Forest v. EI DuPont de Nemours and Co.

• Decision Date: 15 April 1992
• Docket Number: No. CV-N-90-467-ECR (PHA).,CV-N-90-467-ECR (PHA).
• Citation: 791 F. Supp. 1460
• Parties: Patricia Lynn Gaily FOREST, Plaintiff, v. E.I. DuPONT de NEMOURS, AND COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Nevada

791 F. Supp. 1460

Patricia Lynn Gaily FOREST, Plaintiff, v. E.I. DuPONT de NEMOURS, AND COMPANY, et al., Defendants.

No. CV-N-90-467-ECR (PHA).

United States District Court, D. Nevada.

April 15, 1992.

Blaine E. Cartlidge, Gordon & Silver, Ltd. by Don Springmeyer and Jeffrey A. Dickerson, Reno, Nev., for plaintiff.

Kathryn C. Grogman, Dickson, Carlson & Campillo, Santa Monica, Cal., and Dan C. Bowen, Lionel Sawyer & Collins, Reno, Nev., for defendants.

ORDER

EDWARD C. REED, Jr., Chief Judge.

Defendant E.I. DuPont de Nemours ("DuPont") filed its motion for full summary judgment on December 10, 1991 (document # 28).¹ Plaintiff's opposition (document # 35) and Defendant's reply (document # 38) have also been filed and considered. The court heard oral arguments on the motion on April 13, 1992. The motion is now ripe for the court's decision.

BACKGROUND

Although the Plaintiff alleges six separate claims in her complaint, this is essentially a products liability case. Plaintiff had oral surgery for the purpose of correcting defects in her temporomandibular joint ("TMJ"). As part of this procedure, her surgeon placed in her jaw a "Proplast TMJ Implant" manufactured by Vitek, Inc. ("Vitek"). Proplast is a registered tradename of Vitek for a porous compound made from polytetrafluoroethylene ("PTFE") resins and fibers, along with other ingredients, through a Vitek-patented process. Vitek used Proplast in many different types of medical devices, including the TMJ implant at issue here. Although the Proplast TMJ implant was approved for sale by the United States Food and Drug Administration ("FDA"), it allegedly caused severe personal injury to Plaintiff who continues to undergo treatment for her TMJ condition.

DuPont did not manufacture the Proplast TMJ implant. Instead, DuPont provided the raw PTFE that was used in the Proplast fabrication process. According to DuPont, PTFE is a plastic raw material made by many raw material manufacturers and used safely in a variety of industrial applications. DuPont provided bulk PTFE in the form of small granules and in the form of "flock" (short fibers). According to the Proplast patent, PTFE in its two raw forms is mixed with carbon fibers and salt in a seven-step manufacturing process which includes mixing, filtration, compression, rolling, sintering, leaching, and drying. The result is Proplast, a porous, fibrous material that fosters body tissue in-growth.

DuPont did not participate in the development, testing, and manufacture of the Proplast TMJ implants.² In fact, DuPont claims that it told Vitek that DuPont PTFE was not made for medical use and that any person who wished to use DuPont polymers for any medical or surgical purpose should rely on their own medical and legal judgment. DuPont claims that it provided this "disclaimer" to all medical companies as standard procedure, not just to Vitek. DuPont argues, therefore, that its only role in the development and use of Vitek's Proplast TMJ implants was as a bulk chemical supplier. Based upon authorities from other jurisdictions, DuPont claims that under the "bulk supplier doctrine" it owes no duty to warn the ultimate consumer of known dangers associated with its bulk product or its vendee's product. DuPont argues that only Vitek had a duty to warn the Plaintiff and that DuPont is entitled to summary judgment on the duty to warn issue as a matter of law.³

Plaintiff argues in opposition that, with respect to the negligence claim,

as a matter of law DuPONT owed these duties to exercise reasonable care: in manufacture, in design, in instruction, in warning, in research and in testing. Paragraph 14 of the Amended Complaints alleges negligent design, negligent failure to warn and instruct, and negligent research and testing. DuPONT's Motion addresses the duty to warn only. It does not address these other listed alleged duties and their breach.

