by Andrew M. Thompson
The sophisticated user defense, also known as the learned intermediary doctrine, has been widely used by drug manufacturers in defending against failure to warn claims in products liability lawsuits.[1] Although less well known, Georgia courts have also applied the sophisticated user defense outside the pharmaceutical drug context. Recently, in Parker v. Schmiede Machine & Tool Corp.,[2] the U.S. Court of Appeals for the 11th Circuit relied on the sophisticated user defense in affirming a district court's grant of summary judgment to the defendants in a case in which employees at Lockheed Martin's Marietta, Ga., facility alleged that they developed illnesses as a result of exposure to beryllium.
This article will discuss the origins of the sophisticated user defense in Georgia cases outside the pharmaceutical drug context, the application of the defense by the federal district court and 11th Circuit in the Parker case and the use of the defense in future toxic tort cases. Based upon the decisions of the district court and the 11th Circuit in Parker and the well-recognized basis for the sophisticated user defense in Georgia law, it is expected that practitioners will increasingly use the sophisticated user defense in defending toxic tort
claims against manufacturers and suppliers of allegedly hazardous products.
The Origins of the Sophisticated User Defense Under Georgia Law
In products liability and toxic tort lawsuits, plaintiffs frequently allege that the manufacturer of a product failed to properly warn the end user of the product's risks or hazards. For a plaintiff to prevail on a claim for failure to warn under Georgia law, a plaintiff must show that the defendant had a duty to warn, that the defendant breached that duty and that the breach proximately caused the plaintiff's injury.[3] The "sophisticated user" or "learned intermediary" defense relieves a product supplier of the duty to warn an ultimate consumer or user of a known hazard if there is an intermediary with knowledge of the hazard. In the pharmaceutical drug context, the rationale for the defense is that a patient's treating physician is in a better position than the manufacturer to warn the patient of a drug's risks.[4] Similarly, in the toxic tort context, the rationale for the defense is that a sophisticated employer with a history of using a particular product or substance and specific knowledge of how the particular product or substance will be used in the employer's production process, is likewise in a better position than the product manufacturer to warn its employees of the product's dangers. If a learned intermediary has actual knowledge of the dangers of a product or substance, yet would have taken the same course of action even with the information the plaintiff contends the manufacturer should have provided, then courts typically conclude that the sophisticated user or learned intermediary defense applies and the plaintiff cannot recover.[5]
The defense appears to have been first recognized in Georgia outside the pharmaceutical drug context in Eyster v. Borg-Warner Corporation,[6] in which residents who were injured in a house fire brought a lawsuit against the manufacturer of an HVAC unit, alleging that the manufacturer failed to warn the installer/distributor of the HVAC unit of the risks associated with an aluminum-copper connection in the unit. In affirming the trial court's grant of a directed verdict in favor of the manufacturer because the danger of an aluminum-copper connection was common knowledge to those engaged in the installation of HVAC units, the Court of Appeals of Georgia held that "[w]here the product is vended to a particular group or profession, the manufacturer is not required to warn against risks generally known to such group or profession."[7]
Twenty years ago, in Stuckey v. Northern Propane Gas Company,[8]the U.S. Court of Appeals for the 11th Circuit issued its first decision addressing the scope of Georgia's sophisticated user/learned intermediary defense outside the pharmaceutical drug context. In Stuckey, a plaintiff who was burned in a propane gas explosion at a house owned by his parents sued a supplier that had distributed propane to a company that then sold and delivered the propane to the house. The plaintiff alleged that the supplier failed to warn him about the tendency of the odorant added to propane gas to fade over time. In appealing the trial court's denial of its motion for directed verdict, the propane supplier argued that the seller's actual knowledge of odor fade satisfied the supplier's duty to warn. Although the 11th Circuit affirmed the trial court's denial of the supplier's directed verdict motion because the propane supplier was unable to establish that the seller of the propane had actual knowledge of odor fade, the court in Stuckey explained the scope of the learned intermediary defense under Georgia law.[9] Relying on comment n to the Restatement (Second) of Torts § 388 (1965), the 11th Circuit held that "a supplier's duty to warn a consumer does not turn on whether a warning was actually given to an intermediary, but on whether the intermediary's knowledge was sufficient to protect the ultimate consumer."[10] In other words, and as explained by subsequent courts, if a learned intermediary "has actual knowledge of the substance of the alleged warning and would have taken the same course of action even with the information the plaintiff contends should have been provided, courts typically conclude that the learned intermediary doctrine applies or that the causal link has been broken and the plaintiff cannot recover."[11]
Since Eyster and Stuckey, federal courts in Georgia have granted summary judgment to manufacturers based on the sophisticated user defense and those decisions have been affirmed by the 11th Circuit. For example, in Argo v. Perfection Products Company,[12] the district court applied the sophisticated user defense in a lawsuit by the intermediary's employees who were injured in an explosion relating to an industrial heater. In granting summary judgment to the heater manufacturer and a component-part manufacturer, the court found that the plaintiffs' employer was a sophisticated industrial user that knew or should have known how to operate and maintain the product it purchased and, "[u]nder Georgia law, when a product is sold to a particular group or profession, a manufacturer has no duty to warn against the risks generally known to that group or profession."[13]
In addition, although the sophisticated user defense is usually based upon an intermediary's actual knowledge, the defense can also be applied to protect a supplier or manufacturer from liability for failure to warn if the intermediary is charged by law with knowledge of the hazards...
