O'Neal v. Celanese Corp.

• Decision Date: 18 November 1993
• Docket Number: No. 91-1103,91-1103
• Citation: 10 F.3d 249
• Parties: Raymond G. O'NEAL, Plaintiff-Appellant, and Lisa M. O'Neal, Plaintiff, v. CELANESE CORPORATION, Defendant-Appellee, and Hoechst Celanese Corporation, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 249

10 F.3d 249

Raymond G. O'NEAL, Plaintiff-Appellant and Lisa M. O'Neal, Plaintiff, v. CELANESE CORPORATION, Defendant-Appellee and Hoechst Celanese Corporation, Defendant.

No. 91-1103.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1992.

Decided Nov. 18, 1993.

George B. Levasseur, Jr., Cumberland, MD, argued (Ronald J. Levasseur, on brief), for appellant.

Stanley B. Rohd, Weinberg & Green, Baltimore, MD, argued (Sherry H. Flax, Matthew G. Dobson, on brief), for appellees.

Before WIDENER, Circuit Judge, CHAPMAN, Senior Circuit Judge, and MACKENZIE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WIDENER, Circuit Judge:

The appellants, Raymond and Lisa O'Neal, were plaintiffs below. They claim that Raymond O'Neal suffered lead poisoning when he used a welding torch to cut metal coated with lead-based paint and inhaled the fumes from the burning paint. At the time, O'Neal was employed by Trans America Liquidators, which had purchased the contents of a factory owned by the defendant, Celanese. Trans America was in the process of dismantling some spinning machines that it had purchased so that they could be removed from the Celanese plant.

The theory of the plaintiffs' case against Celanese was that Celanese had breached its duty to warn Raymond O'Neal about the presence of lead paint on the interior of the spinning machines, and that this breach was the proximate cause of O'Neal's lead poisoning. The trial was bifurcated as to the issues of liability and damages, and the issue of liability was sent to the jury. After the jury returned a verdict on the issue of liability against the defendant, Celanese Corp., the district court granted a j.n.o.v. and conditional new trial in favor of Celanese. The O'Neals appeal, and we now affirm the j.n.o.v., now called judgment as a matter of law under Fed.R.Civ.P. 50.

I.

From the late 1920s until the early 1980s, Celanese operated a fiber production and weaving facility in Cumberland, Maryland. This facility, known as the Amcelle plant, extruded acetate and triacetate yarn and weaved it into fabric. Because of the declining demand for the fibers produced at Amcelle, Celanese closed the facility in the early 1980s. Celanese ultimately contracted with Trans America for the sale and removal of the contents of the Amcelle plant, and Trans America bought the same.

The problem in this case arose when Trans America used cutting torches to complete the dismantling process on the spinning machines in Spinning Block One. These spinning machines had been used to transform a mixture referred to as "dope," which contained 70-80% acetone, into acetate yarn. When they were first built, between 1924 and 1928, red lead, a primer and sealant compound containing lead that has a distinctive red-orange color, was used to seal the joints between the sections of the spinning machines and also around the row of windows located along the top of each row of machines. Red lead also was used when the machines were modified in 1941, and possibly when certain repairs were made as late as 1972.

Red lead was not visible until the spinning machines had been partially dismantled. Each row of machines had an outer sheet-metal cover, and under that, two layers of insulation. It was primarily on the inner hull, beneath the sheet metal cover and insulation layers, that red lead was used. According to the plaintiffs, Raymond O'Neal inhaled lead when he used a cutting torch to cut the bolts securing sections of the inner hull, and possibly also when he cut the catwalks and other supporting apparatus. Even though the dense smoke in the spinning area where he was working made it difficult to breathe, O'Neal did not wear a respirator, and never asked anyone if he could have one. During an interview with Martin Kline, an investigator with Maryland Occupational Safety and Health (MOSH), O'Neal said that he had not been wearing a respirator "because it was too uncomfortable to wear under his welding hood."

O'Neal began cutting the inner hulls of the spinning machines with a torch on February 27, 1985. On the same day, Kline from MOSH attached an air sampling device to O'Neal's belt and collar. Kline was concerned about the presence of lead because "[m]ost of the older paints used in industry did have lead and this was an old facility." In fact, tests performed on the air samples did show unacceptably high lead levels, and on March 11th torch burning was discontinued in the spinning areas until Trans America, in coordination with Kline, was able to reduce the level of emissions from burning and use adequate respirators.

