Sternhagen v. Dow Co.

Decision Date10 April 1997
Docket NumberNo. 96-161,96-161
Citation282 Mont. 168,935 P.2d 1139
Parties, Prod.Liab.Rep. (CCH) P 15,158 Marlene L. STERNHAGEN, as the Personal Representative of the Estate of Charles J. Sternhagen, Plaintiff and Respondent, v. DOW COMPANY, Chevron Chemical Company, Monsanto Company, Stauffer Chemical Company and John Doe Companies 1 through 4, Defendants and Appellants. . Heard and
CourtMontana Supreme Court

Robert M. Carlson, Corette, Pohlman, Black, Carlson, Mickelson & Johnston, Butte; Laurence F. Janssen, Lane, Powell, Spears, Lubersky, Los Angeles, CA, for Dow Chemical Company.

Christopher Mangen, Jr., Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for Chevron Chemical Company and Stauffer Chemical Company.

William A. Rossbach, Elizabeth A. Brennan, Rossbach & Whiston, Missoula, for Plaintiff and Respondent.

Lawrence A. Anderson, Great Falls, for Amicus Curiae Montana Trial Lawyers Association.

NELSON, Justice.

The United States District Court for the District of Montana, Great Falls Division, has certified to this Court the following question:

In a strict products liability case for injuries caused by an inherently unsafe product, is the manufacturer conclusively presumed to know the dangers inherent in his product, or is state-of-the-art evidence admissible to establish whether the manufacturer knew or through the exercise of reasonable human foresight should have known of the danger?

We conclude that Montana law precludes the admission of state-of-the-art evidence in products liability cases brought under the theory of strict liability.

FACTUAL AND PROCEDURAL BACKGROUND

The United States District Court for the District of Montana, Great Falls Division 1. In her complaint filed in the United States District Court for the District of Montana, plaintiff Marlene L. Sternhagen, as the personal representative of the estate of Charles J. Sternhagen, seeks recovery for injuries and damages allegedly sustained by Charles Sternhagen as a result of his exposure to the herbicide 2,4-D during the years 1948 through 1950. Plaintiff claims that the exposure of Charles Sternhagen to 2,4-D was the cause of the cancer that resulted in his death.

found the following facts relevant to the question of law certified to this Court:

2. Plaintiff seeks recovery against the defendants under the doctrine of strict liability in tort. Plaintiff claims that each of the defendants separately manufactured the 2,4-D products to which Charles Sternhagen was exposed during the years 1948 through 1950.

3. During the summer months of 1948, 1949 and 1950, Charles Sternhagen was employed by a crop spraying business in northeast Montana. Plaintiff claims that during that time, Charles Sternhagen was exposed to the herbicide, 2,4-D.

4. In 1981, Charles Sternhagen, a medical doctor specializing in radiology, was diagnosed as having a form of cancer which plaintiff claims was caused by his exposure to the herbicide 2,4-D during the years 1948 through 1950. Defendants dispute the claim that there is a causal link between the herbicide 2,4-D and the type of cancer from which Charles Sternhagen died.

5. The defendants claim neither they, nor medical science, knew or had reason to know of any alleged cancer-causing properties of the herbicide 2,4-D during the years 1948 through 1950.

DISCUSSION

Before addressing the question certified to us by the United States District Court, we will dispose of an issue injected into these proceedings by the Defendants/Appellants, Dow Company et al. (the Chemical Companies). The Chemical Companies first argue that negligence law, not strict liability, applies to this case. Plaintiff/Respondent, Marlene L. Sternhagen (Sternhagen), responds that this Court should not address this issue because it goes beyond the scope of the certified question. We agree.

We accepted the certified question as one involving only the doctrine of strict liability. The certified question does not ask this Court to determine whether negligence or strict liability law applies. To address this additional issue would go beyond the scope of the certified question and effectively render our decision an impermissible advisory opinion. See State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 419, 859 P.2d 992, 997.

