Kennedy v. Mobay Corp.

WILNER, Judge. Twenty-five employees or former employees of W.L. Gore & Associates (Gore) sued three chemical companies — Mobay Corporation (Mobay), W.R. Grace & Company (Grace), and E.I. DuPont de Nemours & Company, Inc. (DuPont) — which had supplied certain substances to Gore for use in its manufacturing processes, claiming that those substances were hazardous, that the defendants gave inadequate or misleading warnings in how to deal with the substances, and that the plaintiffs suffered personal injuries by reason of exposure to them. Their actions, based on negligence, breach of warranty, and strict liability, were tried before a ⁴⁰⁰ jury in the Circuit Court for Cecil County, which returned a defendants’ verdict. The plaintiffs have appealed, raising three principal issues: whether the court’s instructions regarding the “sophisticated user” defense were warranted and correct, whether the court erred in allowing the three defendants, collectively, eight peremptory challenges, and whether the plaintiffs were denied due process of law by reason of various continuances granted during the five-month trial.

Each of the defendants has filed a defensive cross-appeal, contending that the court erred in rejecting its limitations defense against certain of the plaintiffs and its motion for judgment based on insufficiency of evidence as to other plaintiffs. I. GENERAL BACKGROUND Gore manufactures, among other things, a waterproof fabric known as GoreTex that is used in making raincoats, ski wear, surgical gowns, and a variety of other products. The precise manufacturing process is regarded by Gore as a trade secret, and so we shall describe it only in general terms. It begins with polytetrafluoroethylene, known more commonly by its trade name, Teflon.

Robert Gore, the company founder’s son, devised a way to stretch a Teflon membrane in such manner as to create microscopic holes in it. In that condition, the membrane allows water vapor to escape through it but remains impervious to water droplets; in other words, it “breathes” — allows steam or perspiration to escape — while still remaining waterproof. One problem with this “microporous expanded polytetrafluoroethylene” is that exposure to body oils eventually leads to a loss of its waterproofing quality. The company therefore searched for a coating that it could apply to the Teflon product.

The first formula devised by its chemist involved a mixture of a Grace product, Hypol, a DuPont product, Diak 2, and a third chemical not involved in this lawsuit, xylene. Hypol, supplied by Grace during the peri ⁴⁰¹ od 1978-86, is a liquid that contains a relatively small amount (0.2% to 2.5%) of toluene diisocyanate (TDI); Diak 2, supplied by DuPont from 1978-84, is the trade name for ethylene diamine carbamate. Beginning in 1980, Gore began to add to the mix Mondur TD-80, a TDI-bearing product purchased from Mobay. Mondur TD-80 contained two isomers of TDI — 80% was the 2,4 isomeric form, 20% was the 2,6 isomer.

In 1983, Gore switched from the Mondur TD-80 to another Mobay product, Mondur HCB, which contained a “blocked” form of TDI. The coating operation, as outlined in the record, involved essentially four steps. The first step was the mixing of the chemicals. The Hypol and the Mobay products were supplied in 55-gallon steel drums; the Diak 2 came in 40-pound cardboard drums.

These drums were stored in a shed. When needed, the drums were taken to a mixing room where the contents were mixed to form the coating. The second step was the application of the coating to the micro-porous expanded Teflon membrane. The coated membrane was then passed through an oven where the heat chemically cured it; and finally, the cured product was laminated with a special adhesive onto various fabrics, which were then sold to Gore’s customers.

The plaintiffs worked at or around one or more of these operations for varying periods of time in one or more of the several Gore plants in the Elkton, Md. and Newark, Del. area. They each claimed that they came into contact with raw and finished chemicals supplied by one or more of the defendants and that, as a result, they contracted chemically-related diseases and injuries to their throats, lungs, vocal chords, respiratory and central nervous systems, and other organs. Four of the plaintiffs made claims against all three defendants; seventeen sued only Mobay and Grace, alleging contact only with a TDI product and not with Diak 2; two sued only Grace; and one sued only Mobay. As we indicated, each plaintiff pled three causes of action —negligence, breach of warranty, and strict liability.

