Reporter as Amicus Applies Restatement 3rd Duty Analysis to PCB Exposure Case

In Nishida v. Pharmacia Third Restatement of Torts Reporter Michael Green joins with his colleague Jon Cardi and several other torts professors as friends of the court  to persuade the Missouri Court of Appeals that a trial court misunderstood the Restatement and the applicable California law.   The trial judge concluded that the chemical company did not owe a duty of reasonable care to one exposed to its PCB's because the product uses and  type of harm plaintiff suffered (non-Hodgkins lymphoma) were not foreseeable to the manufacturer Monsanto (now known as Pharmacia).  Such particular determinations violate the essential thrust of the Restatement - and California law.

Green and Cardi, et al.  assert, in the amicus brief drafted by Texas appellate lawyer Brent Rosenthal that

The essential characteristic of a no-duty determination is that it applies to a specific category of factual scenarios and can be applied in similar cases without reference to the particular facts of those cases.  

Viewing the question of duty as a categorical determination rather than as a fact specific inquiry “also has the benefit of providing clearer rules of behavior for actors who may be subject to tort liability and who structure their behavior in response to that potential liability.”

The trial court held that persons exposed to PCB's in the waste disposal process were "bystanders", not persons whose exposure was "foreseeable or intentional".  Such a fact-sensitive determination intrudes on the jury's province - which is to determine the question of foreseaebility.  Instead the court preempted the jury's role of determining whether Monsanto - maker of over 99% of PCB containing products - should have foreseen and acted to protect those who would be exposed to the toxin at all points in the product life cycle - including disposal.

Students in my class who read the brief will note that two of the cases cited provided the facts for final exam questions. - gwc
h/t Torts Prof Blog
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