This аppeal involves disputes between the defendant and third-party defendants in a products liability suit arising out of an alleged failure to provide adequate warnings. Technical Research Company (TRC), the original defendant in the products liability suit, appeals the district court’s dismissal of Ashland Chemical Company, Columbia Paint Company, and Custom Furniture and Cabinets, Inc., third-party defendants, and appeals summary judgment in favor of Eastman Chemical Products, Inc., another third-party defendant. Eastman also challenges the dismissal of the other third-party defendants. We deny Ashland’s and Columbia’s appellate motions to dismiss because the unique circumstances of this case compеl us to excuse Eastman’s failure to file a formal notice of appeal. Since TRC filed a third-party complaint only against Eastman, however, it lacks standing to appeal the dismissals of the other third-party defendants and we grant those defendants’ motions to dismiss as to TRC’s appeal.
On the merits of the appeal, we find that summary judgment in favor of Eastman on TRC’s claims was inappropriate because factual issues pertaining to the adequacy of Eastman’s warnings remain to be decided. We also find that the district court erred in dismissing Eastman’s third-party complaints against Ashland, Columbia, and Custom with prejudice. We therefore reverse and remand to the district court in ordеr to determine the adequacy of Eastman’s warnings.
FACTS
In 1976, Thomas Bryant and his wife filed a products liability suit against TRC in Idaho state court. Bryant claims that he was exposed to a dangerous chemical in one of TRC’s products during 1973 and 1974, and consequently contracted peripheral neuropathy.
The chain of distribution of the MBK and the lacquer thinner was as follows:
Bryant became ill in 1974. In 1975, his condition was diagnosed as neuropathy and traced to MBK exposure. After a long period of recovery, Bryant returned to work in 1977. Bryant’s initial lawsuit was brought only against TRC. He claimed that the warnings TRC provided with T-6 were inadequate; therefore the product was defective. He sought damages of $557,000. TRC brought a third-party complaint for contribution and indemnity against the MBK manufacturer, Eastman. Eastman removed the case to Idaho federal district court based on diversity jurisdiction. 28 U.S.C. §§ 1332, 1441.
In federal court, Eastman brought third-party complaints against its distributor, Ashland, and the retailer, Columbia. After extensive discovery, Eastman brought a similar complaint against the employer, Custom. The plaintiff Bryant filed an amended complaint naming Eastman, Ash-land, Columbia and TRC as direct defendants. Significantly, TRC never filed complaints against Ashland, Columbia or Custom. These three defendants were only in the lawsuit because of Eastman’s third-party complaints and Bryant’s amended complaint.
The parties filed several motions for summary judgment, dismissal, and judgment on the pleadings. Eastman, TRC and Columbia submitted affidavits regarding their knowledge of the link between MBK and neuropathy, and the extent of the instructions and warnings provided with the product. In support of its motion for summary judgment, Ashland filed a copy of its answers to TRC’s interrogatories. These documents indicate disagreement over the extent and specificity of Eastman’s warnings.
On June 14,1979, the district court granted summary judgment to Eastman on TRC’s third-party complaint. The court found that Eastman had provided an adequate warning to Ashland as a matter of law, and was not required to provide warnings to other members in the chain of distribution. The other defendants named in Eastman’s third-party complaint, Ashland, Columbia and Custom, were dismissed because they were brought into the lawsuit
TRC filed a notice of appeal on August 8, 1979.
I. ASHLAND’S AND COLUMBIA’S MOTIONS TO DISMISS THE APPEAL
After TRC filed this appeal, Ashland and Columbia filed motions to dismiss. On March 3, 1980, a motions panel of the court referred the issue to this panel. We must first determine whether Eаstman’s failure to file a timely notice of appeal requires dismissal of Ashland and Columbia. We must also decide whether TRC has standing to appeal the district court judgments in favor of Ashland and Columbia.