All three of those actions, however, were based on the allega ⁴⁰² tion that the defendants failed to give proper and adequate warnings to the plaintiffs of the dangerous propensities of their products. Despite some language in the pleadings alleging that the products were defective, the case was not presented below and is not argued before us as involving any design or manufacturing defect. The core averments were that defendants failed to give sufficient warnings to the plaintiffs of the risks to which they would be exposed by continuous contact with the substances and to supply the plaintiffs with knowledge of safeguards, apparel, and equipment necessary for their protection. The plaintiffs attempted to show that the defendants were aware of the dangerous propensities of their products, that they were aware as well of various safeguards and precautions that could have made the handling of the chemicals safer, that they failed to inform'the plaintiffs of those safeguards and precautions, and that indeed they withheld vital information and actually misled Gore as to the propensities of the various products and as to the proper precautions to be taken.

Defendants raised a number of defenses to these claims. Certain of the plaintiffs, they said, were aware that they had chemically-related injuries more than three years before they filed suit and their actions were therefore time-barred. Other plaintiffs, they contended, had failed to prove that their injuries resulted from exposure to the defendants’ products. The principal defense raised by all three defendants and common to all plaintiffs, however, was what has become known as the “sophisticated user” defense — essentially, that their customer, Gore, was technically proficient and well aware of the propensities of the substances and how best to deal with them, and that defendants were entitled to rely on Gore to provide a safe workplace for its employees.

The trial court recognized this defense and instructed the jury on it. The plaintiffs contend that this is not a proper defense — that the Maryland appellate courts have not recognized it and, as a policy matter, should not recognize it. Moreover, they urge that, even if the defense is to be allowed, (1) this is not a proper case for it, and (2) ⁴⁰³ the articulation of it in the court’s instructions was incorrect. We turn first to these issues.

II

THE SOPHISTICATED USER DEFENSE A. In General This Court discussed the sophisticated user defense recently in Eagle-Pitcher Industries v. Balbos, 84 Md.App. 10 , 578 A.2d 228 (1990). The plaintiffs there sued various manufacturers and suppliers of asbestos-containing products for injuries they received through exposure to those products while employed at Bethlehem Steel Corporation. The defendants asserted, among other things, that they were relieved of responsibility for failure to warn the plaintiffs of the dangerous propensities of their products because Bethlehem was aware of those propensities and they reasonably relied on Bethlehem to warn its employees. We concluded that the evidence did not support the defense— that the defendants had no indication that Bethlehem would or did take any action to warn its employees or any precaution to safeguard them — and, for that reason, found no error in the court’s refusal to give a sophisticated user instruction to the jury.

Although we perhaps tacitly assumed that the defense was a valid one where the evidence supported it, we made no specific holding to that effect and did not address the associated issues raised here. The most frequently cited articulation of this defense and the principles underlying it appears in Goodbar v. Whitehead Bros., 591 F.Supp. 552 (W.D.Va.1984), aff'd sub nom., Beale v. Hardy, 769 F.2d 218 (4th Cir.1985). A number of employees of a large foundry who had developed silicosis sued the companies that had supplied silica-containing products to the foundry, complaining of their failure to warn them about the dangerous propensities of those products. Although, as here, the pleading alleged all three branches of a traditional product liability action — negligence, breach of warranty, and strict liability — because the action was governed by Virginia law and that law did not recognize ⁴⁰⁴ strict liability as a ground of recovery, the Court was obliged to deal with the sophisticated user defense only in the context of the other two theories of liability.

The Court began with the negligence claim, which it held was shaped and controlled by the principles set forth in Restatement (Second) of Torts § 388. That section states: “One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” Focusing on paragraph (c) of § 388, the Court turned to comment n of the Reporter’s Notes 1 , dealing specifically with the situation in which a person supplies chattels to his immediate customer knowing that those chattels will likely be used by others — e.g., customers or employees of his customer. Comment n notes that “[i]n all such cases the question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.” The Reporter observes: ⁴⁰⁵ “Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the suppliers from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel.