Our judicial power may be validly exercised only over justiciable controversies. Hardy v. Krutzfeldt (1983), 206 Mont. 521, 525-26, 672 P.2d 274, 276 (citing Chovanak v. Matthews (1948), 120 Mont. 520, 525-26, 188 P.2d 582, 584-85). A justiciable controversy contains three elements:

First, a justiciable controversy requires that parties have existing and genuine, as distinguished from theoretical, rights or interest. Second, the controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument invoking a purely political, administrative, philosophical or academic conclusion. Third, [it] must be a controversy the judicial determination of which will have the effect of a final judgment in law or decree in equity upon the rights, status or legal relationships of one or more of the real parties in interest, or lacking these qualities be of such overriding public moment as to constitute the legal equivalent of all of them.

Brisendine v. State, Dept. of Commerce (1992), 253 Mont. 361, 364, 833 P.2d 1019, 1020-21 (alteration in original) (quoting Lee v. State (1981), 195 Mont. 1, 6, 635 P.2d 1282, 1284-85).

In the case at bar, the federal District Court has not asked us to determine whether negligence or strict liability law applies, and, therefore, the second and third requirements necessary to establish a justiciable controversy are not satisfied. That is, for us to address this issue, we would be engaging in a debate "invoking a purely ... academic conclusion." Furthermore, our opinion concerning this additional issue will not have the effect of a final judgment. Additionally, we do not consider this issue to be "of such overriding public moment as to constitute the legal equivalent" of the second and third requirements of the test. Consequently, if we were to address this issue, we would impermissibly render an advisory opinion. Finally, having not been requested to do so, to address this additional issue would impose upon our comity relationship with the federal District Court in the pending case. See Phillips v. Duro-Last Roofing, Inc. (Wyo.1991), 806 P.2d 834, 837. Accordingly, we will not address this issue.

The Chemical Companies next argue that if Restatement (Second) of Torts § 402A (1965), is the applicable law, then state-of-the-art evidence is admissible because Montana law recognizes the state-of-the-art defense in failure to warn claims. The Chemical Companies contend that the certified question must be read in conjunction not only with Restatement (Second) of Torts § 402A (1965), adopted by this Court in Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 513 P.2d 268, but also with the comments to § 402A, including Comment j. Specifically, the Chemical Companies argue that the third sentence of Comment j applies, namely that "the seller is required to give warning ..., if he has knowledge, or by the application of reasonably, developed human skill and foresight should have knowledge, of the presence of the ... danger." The Chemical Companies assert that we have cited with approval decisions of other courts that have adopted Comment j. Additionally, the Chemical Companies cite to various strict liability cases wherein we have referenced certain portions of Comment j. See e.g. Brown v. North Am. Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711 (Shea, J., concurring); Rost v. C.F. & I. Steel Corp. (1980), 189 Mont. 485, 616 P.2d 383; Krueger v. General Motors Corp. (1989), 240 Mont. 266, 783 P.2d 1340; and Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 863 P.2d 426. Based on these references, the Chemical Companies claim that we essentially have adopted some of the language contained in Comment j.

The Chemical Companies concede that we limited the extent to which we adopted Comment j in Riley v. American Honda Motor Co. (1993), 259 Mont. 128, 134-35, 856 P.2d 196, 200. However, the Chemical Companies assert that in Riley we only rejected that portion of Comment j regarding presumption of causation which they contend is irrelevant to the certified question before us. Therefore, the Chemical Companies conclude that because this Court has not expressly rejected the third sentence of Comment j, we recognize the state-of-the-art defense.

Furthermore, the Chemical Companies contend that in Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 713 P.2d 527, the plaintiff offered state-of-the-art evidence on the issue of the feasibility in a design defect case. The Chemical Companies assert that if a plaintiff is allowed to offer state-of-the-art evidence to prove feasibility in a design defect case, a defendant may also offer state-of-the-art evidence to rebut feasibility as part of its defense. Therefore, the Chemical Companies argue a defendant should also be allowed to offer state-of-the-art evidence to disprove the feasibility of a warning in a failure to warn case.

Sternhagen responds that the certified question must be answered based on the fundamental principles underlying strict products liability in Montana. Sternhagen asserts that when this Court, in Brandenburger, adopted strict liability in tort for defective products as defined in Restatement (Second) of Torts § 402A (1965), it did so based on substantial public interest and public policy grounds which included principles of fairness and economics, maximum protection for the consumer and placement of responsibility for injury on the manufacturer. Sternhagen asserts that over the past two-plus decades, this Court has consistently returned to and relied upon these core principles.

Furthermore, Sternhagen contends that this...

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