ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Gibbons and Becker, Circuit Judges and Dumbauld, District Judge*fn*
Coriner Whitehead appeals from an order of the district court entering summary judgment against her. These claims arise out of Whitehead's contamination by lead particles caused by her exposure to lead during the course of her employment. This appeal requires that we determine whether suppliers of lead may be held liable under New Jersey law for the failure to warn employees of an industrial user of lead of dangers associated with lead contamination. We hold that the record reveals genuine issues of material fact relevant to Whitehead's claims on theories of strict liability and negligence. Accordingly, we will reverse the judgment of the district court and remand for further proceedings.
Coriner Whitehead was employed by Alpha Metals, Inc. ("Alpha") between 1950 and April of 1979. Alpha manufactures spooled solder by smelting and processing lead and tin. Whitehead claims to be suffering from lead encephalopathy, a form of lead poisoning, caused by her long-term exposure to lead in Alpha's plant.
Depositions on file indicate that Whitehead operated a "spooling machine" 25 to 30 feet from the point at which lead was delivered to the Alpha plant.*fn1 The machine is similar to a sewing machine, and uses a foot treadle to drive a spool on which solder wire is wound. Corrigan Dep., vol. 1, at 59. Lead arrived in the plant in bundles of 25 to 35 ingots, or "pigs," bound in rows of five, secured with steel strapping and packaged in polyethylene bags. Bailini Dep. at 33. Each bundle bore a lot number and an alloy designation stamped into the metal. Nordstrom Dep. at 19. The bundles were stored in an area adjacent to the "casting department." That department contained twelve "casting pots" used for smelting and casting lead and tin into "billets," or bricks of solder. Corrigan Dep., vol. 1 at 19.
A partition or wall separated the casting department from a "spooling" area in which Whitehead worked. The spooling area contained several extrusion presses used to form solder wire from billets, and nine spooling machines. Id. at 11, 16-18. Next to one extrusion press, and some 50 to 75 feet from Whitehead's spooling machine, were two "solder pots" containing molten solder. Bretts Dep. at 62-63. Employees fed wire from the extrusion presses into the spooling area where Whitehead and others wound it onto rolls. Partitions did not separate the extrusion and spooling areas. Id. at 62; Corrigan Dep., vol. 1, at 11.
A number of reports and depositions of Whitehead's expert witnesses are in the record. According to this expert testimony, lead particles might have reached the spooling area in several ways. Small amounts of airborne lead originated from vapors rising from molten solder in solder pots in the extrusion area. Bretts Dep. at 63-67. Airborne lead also emerged from the casting department, conveyed either through a doorway joining the casting and spooling areas, or up exhaust stacks and into the spooling area through windows or vents. Id. at 68-69. Metal "fines," or lead particles, were generated by a device used to remove loose debris from solder wire as it wound onto spools. These fines, according to Whitehead's expert, were capable of being blown about by a fan-driven space heater suspended from the ceiling near Whitehead's station, id. at 71-74, and may have been ingested by breathing. Finally although Whitehead wore gloves to protect her hands, acid and solder wire wore holes through her gloves regularly, requiring their replacement twice daily. In her deposition, Whitehead stated that her "hands used to peel a lot, see, the skin come off [my] hands." Whitehead Dep. at 20. Lead may have been absorbed through her hands or ingested inadvertently during meals or at other times.
Defendants St. Joe Lead ("St. Joe"), RSR Corp. ("RSR"), and Tonolli Corp. ("Tonolli") are suppliers of lead ingot used by Alpha in the manufacture of solder wire. Neither St. Joe nor Tonolli issued warnings to Alpha or its employees at any time concerning the dangers of working with lead. Welch Dep. at 33; Bailini Dep. at 19, 35. During Whitehead's employment, RSR also did not issue warnings to Alpha or its employees. RSR did, however, begin affixing warnings to shipments of fabricated lead products in November, 1979, and by 1982 had added those warnings to shipments of pig lead as well. Nordstrom Dep. at 21-22. An RSR sales manager indicated that company officials had discussed adding labels to pig lead as early as 1978. Id. at 47-48. RSR's 1982 warnings on shipments of lead ingot were similar to its 1979 warnings on fabricated products. Those warning labels, roughly four inches square in dimension, provided:
THIS PRODUCT CONTAINS LEAD DO NOT SMOKE OR EAT WHILE HANDLING WASH HANDS AFTER USE USE ONLY WITH ADEQUATE VENTILATION KEEP OUT OF REACH OF CHILDREN
RSR Ans. to Interrog., Jan. 19, 1982; Nordstrom Dep. at 23. The company also indicated that industrial users of lead had made inquiries to RSR about those warnings. Id. at 24.
In addition to affixing warning labels to shipments of lead ingot, RSR provided pamphlet warnings to its own employees. The 1977 RSR pamphlet explained the causes and symptoms of lead poisoning in lay terms, recommended means of reducing worker exposure to lead contamination, indicated to whom symptoms of lead poisoning should be reported, and asserted that "your employer must provide and you must wear suitable protective clothing such as coveralls, aprons, laboratory coats or work clothes, to prevent lead from getting on your skin." If "ill for any reason," the pamphlet enjoined, "ALWAYS tell your physician that you work with lead and return to work after an illness only upon his approval."*fn2 The RSR pamphlet was circulated only to employees of RSR, not to employees of firms to which RSR sold lead ingot.