The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it. All sorts of chattels may be supplied for the use of others, through all sorts of third persons and under an infinite variety of circumstances. This being true, it is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel, or of the precautions which must be exercised in using it in order to make its use safe.” (Emphasis added.) The comment then goes on to discuss a number of factors that a court will have to consider in determining whether information given by the supplier to its immediate customer will suffice to preclude liability for a failure to give adequate information directly to the ultimate users or handlers of the chattel. The Goodbar Court summarized those considerations, stated in more narrative form in the comment, as follows: “These include: (1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burdens imposed on the supplier by requiring that he directly warn all users.

This comment recognizes that a balancing of these considerations is necessary in light of the fact that no single set of rules could possibly be advanced that would automatically cover all situations. Critical in my view is the recognition [in the comment] ⁴⁰⁶ that '[mjodern life would be intolerable unless one were permitted to rely to a certain extent on others doing what they normally do, particularly if it is their duty to do so.’ ” 591 F.Supp. at 557 . The Court then considered a number of cases in which the supplier had indeed been excused from liability for negligent failure to warn employees of its customer upon a finding that the customer was aware of the danger in the product and had good reason to try to protect its employees from the danger. Those cases, said the Court at 560-61: “stand for the proposition that in alleged negligent failure to warn situations such as this litigation, if the danger related to the particular product is clearly known to the purchasér/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 dangers associated with the product, no warnings are mandated.” Accepting the validity of that principle, the Court then looked at the factual circumstances before it on a summary judgment motion. It first concluded that the foundry was a large employer and was thoroughly familiar with the dangerous propensities of the silica-containing products that it used. Those products were delivered in railroad car or truck lots, and thus any written warnings accompanying the delivery would not likely reach employees who did not deal with the unloading of those vehicles.

Additionally, the Court noted that the identification of the persons actually using or exposed to the products “would require a constant monitoring by the suppliers in view of the constant turnover of the Foundry’s large work force,” the “confusion arising when twelve different suppliers and the Foundry each try to cope with the awesome task of instructing Foundry workers,” and that “in a commercial setting, it would be ⁴⁰⁷ totally unrealistic to assume that the suppliers would be able to exert pressure on a large, industrial customer ... to allow the suppliers to come in and educate its workers about the hazards____” Upon these and other circumstances, the Court concluded at 566 that the suppliers had no duty to give direct warnings to the Foundry employees “when only the Foundry is in a position to communicate effective warning and accordingly should be the one to shoulder any burden of effective warning.” In reaching this conclusion, it is evident that the Court found most telling the practical difficulty, if not the virtual impossibility, of the suppliers actually being able to communicate adequate warnings directly to the customer’s employees, much less of their being able to institute or assure the institution of effective safety precautions in their customer’s plant. This is clear not only from the text of the Court’s own remarks but as well from its quotation of this passage from Schwartz and Driver, Warnings In The Workplace: The Need For A Synthesis Of Law And Communication Theory, 52 U.Cin.L.Rev. 38, 43 (1983): “The extension of workplace warnings liability unguided by practical consideration has the unreasonable potential to impose absolute liability in those situations where it is impossible for the manufacturer to warn the product user directly. In the workplace setting, the product manufacturer often cannot communicate the necessary safety information to product users in a manner that will result in reduction of risk. Only the employer is in a position to ensure workplace safety by training, supervision and use of proper safety equipment.

Designating the manufacturer an absolute insurer of its product removes the economic incentives that encourage employers to protect the safety of their employees.” Although the breach of warranty (of merchantability) claim rested, of course, on a different basis than the negligence action, the Court concluded that the foundry’s extensive knowledge of the propensities of the products in question also precluded liability on that theory as well. Effec ⁴⁰⁸ tively, the Court held that where the purchaser knows of the dangerous condition of the product, there can be no implied warranty to him that that condition does not exist. Further, because in the breach of warranty action the employees claimed derivatively through the employer, their rights were no greater than those of the employer. Upon this analysis, the Court granted summary judgment for the defendants, and, in a very brief opinion, the Fourth Circuit Court of Appeals affirmed.