The unique posture of this case raises difficult questions of appellate procedure and jurisdiction. In substance, Bryant is attempting to recover from any or all of the parties in the chain of distribution, with the exception of his employer, Custom.
Eastman’s opposition to the motions to dismiss raises a difficult issue. The Federal Rules provide for protective or cross-appeals within 14 days of the first notice of appeal. Fed.R.App.P. 4(a)(3). It is clear that Eastman was not precluded from filing a notice of appeal even if the district court judgment can be characterized as entirely favorable. As this court has stated, “[t]he risk that [the cross-appellants] might become aggrieved upon reversal on the direct appeal is sufficient.” Hilton, v. Mumaw,
Although an initial notice of appeal is mandatory and jurisdictional,
Eastman apparently believed that TRC’s notice of appeal was sufficient to bring all parties before this court. It seeks to tag onto TRC’s notice of appeal, although TRC itself did not have standing to appeal. Eastman has clearly evidenced an intent to appeal through its participation, filing motions to dismiss TRC’s appeal and actively opposing Ashland’s and Columbia’s motions. See Rabin,
Trial on the underlying question of liability for Bryant’s injuries would be partially frustrated if Ashland and Columbia were not participants. As we discuss later in this opinion, the central issues the jury may have to face on remand are the adequacy of Eastman’s warnings to Ashland, the adequacy of Ashland’s warnings to Columbia and others in the chain of distribution, and the duty Eastman owes beyond its immediate vendee, Ashland. Adversary representation of Ashland and Columbia are important for a complete and equitable determination of liability.
This factor alone, however, would not persuade us to relieve Eastman from its failure to file a notice of appeal. We are also concerned that Eastman may have believed that an appeal was not necessary, given the language in the district court’s memorandum decision. The court found that third party plaintiff Eastman was entitled to summary judgment, “[ajccordingly, Eastman’s third party complaint against Ashland, Columbia Paint and Custom Furniture is appropriately dismissed.” This suggests that summary judgment in favor of Eastman renderеd the third-party complaint moot; there is no indication that the district court ever considered the merits of Eastman’s indemnity and contribution claims against the third-party defendants. In its initial order, the district court merely stated that Eastman’s complaint was dismissed. In its amended order issued two weeks later, however, the court dismissed Eastman’s complaint with prejudice. If the basis for the dismissal was that the third-party complaint was moot after summary judgment for Eastman, dismissal with prejudice was error, because in the event of reversal of the summary judgment in favor of Eastman the dismissal with prejudice contemplated a decision on the merits of Eastman’s claims. Federal courts are without power to determine the merits of moot claims. DeFunis v. Odegaard,
Finally, we note that the interlocutory nature of this appeal provides some justification for Eastman’s failure to file a notice of appeal. The district court certified an interlocutory appeal, finding no “just reason for delay.” Fed.R.Civ.P. 54(b), see note 3 supra. The scope of this certification,
We must emphasize the narrow scope of our holding. It will be the unusual case where an appellee that fails to file a notice of appeal can challenge unfavorable aspects of a judgment. The unique circumstances of this case, however, justify the exercise of our discretionary power to allow Eastman to tag onto TRC’s timely notice of appeal.
TRC’s notice of appeal presents a more straightforward issue. To have standing to appeal, a party must be “aggrieved by the district court order.” United States v. State of Washington, Department of Fisheries,
Since we find it necessary to reverse the district court’s grant of summary judgment to Eastman against TRC, the dismissal of Eastman’s third-party claims against Ash-land, Columbia, and Custom is likewise reversed.
II. SUMMARY JUDGMENT FOR EASTMAN
A. The Applicable Law
This case was removеd to the Idaho federal court based on diversity of citizenship. Therefore the district court was required to apply Idaho’s substantive law of products liability in ruling on Eastman’s motion for summary judgment against TRC. Wirth v. Clark Equipment Co.,
Idaho applies strict products liabili- . ty, adopting the approach in the Restatement (Second) of Torts § 402A (1965).
