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From Products Liability Law Daily, February 22, 2019

Failure to read gauge guard warnings negates challenges as to adequacy of acid permeability warnings

By Pamela C. Maloney, J.D.

An industrial machine purchaser’s failure to read the warnings that came with a gauge guard installed by the seller absolved the guard manufacturer of any failure to warn about the danger of acid permeability, despite outstanding issues as to the adequacy of those warnings.

Although there were genuine issues of material fact as to whether the manufacturer of a gauge guard that had been installed on an Asphalt Emulsion System, Continuous Injection Process machine (CIP) had failed to provide adequate warnings regarding the acid permeability of the diaphragm designed for use with the guard, as well as whether the gauge guard manufacturer’s warning duty had been negated by the sophisticated user and/or the learned intermediary doctrines, the fact that the purchaser had failed to read the warnings provided with the gauge guard was sufficient, as a matter of law, to overcome those issues, the U.S. District Court for the Middle District of Georgia determined, granting that gauge guard manufacturer’s motion for summary judgment (Reeves Construction Co. v. Hayward Industries, Inc., February 21, 2019, Self, T).

Reeves Construction Co., a manufacturer of asphalt paving and other materials, purchased a CIP from Dalworth Machine Products. After the purchase, but prior to use, Dalworth installed on the CIP a gauge guard that had been manufactured by Hayward Industries, Inc., in order to protect the CIPS’s pressure gauge from corrosive or otherwise damaging fluids. Six years after Reeves purchased the machine, the guard’s diaphragm component, which had been manufactured by DiaCom Corp. using Viton, a fluoropolymer, failed as a result of the continuous permeation of hydrogen chloride (the gaseous form of undissolved hydrochloric acid) through the Viton diaphragm over time, which reacted with the water on the other side of the diaphragm to create hydrochloric acid, which corroded the stainless-steel parts of the pressure gauge to which the gauge guard had been attached. The CIP leaked approximately 30 gallons of hydrochloric acid throughout Reeves’ facility, destroying the CIP and part of the building in which the machine had been housed. Reeves filed a lawsuit against Hayward and DiaCom, alleging that the approximately $1.8 million in damages to its property from the leak were proximately caused by the manufacturers’ failure to warn of the ability of acids to permeate through the diaphragm in the gauge guard. Before the court was Hayward’s motion for summary judgment.

Foreseeable use. Explaining that Hayward had a duty to warn of reasonably foreseeable facts that would make its gauge guards dangerous, the court concluded that the evidence presented a question of fact as to whether it was foreseeable to Hayward that hydrochloric acid could permeate the diaphragm used in the guard and corrode the stainless-steel components of the pressure gauge located on the other side of the diaphragm. Hayward had marketed the Viton diaphragms as having very low permeability characteristics and asserted that DiaCom had made its diaphragms for use in Hayward’s gauge guards in accordance with design and material specifications provided by Hayward. A Chemical Resistance Guide published by Hayward indicated that hydrochloric acid with concentrations ranging from 10 to 37 percent was deemed to have no effect when tested on Viton at an ambient temperature of 70 degrees Fahrenheit. Other literature published by Hayward stated that its gauge guards were intended to isolate and protect gauges from the corrosive process in piping systems. From this evidence, a jury could conclude that Hayward had constructive knowledge of Reeves’ use of the gauge guard and the hazards arising from that use. Therefore, summary judgment could not be granted on the ground that the use was not foreseeable.

Sophisticated user doctrine. Hayward had argued that any general duty to warn of the hazards of using its gauge guards with hydrochloric acid were negated by Reeves’ sophistication in using hydrochloric acid. The legal premise that absolves a manufacturer of the duty to warn a knowledgeable user requires that the user be well-versed in the product that it was using and asks whether the user was aware of the danger it faced. Reeves conceded that it was a sophisticated user of hydrochloric acid given its prevalence in the asphalt emulsion industry, and it could be presumed that this sophistication led to the knowledge that stainless steel could be corroded by hydrochloric acid, especially given a prior incident involving acid corrosion in the stainless-steel pipes of the CIP at Reeves’ sister plant.