The legal premise underlying this defense, and indeed the defense itself, seems to have gained fairly wide acceptance. See, for example, Purvis v. PPG Industries, Inc., 502 So.2d 714, 719-22 (Ala.1987); Shell Oil Co. v. Gutierrez, 119 Ariz. 426 , 581 P.2d 271 (1978); Sliman v. Aluminum Co. of America, 112 Idaho 277 , 731 P.2d 1267, 1270-73 (1986); Cooley v. Quick Supply Co., 221 N.W.2d 763 (Iowa 1974); Jones v. Hittle Service, Inc., 219 Kan. 627 , 549 P.2d 1383, 1394 (1976); Tasca v. GTE Products Corp., 175 Mich.App. 617 , 438 N.W.2d 625 (1989); Whitehead v. Dycho Co., 775 S.W.2d 593 (Tenn.1989); Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex.1986); Reed v. Penn Walt Corp., 591 P.2d 478 , 22 Wash.App. 718 , aff'd and appeal dismissed, 604 P.2d 164 , 93 Wash.2d 5 (1979). Cf. Lee v. Electronic Motor Division, 169 Cal.App.3d 375, 388-89 , 215 Cal.Rptr. 195 (1985); Wilson v. E-Z Flo Chemical Co., 281 N.C. 506 , 189 S.E.2d 221, 224-25 (1972); Seibel v. Symons Corp., 221 N.W.2d 50 (N.D.1974).

As the Delaware Court, after citing a number of cases, noted in In re Asbestos Litigation (Mergenthaler), 542 A.2d 1205, 1211 (Del.Super. 1986), “[i]t would appear, then, that some version of a ‘sophisticated purchaser’ defense is the norm in most jurisdictions.” The split of authority, the Court observed, was in the application of the defense: “Some [courts] hold that where there is a sophisticated purchaser knowledgeable of the dangers of the product, the supplier can, as a matter of law, rely on that purchaser/employer to inform its employees. ⁴⁰⁹ Other courts hold that where there is a sophisticated purchaser, there is no duty to warn provided that it is reasonable for the supplier to believe that the purchaser/employer will warn its employees under the circumstances.” Id. at 1210 . Tacitly acknowledging the acceptance of this defense by other courts, the plaintiffs remind us that Maryland has never affirmatively accepted it and that, if it is to be accepted in an action based on negligence or breach of warranty, it ought not to be accepted as a defense to an action based on strict liability. As we indicated earlier, aside from our consideration of the defense in Eagle-Pitcher, supra, 84 Md.App. 10, 59-66 , 578 A.2d 228 , it has not been explicitly adopted by a Maryland Court. Three respected judges of the United States District Court for the District of Maryland have, however, upon an analysis of Maryland law, predicted that Maryland would recognize the defense and have applied Maryland law on that basis.

In Higgins v. E.I. DuPont de Nemours, Inc., 671 F.Supp. 1055 (D.Md.1987), aff'd, 863 F.2d 1162 (4th Cir.1988), a group of Baltimore City firefighters, claiming injuries from exposure to paint products purchased by the Fire Department, sued DuPont, the manufacturer of the paint, and Eastman and Union Carbide, who supplied certain chemicals to DuPont that DuPont used in making the paint product. The actions were based on negligence, breach of implied warranty, and strict liability, all founded on a failure to give adequate warnings. Eastman and Union Carbide asserted a sophisticated user defense, contending that DuPont was warned and aware of the propensities of the respective chemicals they supplied and that they had no duty to warn unknown and unknowable customers of DuPont, much less employees of those customers. Judge Smalkin examined the analysis provided in Good-bar, supra, and concluded, at 1059: ⁴¹⁰ “In the absence of any controlling Maryland decision, this Court is confident that the Court of Appeals of Maryland would recognize the sophisticated user/bulk supplier defense in a negligent failure to warn case____ The Court of Appeals of Maryland has clearly adopted § 388 as an authoritative statement of the general principles regarding negligent failure to warn in Maryland---- The recognition of the sophisticated user/bulk supplier defense logically follows from the sense of § 388, as clearly pointed out by Judge Kiser in Goodbar , and as recognized by the Fourth Circuit.