Failure to warn results in liability only in situations where the danger is not obvious to the user, and the manufacturer had reason to believe that the danger might result from a foreseeable use of the product. Mico Mobile Sales & Leasing, Inc. v. Skyline Corp.,
In granting summary judgment for Eastman, the district court found that:
there is no dispute that Eastman sent warnings to its immediate buyer, Ash-land, and that Ashland acknowledgеs awareness of the dangers of MBK. It follows from these facts, and the Court finds as a matter of law, that Eastman’s warnings to Ashland were adequate. The Court further finds that Eastman, as a supplier of MBK in bulk quantities by tank truck, is only required to give adequate warning to its immediate buyer.
Summary judgment was proper only if there were no genuine issues of material fact and Eastman was entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Schlette v. Burdick,
B. Eastman’s Warning to Ashland
After a careful review of the record, we conclude that summary judgment in favor of Eastman was inappropriate. The record indicates that there are disputed issues of material fact regarding the adequacy of Eastman’s warnings to Ashland. Although Ashland has acknowledged awareness of MBK dangers, Eastman is not absolved from any duty it had to notify Ash-land of additional MBK dangers as it became aware of them. Moreover, any acknowledgment on Ashland’s part does not
Specifically, TRC points to several unresolved issues regarding Eastman’s warnings to Ashland. It is not disputed that Eastman always provided its customers with warnings and handling instructions for MBK.
The adequacy of a warning under products liability is a question of fact to be left to the jury. Dougherty v. Hooker Chemical Corp.,
C. Eastman’s Duty to Wаrn Others in the Chain of Distribution
Since trial will be required, we find it advisable to address another issue. The district judge concluded that as a bulk manufacturer, Eastman’s only duty was to warn its immediate vendee. Thus the court ignored the factual disputes regarding the extent of the warning TRC and others in the chain of distribution received.
In examining interpretations of section 402A from other jurisdictions, we note that except in the specific relationships discussed below, the adequacy of a bulk manufacturer’s warning to those other than its immediate vendee is usually held to be a jury question. The proposition that a bulk manufacturer has a duty to warn only its immediate vendee, however, draws some support from a Kansas case interpreting the negligence provision of the Restatement, section 388. Jones v. Hittle Service, Inc.,
who sells ... to a distributor in bulk fulfills his duty to the ultimate consumer when he ascertains that the distributоr to whom he sells is adequately trained, is familiar with the properties of the gas and safe methods of handling it, and is capable of passing on his knowledge to his customers.
Id. Even the Jones court, however, recognized some duty to insure that the purchaser is capable of passing the warning on to others in the distribution chain.
A similar approach has also been adopted in cases holding that a bulk manufacturer can rely on an employer-purchaser to pass on warnings to employees, Younger v. Dow Corning Corp.,
In contrast, a recent Arizona case, in a factual situation quite similar to the instant case, holds that a bulk seller or manufacturer is not relieved from its duty to warn later purchasers merely because it warned the immediate seller. Shell Oil Co. v. Gutierrez,
Other courts have recognized that a warning to the immediate purchaser does not necessarily discharge a manufacturer’s duty. In a case involving the. distribution of polio vaccine, this court held that the manufacturer has a responsibility to see that its warnings reach the consumer, “either by giving warning itself or by obligating the purchaser to give warning.” Davis v. Wyeth Laboratories Inc.,
The recent cases evaluating a manufacturer’s duty to warn indicate that there should be. no absolute rules; the adequacy of a warning is a question of fact to be decided on a case by case basis. In some situations, such as where a drug manufacturer provides warning to a prescribing physician, a court could find that an adequate warning to the immediate vendee was sufficient. In most cases, however, the jury should determine the reasonableness and adequacy of the warnings provided under the unique circumstances of each case. Upon remand the trial judge should determine whether, in evaluating Eastman’s conduct, the jury should consider if the warnings given adequately indicated to those in the chain of distribution the scope and nature of the risk inherent in MBK. If the jury does consider this issue, it should do so in light of Eastman’s knowledge of the dangers and the feasibility of issuing more extensive or complete warnings. See Shell Oil Co. v. Gutierrez,
We note the liberal approach that the Idaho Supreme Court has taken in Section 402A actions.