Depositions on file gave conflicting indications of the extent to which Whitehead had knowledge during her employment of the dangers of lead contamination. An Alpha employee stated that Alpha "had advised its employees of the danger of working with lead" by 1972. Corrigan Dep., vol. 2, at 52. Other evidence suggested that Whitehead might have inferred that there were dangers associated with her employment. For example, between 1976 and 1979 Alpha administered blood tests to its employees, and periodically required each employee to wear a small air pump, for the purpose of testing for lead contamination. Thompson Dep. at 11-55; Whitehead Dep. at 55. Whitehead herself stated that a fellow employee, Jeannie Harris, had contracted lead poisoning early in the 1970s, and that Whitehead first became aware "that lead could make you sick" at that time. Whitehead Dep. at 60-61, 123.
Other evidence, however, suggested that Whitehead had not appreciated the dangers of working with lead. At the time of Jeannie Harris' illness, for example, company officials told Whitehead that Harris did not contract lead poisoning as a result of her work for Alpha. Id. at 69. Although Alpha officials tested for lead, they never informed their employees of these test results. Id. at 56; Corrigan Dep., vol. 1, at 75, 80-81. Similarly, although company officials explained that they were testing for lead, they did not explain "what the consequences might be if the air were found not to be good." Thompson Dep. at 54. The company neither posted warning signs nor held meetings to discuss lead dangers. Whitehead Dep. at 58-59. In addition, although Whitehead saw a number of physicians between 1971 and 1979 for the treatment of loud noises, headaches, blurred vision, and tension -- all potential symptoms of lead poisoning -- not until 1979 did any physician diagnose her condition as that of lead encephalopathy. Gibbs Dep. at 45. Whitehead's physician stated that he had first informed her of this diagnosis "sometime after June 18, 1979." Id. at 63.
Whitehead brought this action on April 3, 1981. The complaint pressed claims under strict liability for failure to warn, see Restatement (Second) of Torts § 402A (1965), and for the negligent failure to warn, id. § 388. Named as defendants were a number of lead suppliers, among them St. Joe, RSR, and Tonolli. Tonolli impleaded Alpha on June 15, 1981. On March 19, 1982, the district court granted summary judgment in favor of Alpha, reasoning that the New Jersey Workers Compensation Act barred any third-party claim for contribution against the employer. See Arcell v. Ashland Chem. Co., 152 N.J. Super. 471, 483-88, 378 A.2d 53, 59-62 (Super. Ct. 1977). On February 1, 1983, the district court granted summary judgment in favor of all remaining defendants.
The defendants advance a variety of arguments in support of the district court's grant of summary judgment. There can be no liability under section 402A, they argue, (1) because any exposure to airborne lead was the result of a "substantial alteration" to lead ingot by Alpha, for which the suppliers of lead ingot are not responsible; (2) because Alpha knew of the dangers of airborne lead, thereby relieving lead suppliers of a duty to warn; (3) because Whitehead knew of the dangers of lead at the time defendants shipped lead to Alpha, thereby relieving lead suppliers of a duty to warn; (4) because the dangers of lead poisoning are generally known; and (5) because, as a matter of law, the utility of warning labels on or accompanying lead ingots would be outweighed by their cost. Similar arguments are advanced against the claim of negligent failure to warn under section 388.
Moreover, defendants argue, any failure to warn did not proximately cause Whitehead's illness (1) because she knew of the dangers of airborne lead already; (2) because she would not have come into contact with warning labels; and (3) because, in any event, her illness was caused by exposure to lead before defendants supplied lead ingot to Alpha. Finally, Tonolli maintains that the action is time-barred by New Jersey's two-year statute of limitations because the New Jersey tolling provision -- which tolls the statute of limitations for actions against foreign corporations not licensed to do business in New Jersey -- is unconstitutional.
Before considering these arguments, we turn briefly to a review of the still-evolving New Jersey law of strict products liability. We then address whether, on this summary-judgment record, Whitehead has made out a prima facie case under sections 402A and 388. Lastly, we consider the defenses advanced by St. Joe, RSR, and Tonolli.
A. Strict Products Liability
New Jersey has adopted a variation on the so-called Wade-Keeton prudent-manufacturer test for strict products liability. See Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 834-38 (1973); Keeton, Product Liability and the Meaning of Defect, 5 St. Mary's L.J. 30, 37-38 (1973). As proposed by Dean John Wade, a product is "not reasonably safe" (or "not duly safe")*fn3 if a defendant with constructive knowledge of its dangerous condition would be negligent in putting it on the market. The defendant's negligence is to be measured by whether a reasonable person would conclude that the magnitude of the danger as it is proved at the time of trial outweighed the benefits of the product's design or the way in which it was manufactured. Wade, supra, 44 Miss. L.J. at 834; Keeton, supra, 5 St. Mary's L.J. at 38. Wade proposed that seven factors be weighed when assessing a product's risks and benefits:
(1) The usefulness and desirability of the product -- its utility to the user and to the public as a whole.
(2) The safety aspects of the product -- the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care in the use of the product.
(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or ...