This Court is similarly confident that the Court of Appeals of Maryland would also recognize the sophisticated user/bulk supplier defense in a failure to warn claim asserted on the ground of strict liability under Restatement (Second) Torts § 402A (1965). The parties have not cited, nor has the Court independently discovered, a Maryland case recognizing any doctrinal distinction between § 388 negligent, and § 402A strict liability, failure to warn cases.” Apart from the absence of authority recognizing a distinction between the two theories in a failure to warn case, the Court relied on a Fourth Circuit holding and pronouncements of Dean Prosser to the effect that there is no such distinction. In Werner v. Upjohn Co., Inc., 628 F.2d 848, 858 (4th Cir.1980), for example, the Court observed: “The distinction between negligence and strict liability lessens considerably in failure to warn cases. Under a negligence theory the issue is whether the defendant exercised due care in formulating and updating the warning, while under a strict liability theory the issue is whether the lack of a proper warning made the product unreasonably dangerous.

Though phrased differently the issue under either theory is essentially the same: Was the warning adequate?” Upon this analysis, applied to the facts before him, Judge Smalkin concluded that DuPont was fully aware of the propensities of the chemicals supplied by Eastman and ⁴¹¹ Union Carbide and that it “was in a far better position than either of the bulk suppliers to communicate an effective warning to its customers ... and to their customers’ employees____” Id. at 1062. He therefore granted summary judgment in favor of the suppliers, a judgment later affirmed by the Fourth Circuit Court of Appeals. The statement of the defense, as set forth in Goodbar and Higgins , and Judge Smalkin’s conclusion that it was cognizable under Maryland law were followed by Judges Black and Niemeyer, respectively, in Sara Lee Corp. v. Homasote Co., 719 F.Supp. 417 (D.Md.1989) and Singleton v. Manitowoc Co., Inc., 727 F.Supp. 217 (D.Md.1989). In Dechello v. Johnson Enterprises, 74 Md.App. 228 , 536 A.2d 1203 (1988), this Court confirmed the underpinning of Judge Smalkin’s prediction that, if the defense were recognized, it would apply not only to an action grounded on negligence, but also one grounded on strict liability.

Although the sophisticated user defense was not at issue there, we concluded, at 236, 536 A.2d 1203 , that: “Maryland has long recognized a duty on the part of sellers to warn of latent dangers attendant upon a proper use of the products they sell, where injury is foreseeable. The standard applied in that regard, under all three theories of negligence, breach of implied warranty, and strict liability, has been that stated in Restatement (Second) of Torts § 388.” (Emphasis added.) For the proposition that § 388 applied to such actions based on strict liability, we cited Moran v. Faberge, 273 Md. 538, 544 , 332 A.2d 11 (1975). It is true, as plaintiffs assert, that at least two States— Pennsylvania and New Jersey — appear to hold that the sophisticated user defense is not applicable in actions based on strict liability. The Pennsylvania decisions all stem from a statement made in Berkebile v. Brantley Helicopter Corp., 462 Pa. 83 , 337 A.2d 893, 903 (1975) that, where warnings are required to make a product non-defective, the manufacturer has a duty “to provide such warnings in a form that will reach the ultimate consumer” and that “[t]he ⁴¹² duty to provide a non-defective product is non-delegable.” From this, a number of Federal courts applying Pennsylvania law and at least one lower State court have concluded that knowledge on the part of the immediate purchaser is of no consequence.

See Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357 (E.D.Pa.1982); Brown v. Caterpillar Tractor Co., 741 F.2d 656 (3d Cir.1984); Mackey v. Maremount Corp., 350 Pa.Super. 415 , 504 A.2d 908 (1986). One New Jersey court was even more straightforward; in Olencki v. Mead Chemical Co., 209 NJ.Super. 456, 507 A.2d 803, 806 (1986), the Court held that “knowledge of the risk that employers may not adequately warn their employees is imputed to the defendants in a strict liability action” and that, accordingly, in such an action “the manufacturer cannot be absolved of the duty to warn.” See also Menna v. Johns-Manville Corp., 585 F.Supp. 1178 (D.N.J.1984); Billsborrow v. Dow Chemical, U.S.A., 139 Misc.2d 488 , 527 N.Y.S.2d 352 (Sup.1988); Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776 (Ky.1984); and Russo v. Abex Corp., 670 F.Supp. 206 (E.D.Mich.1987), applying Michigan Law, but compare Tasca v. GTE Products Corp., supra, 438 N.W.2d 625 , rejecting the Russo supposition as to Michigan law. 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 § 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? ⁴¹³ 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 § 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. The Fourth Circuit Court of Appeals, applying Virginia law in Willis v. Raymark Industries, Inc., 905 F.2d 793 (4th Cir.1990), made the point exactly, stating at 797: “Comment n clearly focuses on what the product manufacturer knew and the reasonableness of its reliance on the employer prior to and during the time the workers were exposed.” (Emphasis omitted.) To this extent, and in this form, we recognize the defense as a part of Maryland product liability law. B. This Case In arguing this defense, appellees contended, and presented evidence to show, that (1) Gore was, in fact, fully aware of the propensities of the various substances and that it took reasonable measures to protect its employees, (2) appellees were aware of Gore’s knowledge about these substances and reasonably relied on Gore to protect its employees, (3) appellees had no ability to give direct warnings to Gore’s employees or to institute, directly, any safety or precautionary measures in Gore’s plants, and (4) the infor ⁴¹⁴ mation and warnings given to Gore with and about the products were adequate. The plaintiffs dispute elements (1), (2), and (4) and contend that (3) is irrelevant.

Direct Interaction With Gore Employees We have already concluded that element (3) is indeed relevant, and because the evidence bearing on that was essentially undisputed we may quickly dispose of that item. As we indicated, Gore regarded its manufacturing process as a trade secret. Both its suppliers and its employees were required to sign confidentiality agreements; many of the exhibits in this case that bear on the process are subject to a protective order. More significant — indeed dispositive — was the testimony of a Gore official, John Conbere, called by the plaintiffs.

Dr. Conbere confirmed that Gore did not invite other chemical companies into its plants because of its trade secrets policy and that it regarded defendants in particular as potential competitors. He stated that they would not be told how the substances they supplied would be used or with what they might be mixed. They would not be allowed to watch Gore’s production; except at Gore’s invitation, they would not be allowed into the production area for any purpose; they were not told how Gore’s plants were laid out, the configuration of Gore’s equipment,, how the ventilation system was set up, the temperatures at which the ovens were operated, or the speeds at which the coated Teflon membrane moved through the oven. They were not invited in to see if Gore employees were wearing respirators or whether the warnings they supplied with their products were posted in the plant.

For security reasons, Gore insisted that the Grace product, Hypol, and the DuPont product, Diak, be shipped in containers that were coded and did not reveal the product name. Another Gore employee, Dexter Worden, testified that Grace was aware that Gore used Hypol in the fabric division “but [was] not aware of how we used it.” Upon this evidence, it is clear that the defendants had no practical ability to give direct warnings to all the Gore ⁴¹⁵ employees who might come into contact with their products, to inform them of how best to handle those products safely, to institute directly any safety measures in the Gore plants, or to monitor Gore’s production and safety program. There is no doubt that the evidence sufficed to establish the third element. Gore’s Knowledge, Sophistication, and Duty The other three elements overlap to some extent.

We start with a summary of some of the evidence as to Gore’s own knowledge, sophistication, and duty. Much of this centers around six Gore employees — Dexter Worden, Robert Henn, David Wright, Jack Kramer, David Hazlebeck, and John Conbere. Mr. Worden, though not a college graduate, had some technical training and had developed considerable expertise in industrial chemistry. He had worked at DuPont as a lab technician since 1957, joining Gore in 1975.

He was familiar with tetrafluoroethylene and with the chemicals used by Gore in its coating process. Mr. Henn, a chemist, came to Gore in 1978. The owner of several chemical patents, he experimented with various chemicals, including TDI products and Diak, to develop the coating mixture for Gore. Mr. Wright, a chemical engineer, joined Gore in 1981, essentially replacing