Slides - Ch. 7 Warning Defects

8/12/2019 Slides - Ch. 7 Warning Defects

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Torts spring 2013

Fordham Law School

Chapter 8 Product Liability

Warning claims

George W. ConkAdjunct Professor of Law & Senior Fellow, Stein Center for Law &

Ethics

Certified Civil Trial Attorney

Room 409

[email protected]

212-636-7446OtherwiseCommentar ies on Law, Language & Poli tics

Blackstonetoday.blogspot.com

1Ch. 8 Product Liability - Failure to Warn
mailto:[email protected]:[email protected]


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Ch. 8 Product Liability - Failure to Warn 2

Product Liability Restatement

2 Categories of Product Defect

A product: (c) is defective because of inadequate

instructions or warningswhen the foreseeablerisks of harm posed by the product could have

been reduced or avoidedby the provision ofreasonable instructions or warnings by the selleror other distributor, or a predecessor in thecommercial chain of distribution, and the

omission of the instructions or warnings rendersthe product not reasonably safe.


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Warnings

Must knives carry warnings?

Ladders?

Peanut butter?

Beach balls?



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Unavoidably unsafe products

in the 2d Restatement

Drugs categorically assumed to beunable to be re-designed

Not subject to strict liability

Kearl/Feldman - case-by-case

exceptionAdequate warnings can render them

reasonably safeCh. 8 Product Liability - Failure to Warn 4


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2d Restatement: Cmt k. Unavoidably unsafe

products.

The vaccine for the Pasteur treatment of

rabies not uncommonly leads to very

serious and damaging consequences when

it is injected.

Since the disease itself invariably leads to a

dreadful death, both the marketing and theuse of the vaccine are fully justified,

notwithstanding the unavoidable high

degree of risk which they involve. 5Ch. 8 Product Liability - Failure to Warn


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Cmt k. Unavoidably unsafe produc ts.

The seller of such products, again with thequalification that they are properlyprepared and marketed, and properwarning is given is not to be held to

strict liabilityfor unfortunateconsequences attending their use, merelybecause he has undertaken to supply thepublic with an apparently useful anddesirable product, attended with a knownbut apparently reasonable risk.



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Cmt j directions or warning In order to prevent the product from

being unreasonably dangerous, the sellermay be required to give directions orwarning, on the container, as to its use.

The seller may reasonably assume thatthose with common allergies, as forexample to eggs or strawberries, will be

aware of them, and he is not required towarn against them.



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Cmt j directions or warning

Where 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 consumerwould reasonably not expect to find inthe product



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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.



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In the case of drugs

Likewise in the case of poisonous

drugs, or those unduly dangerous for

other reasons, warning as to use may

be required.



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But a seller is not required to warn with

respect to products, or ingredients in them,

which are only dangerous, or potentially so,

when consumed in excessive quantity, orover a long period of time, when the danger,

or potentiality of danger, is generally known

and recognized.

Why?



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Informed use

Judicial decisions supporting the

duty to provide warnings for

informed decision-making have

arisen almost exclusively with regard

to toxic agents and pharmaceuticalproducts


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Informed use

courts recognize a distinctive need to

provide risk information so that

recipients of the information can

decide whether they wish to

purchase or utilize the product.


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Watkins v. Ford (11thCir. 1999) p. 217

Although a warning may have the neteffect of preventing an accident, that isnot what is required by the law.

The law merely requires the warning toinform the consumer of the nature andexistence of the hazard, allowing him tomake an informed decision whether totake on the risks warned of.



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Anderson v. Owens Corning Fiberglass

California 1991 p. 220

from its inception strict liability has neverbeen absolute liability

knowledge or knowability is a componentof strict liability

information scientifically available to themanufacturer must be conveyed

Does strict product liability differ fromnegligence?



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Vassallo v. Baxter Healthcare

428 Mass. 1 (1998) p. 620

Our current law, regarding the duty to warnunder the implied warranty ofmerchantability, presumes that a

manufacturer was fully informed of allrisks associated with the product atissue, regardless of the state of the artat the time of the sale, and amounts tostrict liability for failure to warn ofthese risks.

What is wrong with a hindsight standard?Ch. 8 Product Liability - Failure to Warn 16


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Vassallo

At least three jurisdictions that

previously applied strict liability tothe duty to warn in a productsliability claim have reversed

themselves, either by statute or bydecision, and now requireknowledge, or reasonable

knowability as a component of such aclaim.See Feldman v. Lederle Labs.,97 N.J. 429 (1984)



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Vassallo

The change in the law of New Jersey

is particularly relevant, because we

relied in part on New Jersey law in

formulating the strict liability

standard expressed in the Hayes

decision. See: Hayes citing Beshada v.