We deny Ashland’s and Columbia’s motions to dismiss Eastman’s appeal, because Eastman has evidenced an intent to appeal, and the unique circumstances of this case warrant full participation of all the defendants and third-party defendants. TRC does nоt have standing to appeal, however, and we grant Ashland’s and Columbia’s motions to dismiss as to TRC. On the merits of this case, we find that summary judgment in favor of Eastman was inappropriate. First, there are material issues of fact regarding the adequacy of Eastman’s warning to Ash-land. Second, we believe that the trial court should reconsider its ruling that a bulk manufacturer is insulated from liability beyond its immediate vendee as a matter of Idaho law. The court should determine whether the adequacy of the manufacturer’s warning as to others, in the chain of supply presents a jury question. Because we reverse the summary judgment in favor of Eastman, we reverse the district court dismissal of Eastman’s third-party сomplaints against Ashland, Columbia and Custom and direct the district court to consider the merits of those claims on remand.
REVERSED AND REMANDED.
Notes
. Peripheral neuropathy is a degenerative disease of the nervous system. Bryant’s symptoms included weakness in all his extremities, multiple falls and injuries, and a progressively increasing disability in his right knee joint. Bryant’s neuropathy was linked to methyl butyl ketone (MBK) exposure. The parties on appeal
. The MBK and T-6 chain of distribution is graphically indicated as follows:
Eastman Chemical Products (MBK manufacturer)
—sold MBK by tank truck Ashland Chemical Company (distributor)
—sold MBK in bulk directly to TRC Technical Research Company (T-6 manufacturer)
—blended MBK into T-6 lacquer thinner, and sold tо retailers in one, five and fifty-five gallon drums
Columbia Paint Company (wholesaler-retailer) —sold and delivered T-6 in form received from TRC
Custom Furniture and Cabinet Company (employer)
—purchased T-6 from Columbia, used by employees in paint spray room
Thomas Bryant (employee)
—used T-6 at work developed peripheral neuropathy in 1973-74, apparently from MBK exposure
. The district court’s final judgment did not dispose of all the issues between all the parties, and therefore is not appealable absent certification. 28 U.S.C. § 1291; Fed.R.Civ.P. 54(b). Although the district court judgment did not refer to Rule 54(b), it used the certification language of the rule: “there is not just reason for delay, [and the court therefore] expressly directs that judgment be entered.” This court therefore has jurisdiction to hear TRC’s аppeal on the issue of liability between the defendants. The district court determination of whether “just reason for delay” exists will not be disturbed unless there is a “clear showing of an abuse of discretion.” Fed. Deposit Ins. Corp. v. First Nat'l. Fin.,
. Custom was only in the lawsuit because of Eastman’s third-party complaint; Bryant did not include Custom in his amended complaint. TRC and Eastman both challenge the district court dismissal of Custom. Unlike Ashland and Columbia, Custom has not filed a motion to dismiss this appeal.
. Browder v. Director, Dept, of Corrections,
. In effect, what we are doing is realigning the parties on appeal, with Eastman rather than TRC continuing as the appellant against Ash-land, Columbia, and Custom. This is analogous to the well accepted practice of realigning plaintiffs and defendants for the purposes of diversity jurisdiction. See Bliss v. Gotham Industries, Inc.,
. Restatement (Second) of Torts § 402A (1965) provides:
Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
*1344 (a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his products, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Comment j. to § 402A provides in part:
j. Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.
. Bryant recalls reading the following warning label on containers of the T-6 thinner:
DANGER! HARMFUL OR FATAL IF SWALLOWED. KEEP OUT OF THE REACH OF CHILDREN. If swallowed do not induce vomiting. CALL PHYSICIAN IMMEDIATELY. Avoid prolonged contact with skin and breathing vapor or spray mist. Close container after each use. Use with adequate ventilation.
