Mineral talc, as a raw material, was determined to be “inherently safe” by Los Angeles Superior Court Judge Maren Nelson in the days leading up to the first Johnson & Johnson California ovarian cancer trial in the Johnson & Johnson Talcum Powder Cases, number JCCP4872.  According to Law360.com, on July 10 the judge dismissed Imerys Talc based on her finding that talc is “inherently safe.”  This ruling could have a profound effect on talc litigation, at least in California, as it may serve to protect Imerys and other suppliers of raw talc from further liability.

The court based its decision on the 1998 California appellate case of Artiglio v. General ElectricSee 61 Cal. App. 4th 830, 839 (1998).  The Artiglio decision is based on the Restatement Third of Torts and stands for the proposition that component and raw material suppliers are not liable to ultimate consumers when the goods or material they supply are: (1) not inherently dangerous; (2) they sell goods or material in bulk to a sophisticated buyer; (3) the material is substantially changed during the manufacturing process; and (4) the supplier has a limited role in developing and designing the end product.  See id.

A number of other states, including Massachusetts, have similar jurisprudence that recognize the “bulk supplier,” “sophisticated user,” and “component part” doctrines which may lead to similar results for raw material suppliers, such as talc suppliers, in ovarian cancer talc litigation.  See Carrel v. Nat’l Cord & Braid Corp., 447 Mass. 431, 441 (2006); Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 629 (2001).

Unlike California courts, though, Massachusetts courts have not conglomerated the sophisticated user doctrine and the bulk supplier doctrine into one rule that deals with “inherently safe” raw materials.  Massachusetts courts have, however, held that the components of the Artiglio rule (the bulk supplier doctrine and the sophisticated user doctrine) are recognized defenses in Massachusetts.  See Hoffman, 434 Mass. at 629; See Artiglio 61 Cal. App. 4th at 839.  Additionally, Massachusetts courts have recognized the component parts doctrine, which in California, is a counterpart of the Artiglio rule. See 61 Cal. App. 4th at 839.  Therefore, talc defendants certainly have a strong argument for dismissal.

Hoffman, confirms that the first component of the Artiglio rule, the bulk supplier doctrine, is available in Massachusetts.  See Hoffman 434 Mass. at 629.  In Hoffman, the pivotal question on appeal concerned the duty of a bulk supplier to warn all foreseeable users of the risks associated with a product’s use.  See id.  In that case, the court held that the bulk supplier doctrine allows a manufacture-supplier of bulk products, in certain circumstances, to discharge its duty to warn end users of a product’s hazards by reasonable reliance on an intermediary.  See id.  Among the factors that may determine reasonable reliance are: (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 burden imposed on the supplier by requiring that he directly warn all users.  See Hoffman, 434 Mass. at 632; See Artiglio 61 Cal. App. 4th at 839.

The sophisticated user doctrine, another component of the Artiglio rule, is a separate and conceptually discrete affirmative defense from the “bulk supplier” defense which is also available in Massachusetts.  See Carrel, 447 Mass. at 441.  The sophisticated user doctrine relieves a manufacturer of liability for failing to warn of a product’s latent characteristics or dangers when “the end user knows or reasonably should know of a product’s dangers.”  See id.  In the context of the sophisticated user defense, the “end user” is the person whose sophistication is relevant to determining the defense.  See Taylor v. Am. Chemistry Council, 576 F.3d 16, 25 (1st Cir. 2009). Where a case involves three parties (such as a supplier, an employer who purchases the product from the supplier, and an employee who foreseeably comes into contact with the product and is injured), the “end user” may be either the intermediate party or the plaintiff. See Taylor, 576 F.3d at 25; see also Carrel, 447 Mass. at 441 (examining knowledge of intermediary); Barbosa v. Hopper Feeds, Inc., 404 Mass. 610 (1989) (examining knowledge of plaintiff).  In Carrel a camper was injured when he pulled on the end of a bungee cord, causing a knot in the cord to unwind, striking him in the eye.  See Carrel, 447 Mass. at 432.  At trial on the camper’s claim for failure to warn, the jury was instructed on the sophisticated user defense, and the defendant prevailed.  See Carrel, 447 Mass. at 433.  The Supreme Judicial Court upheld the instruction on appeal, and it noted that it was the practice of the cord’s distributor (not the manufacturer) to include in its shipments a document warning against using the bungee cord in a zip-line course in the precise manner that the camp had used it.  See Carrel, 447 Mass. at 445.

Importantly, Massachusetts courts have also recognized the component part doctrine, which in California, is considered a parallel counterpart to the Artiglio rule.  See Webb v. Special Elec. Co., 63 Cal. 4th 167, 183 (2016).  When a component of an integrated product is not itself defective, the maker of the component is not liable for injury that results from a defect in the integrated product.  See Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631 (1986) (“A supplier of a component part containing no latent defect has no duty to warn the subsequent assembler or its customers of any danger that may arise after the components are assembled.”)  California has also recognized this component parts rule in O’Neil v. Crane Co. when the court stated that a product manufacturer may not be held liable in negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.  See 53 Cal. 4th 335, 266 (2012).

Although Massachusetts courts have not yet created a combined rule, as did the California court in Artiglio, talc suppliers facing cases in Massachusetts may be still able to build an effective defense through the application of the “sophisticated user,” ”bulk supplier,” and “component parts” doctrines.