nd that such steps rose "above the level of a mere disclaimer" but need not have gone so far as to have required Union Carbide to "second-guess [Conwed's] actions in carrying out its own duty to warn." Hegna v. E.I. du Pont de Nemours Co., 806 F. Supp. 822, 828-29 (D.Minn. 1992) (quoting Forest v. E.I. DuPont de Nemours Co., 791 F. Supp. 1460, 1467 (D.Nev. 1992)); see also Donahue v. Phillips Petroleum Co., 866 F.2d 1008, 1012 (8th Cir. 1989) (finding that under Missouri law, the "bulk supplier must provide adequate instructions to the distributor next in line or ascertain that the distributor is informed as to the nature of the product and is in a position to convey the information so that the ultimate consumer is apprised of the dangerous propensity of the product" and the sophisticated user doctrine applies "when the user of a product knows or reasonably may be expected to know of a particular danger"); Hegna v. E.I. du Pont de Nemours Co., 825 F. Supp. 880, 884 (D.Minn. 1993); Todalen v. U.S. Chem. Co., 424 N.W.2d 73, 78-80 (Minn.App. 1988) (rejecting sophisticated user defense and finding that bulk supplier had a duty to warn not only the employer but also the ultimate user employee), overruled in part on other grounds, Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 62 (Minn. 1993).

Goodbar v. Whitehead Bros., 591 F. Supp. 552, 557 (W.D.Va. 1984) (construing section 388(c) and comment n), aff'd, 769 F.2d 213 (4th Cir. 1985)). Examining those factors, the court first concludes that as a matter of public policy, the connection between Hegna's injury and DuPont's actions is not too remote to impose a duty to warn because there is evidence that DuPont was aware of both Vitek's intended use and the potential risks involved in using PTFE for such implants.Cf. Todalen v. United States Chem. Co., 424 N.W.2d 73, 78-80 (Minn.Ct.App. 1988) (rejecting sophisticated user defense and finding that bulk chemical supplier had duty to warn not only employer but also the ultimate user, an employee, where it was unclear whether the employee had adequate knowledge of dangers involved in the misuse of supplier's product). The court further determines that the magnitude of the risk involved in using PTFE for implants was substantial, that DuPont's reliance on Vitek as an intermediary may have been unreasonable and that injuries such as Hegna's may have been the direct and reasonably foreseeable consequence of using PTFE in such a manner.

It also has been recognized by our court of appeals. Todalen v. U.S. Chem. Co., 424 N.W.2d 73, 79 (Minn.App. 1988), overruled on other grounds by Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54 (Minn. 1993).

This reduced verdict, in Conwed's model, may be recovered up to the cap of benefits paid. Union Carbide relies on a competing principle in Minnesota law, namely, that third-party tortfeasors should not be forced to bear the costs of negligent employers. It is a "basic proposition" in Minnesota decisions that all parties must pay according to their share of fault, Todalen v. United States Chemical Co., 424 N.W.2d 73, 82 (Minn.Ct.App. 1988), and tortfeasors are liable for damages "commensurate with their own relative culpability." Kempa, 370 N.W.2d at 421.

South Dakota's sister state in the Eighth Circuit, Minnesota, agrees with the Hall court's analysis on this issue. In Todalen v. U.S. Chemical Co., 424 N.W.2d 73 (Minn. Ct. App. 1988), the court noted that Minnesota law recognizes "learned intermediate theory in the area of prescription drug liability." Id. at 79.

That position takes Conwed's fault into account, which Lambertson requires, but does not precisely describe the appropriate procedure under Minnesota law. Union Carbide is correct in asserting that, following a Naig settlement, the employer's contribution obligation is based on the amount of benefits paid and payable rather than on the amount of the verdict. Todalen v. United States Chem. Co., 424 N.W.2d 73, 81 (Minn.Ct.App. 1988), overruled in part on other grounds. Tyroll v. Private Label Chems. Co., 505 N.W.2d 54, 62 (Minn. 1993).

1970); Lhotka v. Larson, 238 N.W.2d 870 (Minn. 1976); see also Todalen v. U.S. Chem. Co., 424 N.W.2d 73, 79 (Minn.Ct.App. 1988), overruled on other grounds by Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54 (Minn. 1993).

Wellons's theory is based on the "sophisticated user" or "learned intermediary" exceptions to the duty to warn. Id. at 885; see In re TMJ Implants Prods. Liab. Lit., 872 F. Supp. 1019, 1029 (D. Minn. 1995); Todalen v. U.S. Chemical Co., 424 N.W.2d 73, 79 (Minn.Ct.App. 1988),overruled in part on other grounds. Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 62 (Minn. 1993).

As a general rule, whether a party has a legal duty to warn is a question of law for the court. Germann v. F.L. Smithe Machine Co., 395 N.W.2d 922, 924 (Minn. 1986); Todalen v. U.S. Chemical Co., 424 N.W.2d 73, 78 (Minn.Ct.App. 1988). The existence of this duty, however, depends upon the awareness or knowledge of the plaintiff.

The safeguards in place under the learned intermediary doctrine, namely, the highly personal doctor-patient relationship and the fact that the product can be obtained legally only from a physician, simply do not exist under the sophisticated user doctrine. See, e.g., Menschik v. Mid-America Pipeline Co., 812 S.W.2d 861, 864 (Mo.App. 1991) (rationale for learned intermediary exception cannot be stretched to apply to bulk seller of chemicals); Todalen v. U.S. Chemical Co., 424 N.W.2d 73, 79 (Minn.App. 1988) (medical context of learned intermediary doctrine contains significant safeguards to ultimate user that are not present in industrial workplace), overruled on other grounds, Tyroll v. Private Label Chemicals, Inc., 505 N.W.2d 54, 62 (Minn. 1993).