777 F. Supp. 420

Peter IERARDI, and Angela Ierardi v. LORILLARD, INC., et al.

Civ. A. No. 90-7049.

United States District Court, E.D. Pennsylvania.

Oct. 28, 1991.

Laurence H. Brown, Steven J. Cooper-stein, Howell K. Rosenberg, Brookman, Rosenberg, Brown & Sandler, Thomas F. Johnson, Daniel G. Childs, Johnson & Childs, Philadelphia, Pa., for plaintiffs.

Matthew A. White, Franklin Poul, David I. Bookspan, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., Walter L. Cofer, William S. Ohlemeyer, Gary R. Long, Pat*421rick M. Sirridge, David K. Hardy, Shook, Hardy and Bacon, Kansas City, Mo., for defendant Lorillard, Inc.

Robert V. Dell’Osa, Kenneth C. Frazier, Drinker, Biddle & Reath, Kim R. Tulsky, Mann, Ungar & Spector, Philadelphia, Pa., Andrew J. Me Elaney, Jr., Stephen J. Brake, Nutter, Me Clennen & Fish, Boston, Mass., for defendant Hollingsworth & Vose Co.

Edward J. Wilbraham, Philadelphia, Pa., for movants.

MEMORANDUM

NEWCOMER, District Judge.

Factual Background:

The above-captioned matter is a negligence/products liability action. Between 1952 and 1956, P. Lorillard, Inc., predecessor to defendant Lorillard, Inc., manufactured Kent cigarettes with an asbestos-containing filter — the “Micronite” filter. Defendant Hollingsworth & Vose (“H & V”) supplied the asbestos containing filter media to P. Lorillard. Plaintiff Peter Ier-ardi now brings this lawsuit alleging that he contracted mesothelioma as a direct result of his use of Kent cigarettes during the period of 1953-1956.

Plaintiffs have served interrogatories on defendant H & V requesting information regarding H & V’s developing knowledge of the dangers of asbestos and testing of the Micronite filter from the time the product was first introduced to the present. H & V objects to this discovery on grounds of relevancy. Clearly, defendant’s state of knowledge during the period from 1951— 1957 as to the potential hazards of asbestos, and as to any testing of the Micronite filter is relevant to the issue of whether defendant was negligent in manufacturing a cigarette filter containing asbestos during the same period. With regard to H & V’s knowledge after that date, however, the question of relevancy can only be answered after the court addresses the question whether a “continuing duty to warn” exists under the circumstances of this case. Accordingly, in this memorandum, I examine plaintiff’s theory of liability based on defendant’s alleged breach of a continuing duty to warn.

The Supreme Court of Pennsylvania has not yet decided the question whether a post-sale duty to warn may be imposed on a manufacturer.1 The Pennsylvania Superior Court, has, however, in Walton v. Avco Corp.,2 spoken on this issue and has imposed a post-sale duty to warn in limited circumstances.

In Walton, Hughes, a helicopter manufacturer, learned from the supplier of the helicopter engine that the oil pumps in the engines of the helicopters were defective. Walton, 557 A.2d at 375. Hughes, however, knowing the consequences of engine *422failure, failed to pass this information on to his customers. Plaintiff’s decedent’s helicopter was brought in for servicing after Hughes had received the warning from the supplier but Hughes made no mention of the defect. Id. Shortly afterward, the oil pump in the helicopter failed and the helicopter crashed, killing the plaintiff's decedent. Id. The Superior Court found, that in light of the circumstances, Hughes was strictly liable for failing to issue a post-sale warning. Id.

