom was kept very warm.

The Scotchcast B container bore a label stating:

CAUTION: Vapor harmful. Product contains toxic and caustic components. Avoid contact with skin and eyes, preferably by use of protective clothing. Use in well ventilated areas. Avoid splashing and prolonged and repeated breathing of vapors. Instructions in case of exposure: Contact with skin wash with soap and water immediately after exposure. Contact with eyes flush eyes with plenty of water and get prompt medical attention.

Component A of the Scotchcast mixture was bisphenola type ephicalorhydin resin. Part B, the hardening agent, contained 80% aroclor 1254 and 20% diethylenetriamine. Diethylenetriamine can cause severe chemical burns to skin and eyes. 3M's toxicology department possessed a Chemical Safety data sheet on diethylenetriamine, published by the Manufacturing Chemists Association, which recommended that persons using the chemical wear safety goggles and face shields and that containers of the chemical bear a label containing the words "Danger$ Causes Severe Eye and Skin Burns."

On December 30, 1969, while plaintiff was mixing a batch of Scotchcast, some of the contents of the paper cup spilled onto her hand. Plaintiff felt the moisture and wiped her hand on her smock. A few minutes later, she accidentally brushed some perspiration from the right side of her face with her hand. Feeling a tingling and slightly burning sensation on her face, plaintiff notified a supervisor who set up washing apparatus while plaintiff continued to work. With the supervisor's help, plaintiff washed her face with soap and water for about 15 minutes. Nevertheless, plaintiff suffered a severe chemical burn in the area of her right eye. After patch testing, a dermatologist identified the causative agent as Scotchcast, component B. The burn required the attention of many physicians over several years, as well as skin grafts. Plaintiff was left with a permanent facial scar, and still feels some pain in very cold and windy weather.

Plaintiff commenced this action in the district court of the Western District of New York against 3M for its negligent failure to warn her adequately of the dangers of Scotchcast. 3M impleaded Mennen on a theory of failure to provide a safe place to work, alleging that Mennen had failed to provide protective clothing, to warn plaintiff, or to instruct her in the safe use of Scotchcast.

The trial court denied defendants' motions for a directed verdict at the close of plaintiff's case, and for judgment notwithstanding the verdict after the jury awarded damages to plaintiff in the sum of $150,000.00. Both 3M and Mennen appeal the denial of these motions. In addition, third-party defendant-appellant Mennen appeals the jury's apportionment of 68% of the liability to it. We affirm.

In deciding whether the trial court erred in submitting the case to the jury, we must apply the substantive law of New York in this diversity case. Although the relevant case law is rather sparse, we understand it as requiring that, on these facts, questions of defendant 3M's duty to warn and of the adequacy of the warnings be determined by the trier of fact.

I

It is well settled that New York law holds the supplier of a product which it knows or should know is dangerous if used in the usual and expected manner to a duty adequately to warn users of the product of the danger unless the danger is obvious or well known. Haberly v. Reardon, 319 S.W.2d 859, 862-63 (Mo.1958) (applying New York law); Rosebrock v. General Electric Co., 236 N.Y. 227, 240-41, 140 N.E. 571, 575 (1923); Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 114-15, 150 N.Y.S.2d 792, 797, 134 N.E.2d 63, 66 (1956); Young v. Elmira Transit Mix, Inc., 52 A.D.2d 202, 205, 383 N.Y.S.2d 729, 731 (4th Dep't 1976).

When the user is fully aware of the nature of the product and its dangers, however, the supplier cannot be held liable for failure to warn him. Rosebrock v. General Electric Co., 236 N.Y. at 236, 140 N.E. at 573; Howard Stores, Inc. v. Pope, 1 N.Y.2d at 115, 150 N.Y.S.2d at 797, 134 N.E.2d at 66; McDaniel v. Williams, 23 A.D.2d 729, 257 N.Y.S.2d 702, 702-03 (1st Dep't 1965). The rationale for this "knowledgeable user" exception is that knowledge of the danger is equivalent to prior notice; no one needs notice of that which he already knows. Borowicz v. Chicago Mastic Co., 367 F.2d 751, 758 (7th Cir. 1966) (applying New York law); McDaniel v. Williams, 23 A.D.2d at 729, 257 N.Y.S.2d at 702-03.