Plaintiff also argues that the duty to warn issue is irrelevant under a proper strict liability analysis. The opposition brief addresses DuPont's brief warranty and misrepresentation arguments as well.

DISCUSSION

I. Products Liability Law

Before the court may pass upon the specific factual issues now pending on summary judgment, it must briefly consider the relevant legal doctrines implicated by this case. Wherever Nevada products liability law is incomplete, the court must put itself in the position of the Nevada Supreme Court and endeavor to decide each state law issue as would the state's highest court. With this in mind, the court now considers the threshold legal questions.⁴

First, the court must decide whether the "duty to warn" issue is relevant only to the negligent failure to warn claim, or whether is it also relevant to the court's analysis of the strict liability claim as well. In other words, there may not be any appreciable difference between an action for negligent failure to warn and an action in strict products liability for a defect due to insufficient warning.

Second, the court must determine whether Nevada would recognize the so-called "bulk supplier" defense which allows a provider of raw materials in certain instances to rely on its vendee/intermediary to provide the necessary safety warnings to the ultimate user of the product made by the vendee from the supplier's bulk materials. If Nevada recognizes the doctrine and it applies to DuPont, DuPont would have had no legal duty in Nevada to provide warnings to the Plaintiff or any other user of the Proplast TMJ implants.

Finally, the court must consider whether there exist other theories under which DuPont could be held liable in negligence or strict liability apart from a failure to warn. Plaintiff's complaint alleges that DuPont breached other duties besides its duty to warn and that the PTFE was defective in ways other than due to inadequate warning.

A. Is there a practical difference between negligence and strict liability in the failure to warn area?

Many courts and commentators argue that there is no practical difference between an action in negligence for breach of one's duty to warn and an action in strict liability for a product defect due to inadequate warning or labeling. See Sara Lee Corp. v. Homasote Co., 719 F.Supp. 417, 420 (D.Md.1989); Higgins v. E.I. DuPont de Nemours, Inc., 671 F.Supp. 1055, 1059-60 (D.Md.1987); Nigh v. Dow Chemical Co., 634 F.Supp. 1513, 1517 (W.D.Wis. 1986); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 581 P.2d 271, 279 (1978) (citing Hall v. E.I. DuPont de Nemours & Co., Inc., 345 F.Supp. 353, 368 (E.D.N.Y.1972)); Amer. L.Prod.Liab. (Third) § 32.53, at 90-93 (1987) hereinafter "Prod.Liab."; Note, "Failures to Warn and the Sophisticated User Defense," 74 Va.L.Rev. 579, 583 n. 18 (1988) hereinafter "Failures to Warn"; Note, "Special Project: An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation," 36 Vand. L.Rev. 573, 593 (1983). This court agrees.

An action in negligence for failure to warn derives from Restatement (Second) of Torts § 388:

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 ... 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.

(Emphasis added). It is subsection (c) which forms the basis of the negligent failure to warn action. Clearly § 388 contemplates standard negligence notions such as duty, breach, and foreseeability. Plaintiff does not dispute this.

Traditionally, however, courts have looked to § 402A of the Restatement in the context of products liability cases. The section is classified as a "strict liability" tort since liability is automatic once the plaintiff has proven all elements of his or her claim. The section reads:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.⁵

Nevada initially recognized the strict products liability doctrine by judicial decree in Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). As is the case in at least five other jurisdictions as well, the Nevada formulation is based on California common law. See Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). However, in subsequent cases, the Nevada Supreme Court has often looked to Restatement § 402A for guidance in resolving products liability issues. See, e.g., Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977) (failure to warn case); General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972) (same). In light of Nevada's explicit recognition of § 402A, particularly in failure to warn cases, the court concludes that the Restatement is authoritative in this jurisdiction.

Although § 402A is classified as a strict liability tort, many courts and commentators have pointed-out its "negligence-like" feel with respect...