Hall v. EI Du Pont De Nemours & Co., Inc.

Decision Date18 May 1972
Docket NumberNo. 69-C-273,70-C-1107.,69-C-273
Citation345 F. Supp. 353
PartiesPhilip HALL, An Infant, by Lloyd Hall, His Guardian Ad Litem, et al., Plaintiffs, v. E. I. DU PONT DE NEMOURS & CO., INC., et al., Defendants. Randy CHANCE et al., Plaintiffs, v. E. I. DU PONT DE NEMOURS & CO., INC., et al., Defendants.
CourtU.S. District Court — Eastern District of New York

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Jerome Edelman, Brooklyn, N. Y., for plaintiffs; Melvin Block, Brooklyn, N. Y., of counsel.

Townley, Updike, Carter & Rodgers, New York City, for defendant E. I. Du Pont De Nemours & Co.

Cravath, Swaine & Moore, New York City, for defendant Hercules Powder Co., Inc.

Rogers, Hoge & Hills, New York City, for defendant Atlas Chemical Industries, Inc.

Martin, Bloom, Lipton & Van DeWalle, Great Neck, N. Y., for defendant Austin Powder Co.

Littauer, Gordon, Ullman, Riseman & Ploscowe, New York City, for defendant Institute of Makers of Explosives.

Montfort, Healy, McGuire & Salley, Garden City, N. Y., for defendants American Cyanamid Co. and Olin Mathieson Chemical Corp.

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

These two cases arise out of eighteen separate accidents scattered across the nation in which children were injured by blasting caps. Damages are sought from manufacturers and their trade association, the Institute of Makers of Explosives (I.M.E.). The basic allegation is that the practice of the explosives industry during the 1950's—continuing until 1965—of not placing any warning upon individual blasting caps and of failing to take other safety measures created an unreasonable risk of harm resulting in plaintiffs' injuries.

In most instances the manufacturer of the cap is unknown. The question posed is whether a group of manufacturers and their trade association, comprising virtually the entire blasting cap industry of the United States, can be held jointly liable for injuries caused by their product. Our answer is that there are circumstances, illustrated by this litigation, in which an entire industry may be liable for harm caused by its operations.

While the cases are closely linked in their litigation history and underlying legal theory, they differ in several crucial respects. See Hall v. E. I. Du Pont De Nemours & Co., 312 F.Supp. 358 (E. D.N.Y.1970) for an earlier phase of the litigation. In Chance, the name of the manufacturer who actually produced the cap causing a particular injury is apparently unknown. In Hall it is, plaintiffs allege, known. We turn to Chance first since it presents the more difficult legal problems.

I. THE CHANCE CASE
A. Facts and Proceedings

Thirteen children were allegedly injured by blasting caps in twelve unrelated accidents between 1955 and 1959. The injuries occurred in the states of Alabama, California, Maryland, Montana, Nevada, North Carolina, Tennessee, Texas, Washington and West Virginia. Plaintiffs are citizens of the states in which their injuries occurred. They are now claiming damages against six manufacturers of blasting caps and the I.M.E. on the grounds of negligence, common law conspiracy, assault, and strict liability in tort. In addition, two parents sue for medical expenses. Federal jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332.

While the plaintiffs' injuries occurred at widely varied times and places, the complaint alleges certain features common to them all. Each plaintiff, according to the complaint, "came into possession" of a dynamite blasting cap which was not labeled or marked with a warning of danger, and which could be easily detonated by a child. In each instance an injurious explosion occurred.

The complaint does not identify a particular manufacturer of the cap which caused a particular injury. It alleges that each cap in question was designed and manufactured jointly or severally by the six corporate defendants or by other unnamed manufacturers, and by their trade association, the I.M.E.

Plaintiffs' central contention is that injuries were caused by the defendants' failure to place a warning on the blasting caps, and to manufacture caps which would have been less easily detonated. This failure, according to the plaintiffs, was not the result of defendants' ignorance of the dangerousness of their product to children. The complaint states that the defendants had actual knowledge that children were frequently injured by blasting caps, and, through the trade association, kept statistics and other information regarding these accidents. Recognizing the dangerousness of their product to children, the defendants, through the trade association, used various means—such as placards and printed notices—to warn users of the caps and the general public. These measures were allegedly inadequate in light of the known risks of injury. Moreover, defendants are said to have jointly explicitly considered the possibility of labeling the caps, to have rejected this possibility, and to have engaged in lobbying activities against legislation which would have required such labeling. The long-standing industry practice of not placing a warning message on individual blasting caps was, it is urged, the result of a conscious agreement among the defendants, in the light of known dangers, with regard to this aspect of their product.