Appellants claim that plaintiff was a knowledgeable user; because she was fully aware of the danger of Scotchcast, 3M had no duty to warn her. Therefore, they argue, the question of the adequacy of the warning provided on the Scotchcast B container should never have been submitted to the jury.

A.

We note initially that it is not at all clear whether New York courts would consider Billiar to be the kind of user who could fall within the knowledgeable user exception. The exception was first articulated in a case where the users were expert electricians, professionally experienced with the product in question. Rosebrock v. General Electric Co., 236 N.Y. at 237-38, 140 N.E. at 574. Subsequently, the exception has been applied only to professionals and skilled tradespeople. E. g., Howard Stores v. Pope, 1 N.Y.2d 110, 150 N.Y.S.2d 792, 134 N.E.2d 63 (floor finisher); McDaniel v. Williams, 23 A.D.2d 729, 257 N.Y.S.2d 702 (experienced beautician); Borowicz v. Chicago Mastic Co., 367 F.2d 751 (professional carpenter). Indeed, several courts have described the exception as applicable to members of a trade or profession. See Littlehale v. E. I. du Pont de Nemours & Co., 268 F.Supp. 791, 798 (S.D.N.Y.1966) (Tenney, J.); Ikerd v. Lapworth, 435 F.2d 197, 202 (7th Cir. 1970), quoting Thrash v. U-Drive-It Co., 93 Ohio App. 388, 113 N.E.2d 650, 656 (1951).

Plaintiff-appellee can hardly be deemed a professional or skilled artisan; she was an unskilled worker who had worked in Mennen's electrode department for only ten months. The knowledgeable user exception has not been applied to lay persons, even those with some familiarity with the product. See, e. g., Young v. Elmira Transit Mix, Inc., 52 A.D.2d at 204, 383 N.Y.S.2d at 730 (do-it-yourself builder with some experience with cement); Haberly v. Reardon Co., 319 S.W.2d at 867-68 (do-it-yourself painter with knowledge that paint could injure eyes).

B.

Assuming that appellee could fall within the knowledgeable user exception, however, we must decide whether the district court should have held her knowledgeable as a matter of law, or whether the question of her knowledge was properly submitted to the jury as a question of fact.

To support their contention that plaintiff should have been deemed a knowing user as a matter of law, appellants rely on plaintiff's testimony that she had read the warning label on the Scotchcast container and that her supervisor had warned her not to get the product on her skin, as well as on evidence that plaintiff had experienced the toxic effects of the resin on prior occasions and had received medical attention for it.

Appellants apparently argue that as long as Billiar knew the product was dangerous, she was sufficiently knowledgeable to fall within the exception; the fact that she was ignorant of the severity of the danger is immaterial. As we read the cases, appellants are mistaken.

Plaintiff argues that the Scotchcast label did not inform her of the severity of the injury she could receive from skin contact with Scotchcast. The evidence showed that she had never been similarly injured before, and that her prior reaction was limited to tiny blisters on her fingers, which her doctor had treated only with a glycerine salve. Thus while she testified that she knew the product was harmful to skin, she also stated that she did not know how extremely harmful it could be.

The extent of plaintiff's knowledge of the danger was thus in dispute. In such a case, New York courts have left the question whether there was a duty to warn to the trier of fact. See Rosebrock v. General Electric Co., 236 N.Y. at 237, 140 N.E. at 574; Young v. Elmira Transit Mix, Inc., 52 A.D.2d at 205, 383 N.Y.S.2d at 731; see also Haberly v. Reardon Co., 319 S.W.2d at 867-68 (applying New York law).

In Haberly v. Reardon Co., 319 S.W.2d 859 (Mo.1958) (applying New...