Informed Intermediary Doctrine Not Applicable to Industrial Employer and Its Employees

In Rickicki v Borden Chem., 159 AD3d 1457 (4th Dept. 2018), the Appellate Division Fourth Department, declined to apply the sophisticated intermediary doctrine—also referred to as the informed intermediary or knowledgeable intermediary doctrine—in an industrial employer-employee context.

Under the sophisticated intermediary doctrine, a manufacturer is protected from an end user's breach of the strict products liability cause of action for failure to warn if either 1) the manufacturer communicates a sufficient warning to an intermediary relative to the end user or 2) if the intermediary is fully knowledgeable about the risks of the product and is in the best position to warn the end user or take appropriate safety measures. This doctrine has primarily been applied to prescription drugs and medical devices where the intermediary is a physician and the end user is a patient.

In Rickicki, the plaintiffs-workers sought damages for personal injury as a result of exposure to silica dust while working for Dexter Corporation, Hysol Division (Dexter). The defendant-manufacturers moved for summary judgment based on proof that the plaintiffs' employer, Dexter, was knowledgeable about the hazards posed by silica exposure and received proper warnings about them, thus qualifying them as a sophisticated intermediary. The defendants argued that this served as a complete defense to the failure to warn claim.

The defendants relied on case law holding that a manufacturer of prescription medication or medical devices satisfies its duty to warn by communicating a proper warning to a physician, not a warning to a patient. The court agreed and granted summary judgment on this basis. The Fourth Department, however, reversed.

The Fourth Department noted that case law and legal treatises establish that providing a warning to an end user's employer is not always a complete liability defense, especially where the danger posed is significant and the methods for warning the end user are not difficult to incorporate. In Rickicki, the injured workers directly handled bags of silica that did not contain warnings. The court found that the inclusion of warnings would have only imposed a minimal burden. Consequently, the sophisticated intermediary doctrine did not apply.

The Fourth Department went further, finding that the doctrine generally does not apply in an employer-employee context (at least with respect to the facts at issue). The court observed that the doctrine primarily applies to prescription drugs and medical devices and, thus, is predicated on physician-patient privilege. Since Rickicki involved an industrial employer and its workers, which did not implicate the physician-patient privilege, the doctrine did not apply.

Since it was Dexter, not its workers, that was allegedly knowledgeable about the dangers of silica dust inhalation, the Fourth Department declined "to recognize the sophisticated intermediary doctrine on the facts . . . and [concluded] that there [was] a triable issue of fact whether defendants provided adequate warnings to the injured workers."

Products liability defense counsel should be mindful of the limited application of the sophisticated intermediary doctrine when defending manufacturers of products sold to companies that may pose a danger to their workers if not properly warned. Conversely, plaintiffs' counsel should be aware that the doctrine will likely not hinder a failure to warn claim arising out of the industrial employer-employee context.