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riod prior to the accident, We moved for summary suppliers argued that they were entitled to
judgment on all of the plaintiffs’ claims, arguing judgment because, even if their respective
that under the “bulk supplier doctrine” our client warning programs were somehow inade-
had no legal duty to provide warnings to the plain- quate, the warnings the retailer received from
tiffs because it had provided the local retailer with our client were sufficient as a matter of law.
adequate warnings and had received reasonable
assurances via its supply contracts with the retailer TRIAL COURT DECISION
that the retailer would warn its own customers. Ultimately, the trial court issued its ruling
Our motion therefore argued that the retailer, not granting summary judgment to our client and
a midstream supplier, was in the best position to the remaining suppliers. The court provided
provide warnings and that a midstream wholesaler two rationale for its ruling.
had no duty to warn the retailer’s own customers;
that the retailer, not the midstream wholesaler, No duty to warn under the bulk supplier
had a commercial relationship with the landowner doctrine
to whom it made propane deliveries; and that the In its ruling, the court relied heavily upon
retailer, not the midstream wholesaler, had the Polimeni v. Minolta Corp., 227 A.D.2d 64 (3rd
ability to determine where and to whom propane Dept. 1997), and other cases cited in the Po-
was be delivered. In addition, the motion demon- limeni decision. The Polimeni court included
strated that the local retailer had a long history in this formulation of the bulk supplier doctrine:
the propane business and had worked with outside
consultants to develop its own customer warning Thus, where a product, such as a gas or liquid,
program. Further, we also argued that, even if it is sold in bulk with the contemplation that
did have a duty to warn, our client satisfied that
such will be repackaged and resold by the
LEGAL UPDATE al basis to the retailer. To support the bulk supplier will have satisfied its duty to act reasonably
duty by providing voluminous warnings on an annu-
manufacturer’s distributee, the manufacturer
defense, our client relied upon its supply contracts
if it adequately warns the distributee of the
with the retailer, which included the retailer’s ac-
risks and dangers associated with the use
knowledgment that it was an experienced retailer,
of its product (see, e.g., Donahue v. Phillips
was familiar with the properties and characteristics
Petroleum Co., 866 F.2d 1008; Manning v.
of propane, had received our client’s warning ma-
terials, and had its own customer warning program
Co., 148 Cal App.3d 444; Jones v. Hittle Serv.,
in place. Our motion also provided the court with Ashland Oil Co., 721 F.2d 192; Groll v. Shell Oil
219 Kan. 627).
copies of over 300 pages of warning and consumer
education materials that our client had provided The bulk supplier doctrine is premised upon
annually to the retailer in the seven years before the theory that the immediate distributee
the accident, along with other evidence that docu- is in a better position to warn the ultimate
mented those materials being mailed to our client’s consumer of the dangers associated with the
customers. Those materials, comprised largely of finished product and, further, that to require
literature produced by the National Propane Gas the bulk manufacturer to issue warnings
Association, the Propane Energy Research Coun- through the entire chain of distribution would
cil (PERC), and propane industry leaders, included be too onerous a burden.
multiple warnings. Our motion also demonstrated Polimeni, 227 A.D.2d at 66. The court re-
how the warnings addressed each and every failure jected plaintiffs’ argument that the doctrine
to warn alleged by plaintiffs. required the manufacturer to establish that
The other midstream suppliers also moved for it is unduly burdensome for it to provide
summary judgment. The motions filed by the other warnings directly to end users. According to
suppliers highlighted the differences in each mid- the court, the dispositive issue on the bulk
stream supplier’s warning program. One whole- supplier defense was whether the warnings
saler’s mailings consisted of one or two consumer each defendant provided to the retailer were
brochures, another’s was a single mailing consisting adequate.
of a material safety data sheet, and the third de- Even though the court acknowledged that the
fendant had no mailing program at all. Despite the adequacy of warnings is a question of fact in
differences in the quantity of mailings, the other
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