Kennedy v. Mobay Corp., 1815
| Citation | 84 Md.App. 397,579 A.2d 1191 |
| Decision Date | 01 September 1989 |
| Docket Number | No. 1815,1815 |
| Parties | , 59 USLW 2244, Prod.Liab.Rep. (CCH) P 12,628, 14 O.S.H. Cas. (BNA) 1801 Marlene Cohen KENNEDY, et al. v. MOBAY CORPORATION, et al. , |
| Court | Court of Special Appeals of Maryland |
Wendy Fleishman (Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., Robert Weltchek, Gebhardt & Smith, Bertram Goldstein and Goldstein, Hood & Associates, Baltimore, on the brief), for appellants.
Willis A. Siefried (Dennis R. McEwen and Eckert, Seamans, Cherin & Mellott on the brief), Pittsburgh, Pa., for appellee, Mobay.
Clifford J. Zatz (Karen L. Meengs, David C. Allen, Ann H. Jameson and Akin, Gump, Strauss, Hauer & Feld on the brief), Washington, D.C., for appellees, W.R. Grace & Co. and E.I. Dupont De Nemours & Co.
Argued before WILNER, ROSALYN B. BELL and CATHELL, JJ.
Twenty-five employees or former employees of W.L. Gore & Associates (Gore) sued three chemical companies--Mobay Corporation (Mobay), W.R. Grace & Company (Grace), and E.I. DuPont de Nemours & Company, Inc. (DuPont)--which had supplied certain substances to Gore for use in its manufacturing processes, claiming that those substances were hazardous, that the defendants gave inadequate or misleading warnings in how to deal with the substances, and that the plaintiffs suffered personal injuries by reason of exposure to them. Their actions, based on negligence, breach of warranty, and strict liability, were tried before a jury in the Circuit Court for Cecil County, which returned a defendants' verdict.
The plaintiffs have appealed, raising three principal issues: whether the court's instructions regarding the "sophisticated user" defense were warranted and correct, whether the court erred in allowing the three defendants, collectively, eight peremptory challenges, and whether the plaintiffs were denied due process of law by reason of various continuances granted during the five-month trial. Each of the defendants has filed a defensive cross-appeal, contending that the court erred in rejecting its limitations defense against certain of the plaintiffs and its motion for judgment based on insufficiency of evidence as to other plaintiffs.
Gore manufactures, among other things, a waterproof fabric known as GoreTex that is used in making raincoats, ski wear, surgical gowns, and a variety of other products. The precise manufacturing process is regarded by Gore as a trade secret, and so we shall describe it only in general terms. It begins with polytetrafluoroethylene, known more commonly by its trade name, Teflon. Robert Gore, the company founder's son, devised a way to stretch a Teflon membrane in such manner as to create microscopic holes in it. In that condition, the membrane allows water vapor to escape through it but remains impervious to water droplets; in other words, it "breathes"--allows steam or perspiration to escape--while still remaining waterproof.
One problem with this "microporous expanded polytetrafluoroethylene" is that exposure to body oils eventually leads to a loss of its waterproofing quality. The company therefore searched for a coating that it could apply to the Teflon product. The first formula devised by its chemist involved a mixture of a Grace product, Hypol, a DuPont product, Diak 2, and a third chemical not involved in this lawsuit, xylene. Hypol, supplied by Grace during the period 1978-86, is a liquid that contains a relatively small amount (0.2% to 2.5%) of toluene diisocyanate (TDI); Diak 2, supplied by DuPont from 1978-84, is the trade name for ethylene diamine carbamate. Beginning in 1980, Gore began to add to the mix Mondur TD-80, a TDI-bearing product purchased from Mobay. Mondur TD-80 contained two isomers of TDI--80% was the 2,4 isomeric form, 20% was the 2,6 isomer. In 1983, Gore switched from the Mondur TD-80 to another Mobay product, Mondur HCB, which contained a "blocked" form of TDI.
The coating operation, as outlined in the record, involved essentially four steps. The first step was the mixing of the chemicals. The Hypol and the Mobay products were supplied in 55-gallon steel drums; the Diak 2 came in 40-pound cardboard drums. These drums were stored in a shed. When needed, the drums were taken to a mixing room where the contents were mixed to form the coating. The second step was the application of the coating to the microporous expanded Teflon membrane. The coated membrane was then passed through an oven where the heat chemically cured it; and finally, the cured product was laminated with a special adhesive onto various fabrics, which were then sold to Gore's customers.