This court recently stated the rules that govern a judgment notwithstanding the verdict as follows:

A district judge may overturn a jury verdict on a motion for j.n.o.v. only if "there is no legally sufficient evidentiary basis for a reasonable jury to have found for [the prevailing] party." Fed.R.Civ.P. 50(a)(1). In making this determination, the judge is not to weigh the evidence or appraise the credibility of witnesses, but must view the evidence in the light most favorable to the non-moving party and draw legitimate inferences in its favor. Mays v. Pioneer Lumber Corp., 502 F.2d 106, 107 (4th Cir.1974) [cert. denied 420 U.S. 927, 95 S.Ct. 1125, 43 L.Ed.2d 398 (1975) ]. Our review of the district court's action is de novo.

Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 318 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992). "However, the jury may only draw inferences from the evidence that are 'reasonably probable,' and 'mere speculation is insufficient' to support a verdict." Al-Zubaidi v. Ijaz, 917 F.2d 1347, 1348 (4th Cir.1990) cert. denied, 499 U.S. 960, 111 S.Ct. 1583, 113 L.Ed.2d 648 (1991).

We are of opinion that the district court was correct in granting j.n.o.v. in favor of Celanese because the evidence establishes, as a matter of law, what has become known as the "sophisticated user" defense. The Maryland courts adopted the sophisticated user defense in Kennedy v. Mobay Corp., 325 Md. 385, 601 A.2d 123 (1992), aff'g for the reasons stated in 84 Md.App. 397, 579 A.2d 1191 (1990). The defense is based upon the principles set forth in Restatement (Second) of Torts Sec. 388, ¹ and, as adopted in Maryland, upon the articulation of the defense and the principles underlying it appearing in Goodbar v. Whitehead Bros., 591 F.Supp. 552 (W.D.Va.1984), aff'd sub nom. on the opinion of the district court, Beale v. Hardy, 769 F.2d 213 (4th Cir.1985). See Kennedy v. Mobay Corp., 579 A.2d at 1194.

The sophisticated user defense is implicated in the situation in which A supplies a chattel to B, B in turn allows C to be exposed to the chattel, C is injured by exposure to the chattel, and C claims that A should be liable to C for A's failure to warn C of the danger. In Kennedy, the Maryland Court of Special Appeals quoted the following from Goodbar:

[I]n alleged negligent failure to warn situations such as this litigation, if the danger related to the particular product is clearly known to the purchaser/employer, then there will be no obligation to warn placed upon the supplier. Instead, it becomes the employer's responsibility to guard against the known danger by either warning its employees or otherwise providing the necessary protection. Stated another way, when the supplier has reason to believe that the purchaser of the product will recognize the danger associated with the product, no warnings are mandated.

Kennedy, 579 A.2d at 1196, quoting Goodbar, 591 F.Supp. at 560-61. The Kennedy court applied the defense in a strict liability action, and implied that the defense also would apply to cases based on a negligent failure to warn and breach of implied warranty. Kennedy, 579 A.2d at 1198-99.

The sophisticated user defense, as adopted in Maryland, was summarized in Kennedy as follows:

Part of the problem that may lead some to look askance at this defense is in the language that some courts have used to describe it, in particular the notion that where the elements or prerequisites of it exist, the supplier is "absolved" of any duty to warn ultimate users. That notion is not only unnecessary to the defense but in fact is inconsistent with the rationale of comment n to Restatement Sec. 388. There is a duty to warn of defects or propensities that make a product hazardous, and that duty does extend ordinarily to those who may reasonably be expected to use or come into harmful contact with the product. It is not a duty, we think, from which the supplier can be entirely absolved. The question, rather, is, what conduct will suffice to discharge that duty?

Viewed in that context, the defense is not only logical but necessary. Where it is impracticable for the supplier to give adequate warnings directly to all who may use or come into contact with the product, some substitute for such direct warnings is required, even in strict liability cases. Otherwise, as Messrs. Schwartz and Driver observed, supra, strict liability would become in effect, absolute liability. As comment n to Restatement Sec. 388 makes clear, the focus remains on the conduct of the supplier, but that conduct is judged in light of the circumstances. Among those circumstances are the feasibility of giving direct warnings to all who are entitled to them and, where that is not feasible, whether the supplier acted in a manner reasonably calculated to assure either that the necessary information would be passed on to the ultimate handlers of the product or that their safety would otherwise be attended to. In such a situation, that is all that reasonably can be asked and it is all we think, that the law requires.

Kennedy, 579 A.2d at 1191 (emphasis in original). The defense is available not only when the supplier actually warned the intermediary, but also when the supplier shows that it was reasonable to...