However, because the court had determined that the hazard in this case was the combination of hydrochloric acid with a permeable barrier and stainless steel, Hayward had to show that Reeves was a sophisticated user of all of these products in order to demonstrate that Reeves was aware of the danger it faced. There was no evidence that a member of the asphalt emulsion profession would know that hydrochloric acid could permeate a Viton diaphragm, particularly when the entire purpose of the gauge guard and its components was to resist corrosive liquids and keep them away from corrodible machinery. Indeed, the undisputed evidence showed that permeation and the characteristics of fluoropolymers generally were unknown to the asphalt emulsion profession. Thus, there remained a question of fact as to whether Reeves knew of the characteristics of the gauge guard components, which were firmly within Hayward’s expertise, or of the permeability of Viton, which was arguably within Hayward’s knowledge (actual or constructive), the court concluded, finding that summary judgment was inappropriate on Hayward’s sophisticated users defense.

Assumption of risk. The court also found that it could not be determined, as a matter of law, that Reeves had assumed the risk of any danger arising from the alleged lack of warnings about the permeability of the diaphragm because there was no evidence that Reeves possessed actual knowledge of that danger.

Learned intermediary doctrine. Nor couldHayward rely on the learned intermediary doctrine to cut off any warning duty it might have owed to Reeves. According to Hayward, the seller of the CIP who had installed the Viton diaphragm on the machine was knowledgeable about Hayward’s gauge guards by virtue of having used the guards on numerous occasions and had repeatedly asked Hayward’s distributor whether the gauge guard model installed on the CIP was appropriate for use with high-concentration hydrochloric acid. These contentions did not establish any knowledge on the part of the seller as to permeation or to the fact that the gauge guards would not keep hydrochloric acid completely away from stainless steel. Thus, summary judgment could not be granted on this issue.

Misuse or neglect of product. Hayward also argued that Reeves’ failure to perform preventive maintenance during the five years that elapsed between the installation of the CIP and the hydrochloric acid leak relieved Hayward of any general duty to warn as a matter of law. According to the court, the evidence indicated that the only method of maintaining the gauge guard was to watch for external leaks or erratic readings from a gauge attached to the guard, which the record showed was done by Reeves’ employees on a daily basis. Given this evidence, a jury could find that Reeves adequately had maintained the CIP and, thus, Hayward was not entitled to summary judgment on this argument.

Failure to read warnings. Although there were outstanding issues of fact that required jury resolution, the court granted Hayward’s motion for summary judgment on the ground that Reeves had failed to read the warnings actually provided with the gauge guard. Georgia courts have recognized that the failure to read given warnings barred a claim based on the inadequate content of those warnings because, even if the warnings were inadequate, the plaintiff would not have seen or acted in accordance with them to avoid the danger.

The undisputed evidence showed that Hayward had included an installation operation and maintenance instruction sheet with every guard it shipped and that, in this case, the guard had been shipped directly to Reeves for installation by Dalworth. Reeves offered no evidence that any of its employees had read the instructions provided but instead argued that the instruction sheet amounted to a disclaimer of responsibility rather than a warning. A review of the instruction sheet showed that while the first two statements appeared to be disclaimers, the remaining seven statements provided warnings regarding the dangers associated with use of the guard, including permeability. Because Reeve’s failed to provide evidence that created an issue of material fact as to whether it had read the given warnings, Hayward was entitled to summary judgment on the failure to warn claim.

The case is No. Civil Action 5:16-cv-00329-TES.

Attorneys: David Michael Bessho (Cozen O'Connor PC) for Reeves Construction Co. Tawana Blocker Johnson (Wilson Elser Moskowitz Edelman & Dicker, LLP) for Hayward Industries Inc. Ollie M Harton (Hawkins Parnell & Young, LLP) for DiaCom Corp.

Companies: Reeves Construction Co.; Hayward Industries Inc.; DiaCom Corp.

MainStory: TopStory WarningsNews DesignManufacturingNews DefensesLiabilityNews IndustrialCommercialEquipNews GeorgiaNews

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