Higgins v. EI Dupont De Nemours & Co., Inc.

• Decision Date: 30 September 1987
• Docket Number: S-87-1108.,Civ. No. S-18-4896
• Citation: 671 F. Supp. 1063
• Court: U.S. District Court — District of Maryland
• Parties: Kevin P. HIGGINS, et al. v. E.I. DUPONT DE NEMOURS & CO., INC.

671 F. Supp. 1063

Kevin P. HIGGINS, et al. v. E.I. DUPONT DE NEMOURS & CO., INC.

Civ. Nos. S-18-4896, S-87-1108.

United States District Court, D. Maryland.

September 30, 1987.

Alex S. Katzenberg, Cohen, Snyder, McClellan, Eisenberg, P.A., and James M. Gabler, Phillips P. O'Shaughnessy, Alison D. Kohler, Sandbower, Gabler & O'Shaughnessy, P.A., Baltimore, Md., for plaintiffs.

William E. Gordon, Jr., Wilmington, Del., and Jervis S. Finney, Pamela J. White, Ober, Kaler, Grimes & Shriver, Baltimore, Md., for defendant DuPont.

SMALKIN, District Judge.

I.

This products liability case has already been the subject of one published opinion, 671 F.Supp. 1055 (D.Md.1987), in which this Court granted summary judgment in favor of two suppliers of constituent chemicals used in the manufacture of defendant DuPont's Imron paint. The facts of the case were fully stated in the Court's earlier published opinion, and will be repeated only briefly here. The matter is currently before the Court on the motion of the remaining defendant, DuPont, for summary judgment, which was briefed in accordance with the Court's letter scheduling order of July 14, 1987. Plaintiffs have responded thereto. No oral hearing is necessary. Local Rule 6, D.Md.

The remaining plaintiffs in this case are the parents of two sets of twins who died at or shortly after birth. Both fathers, Mr. Higgins and Mr. Jones, were firefighters with the Baltimore City Fire Department. The essential facts pertinent to their involvement with Imron paint are undisputed. Imron was advertised by DuPont for sale through distributors for use by industrial professionals, such as fleet truck and transit systems and manufacturers of aircraft, fire engines, heavy duty construction equipment, and utility vans. Imron was sold and delivered by DuPont to C & R Paint Supply, Inc., which in turn, sold and delivered the product (along with other paint supplies) to the Key Highway repair yard of the Baltimore City Fire Department, where fire apparatus was regularly painted. From 1979 to 1985, the City Fire Department's Key Highway facility distributed quantities of Imron in both marked (i.e., with DuPont's labels affixed) and unmarked one-gallon paint cans, coffee cans, or glass jars to, inter alia, the plaintiffs, members of Engine Company No. 1, for their use in touching up fire apparatus in the firehouse. The City, which is no longer a party to this lawsuit, did not provide the plaintiffs or other firefighters with any separate instructions or warnings as to the use of Imron, or with protective clothes (aside from, occasionally, face masks) to wear while applying the Imron paint. The plaintiffs applied the Imron, and they subsequently became the parents of stillborn twins born on January 1, 1982 (Higgins), and twins who died just after their birth on September 11, 1983 (Jones). (The complaint alleges that the stillbirths and deaths were due to the teratogenic effects of Imron.)

It is undisputed that DuPont's distributor, C & R, never dealt with, delivered, or sold any Imron products directly to the firehouses of Baltimore City. It is also undisputed that material safety data sheets (MSDSs) were provided to the Baltimore City Fire Department, and, most significantly, that the labels affixed to the Imron products sold by C & R to the City Fire Department prominently stated, both before and after 1979:

FOR INDUSTRIAL USE ONLY by professional, trained personnel. Not for sale to or use by the general public. The accompanying label instructions and warnings required the use of a supplied-air respirator, eye protection, gloves, protective clothing, and adequate ventilation. (Plaintiffs have identified one 1978 label, out of a large pile of Imron labels furnished them during discovery, that does not contain the respiratory and skin exposure precautions just described. This label is not relevant to the issues in this case, where plaintiffs' use of Imron only in 1979 and later is alleged, and where the first set of twins was not born until 1982. Thus, the Court must accept as true the DuPont contention that Imron, during the period relevant to this suit, was labelled with precautions including respiratory, eye, and skin protection, as recited above.) The labels carried no specific warning, though, of possible teratogenic effects of the product.

II.

A.

There is absolutely no dispute that, even in 1978, all Imron labels contained specific warnings against its use by anyone other than "professional, trained personnel." This warning was conspicuously placed on the front of the Imron label, preceded by an upper case warning, "FOR INDUSTRIAL USE ONLY." Although the plaintiffs dispute whether the use to which this paint was put was an "industrial use," they do not and cannot dispute that the plaintiffs were not "professional, trained personnel" in the art of paint application. Indeed, review of the Jones affidavit, especially at paragraphs 6 and 7, shows that, while the plaintiffs might have been welltrained, professional firefighters, their paint application techniques were anything but professional. They wore only their fire department work uniforms (which were taken home to be laundered), with no protective clothing at all, mixing the paint in paper cups without gloves, and even occasionally stirring it with their fingers. There clearly is no factual dispute that the plaintiffs were not "professional, trained personnel," in the obvious sense that term was used on the Imron label. Had plaintiffs been "professional, trained personnel," it is utterly inconceivable that they would have disregarded the post-1978 label admonitions about the need for respiratory, eye, and skin exposure protection while handling Imron.

B.

Whether the fault of DuPont in this case be conceptualized as a "design defect" or as a "labelling defect," and whether its liability be predicated upon negligence, strict liability under Restatement (Second) of Torts § 402A (1965), or breach of warranty, it is clear that if the Court can say as a matter of law that the plaintiffs' manner of use of the product cut off the chain of proximate causation, the defendant is entitled to summary judgment. In this regard, the Court finds persuasive the commentary in White and Summers, Uniform Commercial Code § 11-8 (2d ed. 1980), that no matter how described or under what theory asserted, behavior by the plaintiff that cuts off the chain of proximate causation is a bar to recovery on product liability claims. Maryland law is in agreement with White and Summers in disregarding, with regard to a plaintiff's misbehavior, any strict pigeon-holing exercise regarding the underlying product liability theory. See Erdman v. Johnson Bros. Radio and Television Co., 260 Md. 190, 271 A.2d 744 (1970). The Maryland courts have consistently recognized that a plaintiff's product misuse, including failure to heed a manufacturer's warnings, can bar product liability recovery, as a matter of law. See, e.g., Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 595-98, 495 A.2d 348, 355-56 (1985); Simpson v. Standard Container Co., ...