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Can Bystanders Make Failure-To-Warn Claims in Toxic Tort Cases? by Stephen D

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Can Bystanders Make Failure-To-Warn Claims in Toxic Tort Cases? by Stephen D THE OLDEST LAW JOURNAL IN THE UNITED STATES 1843-2019 PHILADELPHIA, TUESDAY, FEBRUARY 26, 2019 VOL 259 • NO. 38 ENVIRONMENTAL LAW Can Bystanders Make Failure-to-Warn Claims in Toxic Tort Cases? BY STEPHEN D. DALY STEPHEN D. DALY is an Special to the Legal attorney with the environ- Despite the mental, energy and land failure-to-warn claim is a use law and litigation firm similarities in staple of products liability of Manko, Gold, Katcher the strict liability and A litigation. The basic premise & Fox, located just outside is that a manufacturer or seller of Philadelphia. He can be negligent failure-to-warn failed to warn a consumer about an reached at 484-430-2338 unreasonable risk of foreseeable harm or [email protected]. theories, the court associated with the use of a product. Plaintiffs pursuing toxic tort cases liability or negligence theories, although dismissed the strict have begun to rely on failure-to-warn the distinction between the two theories liability claim but claims outside the strict consumer/ is murky. The Pennsylvania Supreme seller context. Specifically, several Court, in the context of addressing not the negligence personal injury lawsuits relating to product design defects, has instructed the emerging contaminant per- and that the theory of strict products liability claim. polyfluoroalkyl substances (PFAS) “overlaps in effect” with the theory of have relied on failure-to-warn theories negligence, although the court has tried against manufacturers of PFAS. These to maintain a distinction between the defendant owed a duty to provide lawsuits are distinct from many failure- two theories, as in Tincher v. Omega an adequate warning of a dangerous to-warn cases in that the plaintiff is Flex, 104 A.3d 328, 401 (Pa. 2014). aspect of its product; the defendant rarely a user or purchaser of the PFAS- In Pennsylvania, under strict products breached that duty by either failing containing product. Rather, the plaintiff liability, a plaintiff must show that to warn or providing an inadequate is a mere bystander who, because of the the defendant’s product was defective, warning; the absence or inadequacy of conduct of the user of the product (the the defect caused the plaintiff’s injury the warning was the proximate cause one the manufacturer allegedly failed to and the defect existed at the time the of the plaintiff’s injury; and damages. warn), was exposed to PFAS chemicals. product left the defendant’s control, as In either case, a failure-to-warn Federal courts dealing with these in Wright v. Ryobi Technologies, 175 claim turns on the reasonableness of claims have had to address whether the F. Supp. 3d 439, 449 (E.D. Pa. 2016). a manufacturer’s conduct in framing manufacturers owe a duty to residents In a strict liability failure-to-warn case, its warnings. Whether strict liability who did not purchase the PFAS- the plaintiff establishes that a product or negligence, “inevitably the conduct containing product but who live near is “defective” by showing that the of the defendant in a failure to warn where it was used. defendant’s warning of a “particular case becomes the issue,” see Olsen danger was either inadequate or v. Prosoco, 522 N.W.2d 284, 289 STRICT LIABILITY OR altogether lacking,” thereby making (Iowa 1994). Several commentators NEGLIGENCE THEORY the product unreasonably dangerous. have therefore concluded that “the Failure-to-warn claims may be For a negligent failure-to-warn claim, strict liability action for failure to brought under either strict products a plaintiff must establish that: the warn is substantially identical to its negligence-based counterpart.” See, failed to warn the Navy, the users OTHER CASES e.g., Kenneth M. Willner, “Failures of the fire-fighting foam, about its Shortly after Menkes was decided, to Warn and the Sophisticated harmful effects on human health and another federal court held that two User Defense,” 74 Va. L. Rev. 579, the environment. They claim that the manufacturers owed a duty to warn 582-83 (1988). failure to warn the Navy caused the the purchasers of their PFAS-containing products in order to protect “people ‘MeNKES V. 3M’ plaintiffs to suffer their injuries. The manufacturers moved to dismiss both living near facilities operated by those PFAS compounds encompass a class failure-to-warn claims. purchasers and users.” See Wickenden of chemicals that have been used in