Johns-Manville, 90 N.J. 191 (1982).



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VassalloAdopts 3rdRestatement 2(c)

`Comment malso clarifies the

manufacturer's duty "to performreasonable testing prior to marketinga product and to discover risks and

risk-avoidance measures that suchtesting would reveal.

A seller is charged with knowledge of

what reasonable testing wouldreveal.

Is prior to marketing enough?



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The average or ordinary consumer

To whom must the

warning be directed?



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Johnson v. American Standard

(California 2008) p. 229

the sophisticated user doctrine

What does the court mean when itsays the obvious danger rule is anobjective test?

Does comparative fault make thisdoctrine a contributory negligencedefense?



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Livingston v. Marie Callenders

(Cal. App. 1999) p. 234

the general rule of allergic reaction is thata warning is required when the harm-causing ingredient is one to which a

substantial number of persons are allergic

Products Restatement 2 Cmt. K

Who decides what is a substantialnumber?

How?



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Medina v. Louisville Ladder

(D. Fl. 2007) p. 238



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Adequate? Effective?

Necessary?



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Effective warnings

The role of

intermediaries



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Sowell v. American Cyanamid

(11thCir. 1989) p. 242

Why does the court find the warning in auser manual supplied to plaintiffsemployer - the U.S. Navyto be

insufficient?

Plaintiffs expert called for a visual anddramatic warning of the risk of explosion.

What problems of proof remain forplaintiff?



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Hoffman v. Houghton Chemical

(Mass. 2001) p. 244

The bulk supplier doctrine The goal is to induce conduct that is

capable of being performed.

Unocal gave Gotham (employer) MSDS fortoluene, acetone and methanol to keepaway from sparks and static electricity

Employer sued unsafe practices. Why not impose duty to users to warn

directly?



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Products Restatement, 2, cmt i

There is no general rule as towhether one supplying a product for

the use of others through an

intermediary has a duty to warn the

ultimate product user directly or may

rely on the intermediary to relay

warnings.


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Factors

gravityof the risks posed by theproduct

likelihoodthat the intermediary willconvey the information to theultimate user

feasibility and effectiveness of givinga warning directly to the user.


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Whenthe purchaser of machinery is theowner of a workplace who provides themachinery to employees for their use, and

there is reason to doubtthat the employerwill pass warnings on to employees, theseller is required to reach the employees

directly with necessary instructions andwarnings if doing so is reasonably feasible..


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Causal relationship

if a particular user or consumer

would have decided to use or

consume even if warned, the lack of

warnings is not a legal cause of that

plaintiff's harm.


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Bulk suppliersA supplier of a component has no duty to

warn a knowledgeable buyer of risksattendant to special application of itsproducts when integrated into another's

product.ABC did not participate in the design of

the disposable dishware manufactured by

XYZ, and is thus not subject to liabilityunder Subsection (b).



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Bulk suppliers

ABC Foam Co. manufactures bulk foam

with many different uses. XYZ Co.

purchases bulk foam from ABC, then

processes the foam and incorporates

the processed foam in the

manufacture of disposable dishware.



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Bulk suppliers

ABC becomes aware that XYZ is using

processed foam in the dishware.ABC and XYZ are both aware that

there is a potential danger that

processed foam may cause allergicskin reactions for some users.

ABC is aware that XYZ is not warning

consumers of this potential problem. Does ABC have a duty to warn users?



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Bulk suppliers

ABC has no duty to warn XYZ or ultimateconsumers of the dangers attendant to

use of the processed foam for disposable

dishware.

The foam sold by ABC is not defective in

itself as defined in this Chapter.



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To put the consumer in a position

equal to the seller so far aspracticable

Types of risks encompassed by the

duty to warn



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American Tobacco v. Grinnell (1997)

Cigarette smoking is dangerous to yourhealth

Surgeon General 1964


Graphic warnings


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Graphic warningsA "mini-billboard for FDAs

anti-smoking agenda!



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Liriano v. Hobart (2d Cir. 1999)

p. 259

Is a meat grinder w/o a guard an obviousdanger?

Hobart 5%

Super Associated 95%

Liriano 33 1/3%

the function of a warning is to assist thereader in making choices (among)alternatives



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Moran v. Faberge (MD 1975)

p. 265

Why isnt the contributory negligence ofpouring perfume on a candle a completedefense?

