• Massachusetts Supreme Judicial Court Formally Adopts "Sophisticated User" Doctrine as Affirmative Defense to Failure-to-Warn Claims
  • August 29, 2006
  • Law Firm: Nixon Peabody LLP - New York Office
  • On August 15, 2006, the Massachusetts Supreme Judicial Court ("SJC") offered more armor for manufacturers in the defense of product liability cases by expressly recognizing the "sophisticated user" doctrine as an affirmative defense for failure-to-warn claims. See Carrel v. Nat'l Cord & Braid Corp., 2006 Mass. LEXIS 538 (Aug. 15, 2006). Carrel resolves any uncertainty in the wake of Hoffman v. Houghton Chem. Corp., 434 Mass. 624 (2001), in which the SJC discussed the sophisticated user doctrine but did not formally adopt it.

    The Carrel decision

    In Carrel, the plaintiff was injured when a bungee cord manufactured by the defendant, National Cord & Braid Corporation ("National Cord"), recoiled and struck him in the eye while he was participating in a "zip line" course as part of his Boy Scout training. 2006 Mass. LEXIS 538 at *1. National Cord sold its bungee cord to the Boy Scouts through Project Adventure, an organization that specializes in assisting and equipping other organizations wishing to participate in adventure education courses. Id. at *6. At trial, the plaintiff asserted claims against National Cord for breach of implied warranty of merchantability and negligence, based upon a failure-to-warn theory. Id. at *16. National Cord defended the case on grounds that Project Adventure and the Boy Scouts were in the best position to provide warnings, because they knew more about the specific use that would be made of the bungee cord, the dangers associated with that use, and how to counteract those dangers. Id. Following an instruction on the sophisticated user doctrine, the jury returned a verdict for National Cord. Id. at *18.

    On appeal, the plaintiff argued that the judge erred in instructing the jury on the sophisticated user doctrine because the plaintiff was the relevant end-user, not Project Adventure or the Boy Scouts.

    In rejecting this argument,[1] the SJC formerly adopted the sophisticated user doctrine as an affirmative defense to failure-to-warn claims. The SJC explained that "the sophisticated user doctrine is an application of the established principle that a manufacturer may avoid liability for failing to warn someone of a risk or hazard which he appreciated to the same extent as a warning would have provided." Id. at *20. Further, "it is a corollary to the open and obvious doctrine," which "applies when a warning will have little deterrent effect and … allows the fact finder to determine that no such duty to warn was owed." Id. The SJC also emphasized that "relevant inquiry turns on the level of the end user’s level of sophistication." Id.

    Of additional note, Justice Cordy, writing for the SJC, reiterated the court’s holding in Hoffman, 434 Mass. at 637, that negligent failure to warn and failure to warn under breach of warranty are to be judged by the same standard. 2006 Mass. LEXIS at *21 n.12.[2] Based on its holding in Hoffman, the SJC held that not only is the "sophisticated user defense" an affirmative defense to actions for negligent failure to warn, but it is a viable defense against actions for failure to warn under a warranty theory as well. Id. at *21.


    The SJC’s adoption of the sophisticated user doctrine in Carrel is significant, as is the SJC’s treatment of the Boy Scouts, not the plaintiff, as the relevant "end-user." Nevertheless, some important questions remain. Carrel hinged on the propriety of the trial judge’s jury instructions. Therefore, it remains to be seen whether Massachusetts courts will be willing to employ the sophisticated user doctrine at the summary judgment stage, or whether they will be more inclined to treat the affirmative defense as a question of fact to be determined by the fact-finder.  

     [1] Among other reasons, the SJC concluded that the Boy Scouts and Project Adventure were the "end users" of the bungee cord because they were so characterized by the plaintiff’s experts during trial testimony and by the plaintiff’s attorneys during opening statements. Id. at *24.

    [2] In Massachusetts, a manufacturer of a product which the manufacturer knows or should know is dangerous is under a duty to give warnings or instructions of such dangers to persons who foreseeably will come into contact with the product. MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 135 (1985).