Despite the similarities in the strict v. Saint-Gobain Performance Plastics, hundreds of industrial processes and liability and negligent failure-to-warn 1:17-CV-1056 (N.D.N.Y. June 21, 2018). consumer products because of their theories, the court dismissed the strict Yet the case law in this area continues resistance to heat, water and oil. liability claim but not the negligence to develop, and it has not been uniform. Toxicity studies have identified links claim. As to strict products liability, In yet another toxic tort case, one relating between PFAS chemicals and negative the court dismissed the claim because to a warehouse fire, a federal court human health outcomes, but there the plaintiffs were not the users or in West Virginia dismissed a failure- remains uncertainty over how much consumers of the fire-fighting foam. to-warn claim against a manufacturer PFAS exposure is safe for humans. The court relied on Pennsylvania that was brought by neighboring The federal government has not yet set case law that supported the view that residents that had not purchased or enforceable regulatory standards for only “ultimate users or consumers” used the product at issue. See Callihan PFAS, yet the number of PFAS-related could recover for strict products v. Surnaik Holdings of West Virginia, lawsuits has exploded. Most of these liability. The court acknowledged No. 2:17-cv-04386, (S.D. W.Va. Dec. lawsuits rely on traditional tort theories that some Pennsylvania courts had 3, 2018). There, the defendants had of liability, often including failure to sold allegedly hazardous materials to allowed bystanders to pursue strict warn. a warehouse that later caught fire, products liability claims, but the court One of these lawsuits, Menkes v. 3M, exposing the plaintiffs, neighboring distinguished these cases on the basis No. 17-0573, (E.D. Pa.), involves a residents, to allegedly harmful fallout. that all of them involved bystanders lawsuit against the manufacturers of a The court dismissed the plaintiffs’ that were in “direct proximity” to fire-fighting foam that contained certain failure-to-warn claim against the the defective product. In contrast, PFAS chemicals. The plaintiffs, a sellers because the court held that the the plaintiffs, residents in the general married couple that lives in Warminster, sellers owed a duty only to persons vicinity of the Navy’s bases, were claim to have suffered various injuries “who might be expected to use [their as a result of the presence of PFAS never present at the bases where the product].” The neighboring residents in Warminster’s public water supply. fire-fighting foam was used. were not reasonably foreseeable users They claim that the manufacturers sold The court did not apply the same of the allegedly hazardous materials PFAS-containing fire-fighting foam to analysis in evaluating the plaintiffs’ and they could not bring a claim on the U.S. Navy for use at two bases negligent failure-to-warn claim. The behalf of another party without a located in and near Warminster. The court acknowledged that “manufacturers special relationship. fire-fighting foam was used by the Navy already owe a duty to the consumers It will be interesting to monitor whether to suppress fires on the ground and in and users of their products to use courts will follow the approach in Menkes aircraft hangars, which the plaintiffs reasonable care in manufacturing their or Callihan moving forward. • allege caused PFAS chemicals to products,” yet it used this legal premise contaminate the soil and groundwater. not to dismiss the plaintiffs’ claim (as The plaintiffs allege that the drinking it had for strict products liability) but water in the area surrounding the to support it. The court held that in the bases has been contaminated by PFAS negligence context, a manufacturers’ chemicals. duty extended to “nonconsumers The plaintiffs allege several causes or users living near facilities where of action against the manufacturers, a manufacturer’s products are used” Reprinted with permission from the February 26, 2019 including claims for failure to because it was foreseeable that “toxic edition of THE LEGAL INTELLIGENCER © 2019 ALM warn under both strict liability and chemicals used at a particular facility Media Properties, LLC. All rights reserved. Further will not necessarily remain confined to duplication without permission is prohibited. For negligence theories. Specifically, the information, contact 877-257-3382, [email protected] or plaintiffs allege that the manufacturers that facility.” visit www.almreprints.com. # 201-02-19-08.
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