This article surveys the development of products liability law in West Virginia and examines potential defenses available. In 1979, West Virginia first adopted strict liability in tort and products liability with the Morningstar v. Black & Decker, 253 S.E.2d 666 (W. Va. 1979) decision. The Supreme Court of Appeals embraced the rule articulated in Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963), permitting recovery in a tort product liability case where a defective product cause personal injury. Thus, rejected the “unreasonably dangerous” rule espoused by § 402A of the Restatement (Second) Torts. These cases fall into three categories: design defectiveness, structural defectiveness and use defectiveness arising out of the lack of, or inadequacy of warnings, labels and instructions.
The general test for establishing strict liability in tort is “whether the involved product is defective in the sense that it is not reasonably safe for its intended use.” West Virginia adopted the reasonably prudent manufacturer’s standard, taking into account the general state of art manufacturing process, including design, labels and warnings (as they relate to costs) at the time the product was created. Intended use was defined as all uses a “reasonably prudent person might make of the product, having in mind its characteristics, warnings and labels.” The Morningstar opinion rejected the Rylands v. Fletcher Doctrine (intrinsically dangerous activities or conditions will result in liability even without proof of negligence), holding that the product, if safely made, in a product liability case is dangerous only by virtue of defect.
Four years after Morningstar, Ilosky v. Michelin Tire Corp., 307 S.E.2d 603 (W. Va. 1983) held that plaintiffs will not be required to select a single theory of liability to submit to a jury. Rather, the court elected to allow multiple theories so that the plaintiff would not have to forego a strict liability cause of action. Specifically, the court lists strict liability, negligence and warranty as available theories of liability on the basis that each contains different elements which a plaintiff must prove.
Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W. Va. 1982) answered three certified questions from the U.S. District Court for the Southern District of West Virginia - extending application of strict liability in tort to property damage; allowing commercial plaintiffs to recover under strict liability; and providing for comparative negligence as a defense. The justification provided by the court for extending recovery to property damage was based on jurisdictions adopting the Greenman approach and Restatement approach, both of which allow for recovery for damage to property. Property damage due to a defective product, resulting from “a sudden calamitous event” is recoverable under strict liability. However, damages based on a “bad bargain” are not recoverable in West Virginia. Further, the court held strict liability may not be used to recover lost profits based on Seely v. White Motor Co., 403 P.2d 145 (Cal. 1965) (consequential damages such as lost profits must be recovered on a warranty action).
West Virginia does not distinguish between commercial and private plaintiffs regarding recovery under a strict liability cause of action. Star Furniture held that a commercial retailer, in addition to a private consumer, may recover under a strict liability cause of action. Because strict liability places an obligation on manufacturers, sellers and distributors to provide safe products, the fact that the defect caused harm before purchase by a private consumer should not relieve liability.
West Virginia product liability cases acknowledge comparative negligence as a defense to strict liability causes of action, and according to the U.S. District Court for the Southern District of West Virginia, the bulk supplier, open and obvious, and sophisticated user defenses would also be acknowledged. Star Furniture’s answer to the third certified question provides for comparative negligence to reduce a plaintiff’s award in strict liability actions. Because strict liability assumes that products placed in the stream of commerce are safe, the plaintiff’s negligence must be more than a failure to inspect.
In Roney v. Gencorp, 2009 U.S. Dist. LEXIS 80849 (S.D. W.Va. 2009) the U.S. District Court for the Southern District of West Virginia held that West Virginia would adopt the open and obvious defense to products liability cases if proper facts were developed to establish the defense. The rationale for the court’s conclusion was based on West Virginia’s adoption of the open and obvious defense in premises liability cases coupled with the proposition that there is no duty to warn of obvious dangers in products.
The court also held that West Virginia would likely adopt the sophisticated user defense based on dicta contained in the Ilosky opinion and on the reasoning in Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir. 1985) (applying Virginia law) and Willis v. Raymark Industries, Inc., 905 F.2d 793 (4th Cir. 1990) (applying Virginia law). Oman and Willis focused heavily upon comment n, considering a six-part balancing test to determine whether a supplier must warn independent of any employer’s duty to warn. The manufacturer must show that it knew the supplier was sophisticated and that this knowledge translates into reasonable reliance. The reasoning in both Oman and Willis relied heavily on the provisions of the Restatement (Second) of Torts, specifically comment n. The District Court postulated that the Fourth Circuit’s decisions would provide West Virginia with strong guidance on how comment n would apply within the state, ultimately holding the sophisticated user defense would be adopted.
Further, the District Court held that the bulk supplier defense would be accepted by West Virginia. The bulk supplier defense considers the burden on the supplier if the supplier is required to directly warn all users. Like the sophisticated user defense, the bulk supplier defense relies upon the Restatement. The District Court held that since both defenses are grounded in comment n of Restatement § 388, that West Virginia would likely adopt both in its application of comment n.
West Virginia, however rejects the learned intermediary doctrine – relieving drug manufacturers from liability for failure to warn of a drug’s dangers if adequate warnings were provided to the patient’s physician. State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W.Va. 2007) rejected this defense after considering the history of the doctrine and the state of the pharmaceutical industry. Today the pharmaceutical industry engages in more direct-to-consumer advertising, which did not exist at the time the learned intermediary doctrine was implemented.
In November of 2009, West Virginia liberalized its statute of limitations for tort actions in Dunn v. Rockwell. A five-part test was introduced, which makes the statute of limitations defense largely fact- specific, which will usually require a jury determination. Additionally, the decision modified the “discovery rule” by requiring the plaintiff’s actual or constructive knowledge to be applicable to the elements of every tort claim asserted. This decision will certainly impact product liability cases in West Virginia.