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 Electric. See 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
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