The plaintiffs worked at or around one or more of these operations for varying periods of time in one or more of the several Gore plants in the Elkton, Md. and Newark, Del. area. They each claimed that they came into contact with raw and finished chemicals supplied by one or more of the defendants and that, as a result, they contracted chemically-related diseases and injuries to their throats, lungs, vocal chords, respiratory and central nervous systems, and other organs. Four of the plaintiffs made claims against all three defendants; seventeen sued only Mobay and Grace, alleging contact only with a TDI product and not with Diak 2; two sued only Grace; and one sued only Mobay.
As we indicated, each plaintiff pled three causes of action--negligence, breach of warranty, and strict liability. All three of those actions, however, were based on the allegation that the defendants failed to give proper and adequate warnings to the plaintiffs of the dangerous propensities of their products. Despite some language in the pleadings alleging that the products were defective, the case was not presented below and is not argued before us as involving any design or manufacturing defect. The core averments were that defendants failed to give sufficient warnings to the plaintiffs of the risks to which they would be exposed by continuous contact with the substances and to supply the plaintiffs with knowledge of safeguards, apparel, and equipment necessary for their protection. The plaintiffs attempted to show that the defendants were aware of the dangerous propensities of their products, that they were aware as well of various safeguards and precautions that could have made the handling of the chemicals safer, that they failed to inform the plaintiffs of those safeguards and precautions, and that indeed they withheld vital information and actually misled Gore as to the propensities of the various products and as to the proper precautions to be taken.
Defendants raised a number of defenses to these claims. Certain of the plaintiffs, they said, were aware that they had chemically-related injuries more than three years before they filed suit and their actions were therefore time-barred. Other plaintiffs, they contended, had failed to prove that their injuries resulted from exposure to the defendants' products. The principal defense raised by all three defendants and common to all plaintiffs, however, was what has become known as the "sophisticated user" defense--essentially, that their customer, Gore, was technically proficient and well aware of the propensities of the substances and how best to deal with them, and that defendants were entitled to rely on Gore to provide a safe workplace for its employees. The trial court recognized this defense and instructed the jury on it. The plaintiffs contend that this is not a proper defense--that the Maryland appellate courts have not recognized it and, as a policy matter, should not recognize it. Moreover, they urge that, even if the defense is to be allowed, (1) this is not a proper case for it, and (2) the articulation of it in the court's instructions was incorrect. We turn first to these issues.
This Court discussed the sophisticated user defense recently in Eagle-Pitcher Industries v. Balbos, 84 Md.App. 10, 578 A.2d 228 (1990). The plaintiffs there sued various manufacturers and suppliers of asbestos-containing products for injuries they received through exposure to those products while employed at Bethlehem Steel Corporation. The defendants asserted, among other things, that they were relieved of responsibility for failure to warn the plaintiffs of the dangerous propensities of their products because Bethlehem was aware of those propensities and they reasonably relied on Bethlehem to warn its employees. We concluded that the evidence did not support the defense--that the defendants had no indication that Bethlehem would or did take any action to warn its employees or any precaution to safeguard them--and, for that reason, found no error in the court's refusal to give a sophisticated user instruction to the jury. Although we perhaps tacitly assumed that the defense was a valid one where the evidence supported it, we made no specific holding to that effect and did not address the associated issues raised here.
The most frequently cited articulation of this defense and the principles underlying it appears in Goodbar v. Whitehead Bros., 591 F.Supp. 552 (W.D.Va.1984), aff'd sub nom., Beale v. Hardy, 769 F.2d 213 (4th Cir.1985). A number of employees of a large foundry who had developed silicosis sued the companies that had supplied silica-containing products to the foundry, complaining of their failure to warn them about the dangerous propensities of those products. Although, as here, the pleading alleged all three branches of a traditional product liability action--negligence, breach of warranty, and strict liability--because the action was governed by Virginia law and that law did not recognize strict liability as a ground of recovery, the Court was obliged to deal with the sophisticated user defense only in the context of the other two theories of liability.
The Court began with the negligence claim, which it held was shaped and controlled by the...
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