It is not clear whether this warning is identical to that provided by Eastman; the quoted warning apparently was provided by TRC. TRC contends that the warnings Eastman provided did not reflect the dangers from skin contact or the link between MBK and neuropathy.
. Eastman contends that the first indication it had that MBK could cause peripheral neuropathy was in 1973, when an outbreak of the disease in an Ohio fabric plant was linked to MBK exposure. Eastman was a defendant in several lawsuits arising from this outbreak. Shortly after the outbreak, R.C. Dubberly of Eastman sent a letter to Eastman’s customers suggesting that “it would seem prudent that employees avoid all unnecessary exposure to MBK.”
TRC points out that the letter downplays the importance of the connection between MBK and neuropathy. Additionally, TRC has been unable to determine whether Eastman knew of the possible connection before the Ohio outbreak. While it is not disputed that Ashland received a copy of the Dubberly letter, TRC denies ever having received the letter. The affidavits of Fulton (offered by Eastman) and Daley (offered by TRC) are in conflict on this issue. See note 11 infra.
. Summary judgment is rarely appropriate in negligence cases. The jury should decide the reasonable nature of the conduct in issue. Arney v. United States,
. In an affidavit offered by Eastman, R.A. Fulton claimed that he had contacted Robert Daley (a TRC employee in charge of purchasing), told him of the possible link between MBK and neuropathy, and agreed to send him a copy of the Dubberly letter of September 25, 1973. See note 9 supra. Fulton also claimed that he and Daley discussed a case of peripheral neuropathy suffered by a TRC employee.
TRC offered Daley’s affidavit in opposition to Eastman’s summary judgment motion. Daley did not recall the conversation with Fulton, denied ever receiving the Dubberly letter, and denied that any TRC employer ever had an employee diagnosed or even susрected of contracting an MBK-reiated disease.
These two affidavits alone indicate that there are material issues in dispute regarding the extent and adequacy of the notice provided by Eastman and received by TRC. The specific points of dispute reflect the broader issue that should be decided by the jury, namely whether Eastman fulfilled its obligation to warn MBK purchasers and users of the risks associated with the product.
. See Mico Mobile Sales & Leasing, Inc. v. Skyline Corp.,
. The Model Uniform Product Liability Act recognizes that the employer and physician cases rest on the assumption that a supervising expert is in the best and perhaps the only position to pass on a manufacturer’s warnings. See note 10 supra, 44 Fed.Reg. at 62725. See also Carmichael v. Reitz,
By contrast, a manufacturer may have greater financial and informational resources than its distributor, and thus be in a better position to directly contact vendees farther down the chain of distribution. The better rule is that a manufacturer is “liable for failure to adequately warn other persons who might be foresee-ably subjected to danger,” not just the immediate vendee. 2 L.Frumer & M.Friedman, Products Liability § 8.03[3], at 176-80 (1975).
. Whether a manufacturer has met its duty to warn is a determination of reasonableness and foreseeability, even when the theory of recovery is strict liability under § 402A of the Restatement. See note 10 supra. The Model Uniform Product Liability Act has identified five key areas of evidence the trier of fact should consider in evaluating a manufacturer’s instructions or warnings:
(a) The manufacturer’s ability, at the time of manufacture, to be aware of the product’s danger and the nature of the potential harm;
(b) The manufacturer’s ability to anticipate that the likely product user would be aware of the product’s danger and the nature of the potential harm;
(c) The technological and practical feasibility of providing adequate warnings and instructions;
(d) The clarity and conspicuousness of the warnings or instructions that were provided; and
(e) The adequacy of the warnings or instructions that were provided.
Model Uniform Product Liability Act § 104(C)(2), reprinted in 44 Fed.Reg. 62714, 62721 (1979).
. See generally Duignan v. A. H. Robins Co.,