The six corporate defendants are: E. I. Du Pont De Nemours & Co., Inc. ("Du Pont"), Hercules Powder Co. ("Hercules"), and Atlas Powder Co. ("Atlas"), all citizens of and having their principal places of business in Delaware; American Cyanamid Co. ("Cyanamid"), a citizen of Maine with its principal place of business in New Jersey; Olin Mathieson Chemical Corp. ("Olin"), a citizen of Virginia with its principal place of business in Connecticut; and Austin Powder Co. ("Austin"), a citizen of and having its principal place of business in Ohio. The defendant I.M.E. is an unincorporated association with its principal place of business in New York.

Defendants move to dismiss on the grounds that the plaintiff-children do not state claims upon which relief can be granted. They also request dismissal of the parents' claims for medical expenses as barred by statutes of limitations. Finally, they seek a severance on the grounds of improper joinder and transfer of the severed claims or their outright dismissal on the ground of inconvenient forum. 28 U.S.C. § 1404(a).

B. Issues Presented

The issues common to products liability cases are well known: did the manufacturer (or other supplier) violate a duty of care to plaintiffs, and was the violation a legal or "proximate" cause of plaintiffs' injuries. 2 Harper & James, The Law of Torts §§ 28.1-.2 (1956). Moving to dismiss the complaint, defendants have the burden of showing "beyond doubt" that plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).

A central question raised by defendants' motion is whether their parallel safety practices provide a basis for joint liability.

Interlaced with the issues of duty to warn, proximate cause, and joint liability is a conflicts question of considerable complexity: what choice-of-law principles are to be applied in a case such as this one where planning, design, manufacture, and sale of a product occurred in different states, and injury in yet others?

Since, as indicated below, further briefs will be required on the choice-of-law problem, we have, for the purposes of this memorandum, assumed the existence of a national body of state tort law. A growing consensus on the substantive law in this country permits such a gross first approach to the preliminary motions before us since all we need to determine now is whether the plaintiffs might succeed on the law and facts. See, e. g., Wright v. Carter Products, 244 F.2d 53, 56-60 (2d Cir. 1956) (Massachusetts law applicable but general treatises, articles and case law of other states cited on motion to dismiss).

Under both negligence and strict liability standards manufacturers and other suppliers have a duty to users, consumers, and in some circumstances to the general public or portions of it, to produce products with appropriate warnings, instructions, and other safety features. See, e. g., Noel, Manufacturer's Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816 (1962); Noel, Products Defective Because of Inadequate Directions or Warnings, 23 Sw.L.J. 256 (1969); Rest.2d Torts § 388, comment e, § 402A, comments j, l (1965) (warnings under negligence and strict liability standards). Defendants' duty of care is basic to liability, and we turn first to that issue.

C. Duty to Warn and Standard of Care (1) Negligence

A manufacturer's duty to produce a safe product, with appropriate warnings and instructions where necessary, rests initially on the responsibility each of us bears to exercise care to avoid unreasonable risks of harm to others. See, e. g., 2 Harper & James, The Law of Torts § 28.3 (1956). An "unreasonable risk" in any given situation depends on the balancing of probability and seriousness of harm if care is not exercised against the costs of taking precautions. See, e. g., United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947); 2 Harper & James, supra §§ 16.9, 28.4; Rest. 2d Torts §§ 291-293, 298 (1965).

Activity involving a small likelihood of death or serious injury may require greater and more costly precautions than that involving a higher probability of lesser harm. See, e. g., The Glendola, 47 F.2d 206, 207 (2d Cir. 1931), cert. denied, 283 U.S. 857, 51 S. Ct. 650, 75 L.Ed. 1463 (1931); Rest. 2d Torts § 388, comment n at 309 (1965); 2 Harper & James, The Law of Torts § 16.9 at 931-32 (1956). Where an act involves

a risk of death or serious bodily harm, and particularly if it is capable of causing such results to a number of persons, the highest
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