Dougherty v. Hooker Chemical Corp.

ALDISERT, Circuit Judge

(dissenting).

I would affirm the judgment of the district court for the reasons set forth by Judge John P. Fullam at trial. This court is again faced with predicting the outer limits of products liability that may ultimately be imposed by the Pennsylvania appellate courts under negligence and strict liability theories. The precedential and institutional value of our various opinions in this field is at best conjectural, and will depend upon how far Pennsylvania courts intend to extend liability.

The majority is predicting that the Pennsylvania courts will hold that there were insufficient warnings here to protect the manufacturer as a matter of law from a products liability claim based on § 388: that it was not enough for the manufacturer to prove that (1) the purchaser of the product (here, the employer of plaintiff’s decedent) “knew all of the details concerning the dangerous characteristics of this product” and (2) the manufacturer placed large warning labels on the drums and forwarded literature explaining the dangers and advising precautions. It is my prediction that the Pennsylvania appellate courts will hold these warnings to be sufficient as a matter of law to protect the manufacturer from a products liability claim whether predicated on negligence or strict liability. Any failure by the employer to warn his employee would be the subject of litigation implicating only the employer and employee.

Accordingly, I would affirm for the reasons stated by Judge Fullam in open court:

Under bur law, the plaintiff would be entitled to recover from the manufacturer of trichloroethylene if the plaintiff’s decedent’s death was caused by the exposure to that product and if the product was in what is known in the law as a defective condition, unreasonably dangerous to the user or consumer.

Under the law a product can be in a defective condition if at the time it left *183the manufacturer’s hands it had a defect which rendered it dangerous to the user; and so far as the law is concerned, a defect can consist of failure to warn the purchaser of that product of any dangers inherent in the product.

In other words, a manufacturer is not required to produce a product which is guaranteed not to cause harm under any circumstances. Obviously, a vast percentage of the products which are used in our society today do have some potential for harm.

The manufacturer, however, does have a duty to warn of any dangers inherent in the product.

In this case the evidence is undisputed that when the product was sold by the Hooker Chemical Cumpany to the Boeing Vertol Company, it was accompanied by warnings in the form of the labels on the drums, D-l and D-2, and also that it was accompanied by various items of literature which are in evidence, including the data sheet.

I rule as a matter of law that those warnings were adequate. They did include warnings in substance of every adverse effect that could be caused by the product, and they did, in fact, inform of every precaution which should be taken in handling the product.

I would point out that this is not a case in which the plaintiff is suing the employer. Whether or not the employer adequately protected the rights of its employees, whether it adequately warned employees of the hazards involved in working near this degreasing process is not a matter which can be litigated in this case.

As you perhaps know, an employee cannot sue his employer for damages, but rather has a claim for benefits under workmen’s compensation laws and under certain occupational safety laws which apply.

In this case, for reasons which do not appear, the plaintiff’s decedent did file a claim against the employer for workmen’s compensation, but chose not to prosecute that claim, in consequence of which the claim was dismissed for lack of prosecution.

The suit here is against the manufacturer of the chemical.

I would point out also that insofar as the manufacturer is concerned, under our law there is no duty whatever to warn of things which are known to the purchaser.

In this case it is uncontradicted and absolutely clear that the purchaser of the chemical, the Boeing Vertol firm, knew all of the details concerning the dangerous characteristics of this product and had full and complete knowledge of the hazards involved, the risks involved, and of the proper method of dealing with those risks. So that in my view under no circumstances could there be an issue of fact for a jury to resolve as to whether the defendant chemical company breached any duty that it owed to the plaintiff in this case.

Accordingly, I am granting the motion for directed verdict, and you will not be required to pass upon any issue in the case.

Appendix 305-07.