In imposing on Hughes a post-sale duty to warn, the Walton court relied on the Wisconsin Supreme Court’s analysis in Kozlowski v. John E. Smith’s Sons Co., 87 Wis.2d 882, 275 N.W.2d 915 (1979). In Kozlowski, plaintiff’s decedent was fatally injured by ammonia inhalation while cleaning a sausage stuffing machine. After the sale of the machine in question, the manufacturer had developed a safety valve that could have prevented the accident. A representative of the manufacturer had made two visits to the plant after the safety valve had become standard equipment on all new machines, but did not give any post-sale warning, or notice of the availability of the safety valve. Id. In finding a post-sale obligation the court noted, that “[t]he sale of the sausage staffer is to a limited market wherein the manufacturer would know of all companies that own its product.” Kozlowski, 275 N.W.2d at 923-24 quoted in Walton, 557 A.2d at 379. Indeed, in imposing a post-sale duty to warn, the Walton court itself noted that:

[a] helicopter is not a household good, commonly found in almost any home in this country. It is instead a unique and costly product which is manufactured, marketed and sold to a specialized group of consumers. We believe that Hughes would have communicated safety information and service instructions with relative ease by contacting purchasers of its helicopters, as well as authorized service centers through the mail or otherwise.

Walton, 557 A.2d at 379.

In imposing on manufacturers post-sale obligations to warn of, or to correct defects, courts, have primarily focused on four factors: (1) whether the manufacture assumes a duty to correct a defect but fails to carry out that duty;3 (2) whether the defect is remediable, (3) whether the product is in continued use, (4) whether the product users can be easily identified.4

Here, there is no evidence that H & V assumed a duty to correct any alleged defect. Indeed, H & V continues to contend that no asbestos escaped the Micronite filter. Further, the alleged defect in this instance is not a remediable one. The cigarettes cannot be recalled. Cigarettes are a fungible good. Moreover, the tragedy of this particular case is that even if Lorillard and H & V had managed to warn Peter Ierardi that Kent cigarettes were manufactured with an asbestos containing filter, and that the filter was defective in that the asbestos fibers in the filter escaped from the filter, the post-sale warning would not have prevented Peter Ierardi’s illness.

Peter Ierardi has been diagnosed as having mesothelioma. By the admission of *423plaintiff’s own expert, mesothelioma is untreatable and incurable. Even if a warning was warranted and that warning was given, the post-sale warning would not have had any affect on plaintiffs condition. Accordingly, the post-sale failure to warn could not be considered a proximate cause of plaintiff’s injuries. Thus, any claim pursuant to a continuing duty to warn must fail. Moreover, this is clearly not a case where a post-sale warning would have prevented any harm caused by the alleged defect, as the product was not in continued use at the time such a warning could have been issued.

Finally, given the extent of the market for Kent cigarettes, neither Lorillard nor H & V could have possibly issued a post-sale warning to every person who smoked Kent cigarettes during the period between 1952 and 1956.

The court further notes that the Pennsylvania Superior Court has given cautionary instructions regarding the application of the “continuing duty” doctrine. Indeed, the court stated in Walton, that, “[i]n our desire to compensate the persons who have been injured by defective products, we should not be willing to impose upon product suppliers legal duties that are unreasonable, and therefore, effectively unobtainable.” Walton v. Avco Corp., 557 A.2d 372, 380. To impose a post-sale duty to warn on a strict products liability theory, where the defect is not remediable, where the product is no longer being manufactured and is no longer in use, and where it would be impracticable to personally notify every consumer of the product, would be a perversion of the doctrine as it has been adopted by the Pennsylvania courts.5 A duty to warn under such circumstances is not only overly burdensome, but is also futile.

In light of the foregoing, I find that there is no basis upon which to impose upon defendant a continuing duty to warn. Accordingly, I find that evidence of H & V’s knowledge regarding the dangers of asbestos after 1957 would be irrelevant to this cause of action.

An appropriate order follows.

ORDER

AND NOW, this 28th day of October, 1991, upon consideration of the Plaintiff’s Supplemental Brief on defendant’s continuing duty to warn, and upon consideration of the Motions of Defendant Lorillard, and defendant Hollingsworth & Vose to Dismiss Plaintiff’s Continuing Duty to Warn Claim, consistent with the foregoing memorandum opinion, it is hereby ORDERED that the Motions of defendant Lorillard, Inc. and defendant Hollingsworth & Yose to Dismiss Plaintiff’s Continuing Duty to Warn Claim are GRANTED.

AND IT IS SO ORDERED.

Ierardi v. Lorillard, Inc.
777 F. Supp. 420

Case Details

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Ierardi v. Lorillard, Inc.
Decision Date
Oct 28, 1991
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777 F. Supp. 420

Jurisdiction
United States

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