The United States District Court for the Southern District of West Virginia held in a recent decision that a supplier of vinyl chloride to make polyvinyl chloride may argue under West Virginia law that it had no duty to warn of the chemical’s toxicity because the worker’s employers were sophisticated users. Roney v. Gencorp, et al., No. 3:05-0788, 2009 U.S. Dist. LEXIS 80849 (S.D.W. Va. Sept. 4, 2009). The Court found that West Virginia would allow an application of the sophisticated user defense even though neither the West Virginia Supreme Court of Appeals nor the U.S. Court of Appeals for the Fourth Circuit had explicitly adopted the theory.
In Roney v. Gencorp, Roney’s family alleged that Roney’s exposure to vinyl chloride vapors while working at a West Virginia plant from 1965 until 1982 caused him to contract angiosarcoma—a form of liver cancer that killed him in 2003.
Plaintiffs alleged the chemical producers failed to warn plant workers about vinyl chloride’s toxicity and conspired with the plant’s owners to misrepresent the vinyl chloride’s safety. In defense, the chemical producers successfully argued they should be able to argue under West Virginia law that because the plant’s owners knew as much about the dangers of vinyl chloride exposure as the producers did, they were sophisticated users of the chemical and the producers did not have a duty to directly warn workers the hazards of working around vinyl chloride. The producers also successfully argued the bulk supplier defense applied because they provided vinyl chloride in bulk to the plant and had no easy way of providing warnings to Roney and that the plant, not the producers, had the burden to provide the warnings.
This is another victory for the sophisticated user defense in vinyl chloride exposure litigation. In August, the United States Court of Appeals for the First Circuit in Taylor v. The American Chemistry Council, et al., 576 F.3d 16 (1st Cir. 2009) held that the sophisticated user defense under Massachusetts law relieved several suppliers of vinyl chloride of a duty to warn a former polyvinyl chloride plant worker in Massachusetts.
