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Chemical supplier not liable for injuries suffered by GM workers

In an appeal from Genessee County, the Court of Appeals addressed several issues arising out of allegedly negligent exposure to a hazardous chemical.  The case is Bearup, et al. v. General Motors Corporation, et al. The Plaintiffs in the case were all former employees of GM (Isn't that everyone who lives in Flint, at this point?) who suffered serious lung injuries, allegedly as a result of exposure to a draw compound used in machining operations. The claims were defended on the basis that the statute of limitations had run (before the injuries were diagnosed, even), and on the basis that the manufacturer, Quaker Chemical, owed no duty to warn the employees of the potential hazard because they were selling the compound to a "sophisticated user".    The Court ultimately accepted these defenses almost in their entirety.  

The judges noted that the trial court had "reluctantly" upheld Quaker's claim that the case was stale, even though the statute of limitations basically ran before they had any reasonable sense that they had been injured or how.  The judges of the appellate court pointed out that in Trentadue v. Buckler Automatic Lawn Sprinkler, the Engler Majority of activist judges on the Supreme Court had "completely elminated the common law discovery doctrine in Michigan."  As a result, an injury victim cannot sue promptly after learning the identity of the person who hurt him or her, if the statute of limitations has already run:  he or she is simply without recourse, unless a statute provides a discovery period.  The claim may "disappear before the victim can discover the torfeaser".

In the instant case, as with most product liability and negligence theories, there is no pertinent statutory discovery period, and therefore the product liability statute of limitations against Quaker expired three years after the "date on which the plaintiff was injured".  If any of the instant victims were injured less than three years before filing suit, they might have a surviving claim.

Nevertheless, the Court did not remand the case for that determination because it determined that the product liability reform statute had already immunized Quaker from liability under the "sophisticated user" doctrine.  Even though the plaintiffs were not sophisticated users under the law (as they did not have "actual knowledge of the potential hazard or adverse effect"), the court held that the sale of the compound TO a sophisticated user, General Motors, eliminated any duty Quaker might have had to warn or instruct users such as the plaintiffs.  The Court held that the language of the statute granted immunity to Quaker if either the employer or the employee was a sophisticated user and did not require that both have knowledge of the risk. 

Sadly, this is yet one more example of how Michigan's rush to liability "reforms" over the past two decades has resulted in public policy choices that are of questionable wisdom.  If the plaintiffs are acknowledged to be "unsophisticated" and unaware of the risks of the product, isn't it wiser to require that manufacturers incorporate reasonable warnings and instructions into their packaging?  Sure, the employer or middle-man should warn these end-users, too, but in case they fail to act to protect innocent users, don't we want the sophisticated seller with knowledge of hazards to pass along appropriate information?  Seems like we should err on the side of recognizing a duty to warn innocent potential victims of the risks of your product, regardless of whether there may be a "sophisticated user" somewhere mid-stream in the retailing chain.

Thompson O’Neil, P.C.
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