What is the role of foreseeabiltiy indetermining the extent of the sellers dutyto warn?



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Jones v. Amazing Products (N.D. Ga.

2002) p. 273

if the plaintiff failed to read the warningthe inadequate warning can no longer bethe cause of the injury

But failure to read the warning does notbar a claim based on the inadequacy ofthe warning.

Heeding presumption



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MacDonald v. Ortho Pharma. (Mass.

1985) p. 275

Does the failure to specify stroke as a

risk render the warning inadequate? Must

every risk be specified?


B d C ti t l Oil


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Broussard v. Continental Oil.

(LA App. 1983)

Should the danger of explosion have been

put on the tool itself?



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Design defect v. Warning

A PROMINENT WARNING ON A GRINDINGWHEEL SAYS: WEAR OSHA-APPROVEDEYE GOGGLES AT ALL TIMES TOPREVENT EYE INJURY

A CLEAR LUCITE SHIELD OVER THEWHEEL WOULD PREVENT NEARLY ALL

ACCIDENTAL EYE INJURIES

Should such a warning defeat a

design defect claim?



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Ryobi 10 inch miter saw



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Hood v. Ryobi (4thCir. 1999) p. 600

Mastering the miter saw

http://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspx

1:45


Hood v Ryobi America Corp
http://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspxhttp://www.finehomebuilding.com/how-to/video/master-the-miter-saw.aspx


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Hood v. Ryobi America Corp.

181 F. 3d 608 (4thCir. 1999)

KEEP GUARDS IN PLACE - USE of SAWWITHOUT GUARD WILL RESULT INSERIOUS INJURY

FACTORS TO ASSESS


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FACTORS TO ASSESS

ADEQUACY - SCOPE OF DANGER

- EXTENT OR SERIOUSNESS OFHARM DUE TO MISUSE

- SUFFICIENT LEGIBILITY, ETC.

How does Ryobi fare here? Is over-warning an issue?



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A reasonableness test

Products Restatement adopted inLovik v. Wil-Rich

Post sale duties to warn



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Products Restatement 10

(b) A reasonable person in the seller'sposition would provide a warning after thetime of sale if:

(1) the seller knows or reasonably shouldknow that the product poses a substantial

risk of harm to persons or property; and



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Products Restatement 10

(2) those to whom a warning might beprovided can be identified and canreasonably be assumed to be unaware ofthe risk of harm; and

(3) a warning can be effectivelycommunicated to and acted on by thoseto whom a warning might be provided;

and

(4) the risk of harm is sufficiently great tojustify the burden of providing a warning.


5 Liability of Commercial Seller or Distributor


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yof Product Components for Harm Caused by

Products Into Which Components Are

Integrated

One engaged in the business of selling orotherwise distributing product componentswho sells or distributes a component issubject to liability for harm to persons orproperty caused by a product into whichthe component is integrated if:

(a) the component is defective in itselfand the defect causes the harm; or



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5 Liability of Commercial Seller or Distributor

(b)(1) the seller or distributor of the

component substantially participates in theintegration of the component into thedesign of the product; and

(2) the integration of the componentcauses the product to be defective, asdefined in this Chapter; and

(3) the defect in the product causes theharm.



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Proving causal relationship

The Heeding

Presumption


Heeding presumption


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Heeding presumption

If plaintiff establishes prima facie evidence

that the instructions or warnings were notadequate

Fact-finder may infer that an adequate

warning would have been heeded by theuser

In workplace inference is permissible thatboth worker and employer would haveheeded warning

Coffman v. Keene; Theer v. Philip Carey(NJ 1994); 402A cmt j.


Heeding presumption burden shift


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Heeding presumptionburden shift

Plaintiff may rely on the presumption

to establish that adequate warning

would have been heeded

Burden shifts to defendant to show

plaintiff would NOT have heeded

such warning


Heeding presumption burden shift


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Heeding presumptionburden shift

Evidence of habit of ignoring

warnings admissible (e.g. smoking

tobacco)

Evidence of negligent behavior on

one occasion is generally not

admissible to prove negligence on

another occasion



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Preemption

The laws of the United States "shallbe the supreme Law of the Land . . .

any Thing in the Constitution or Laws

of any state to the Contrary

notwithstanding."

U.S. Constitution

Art. VI, cl. 2.


Ci ll Li tt & M


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Cipollone v. Liggett & Myers

The "failure to warn claims" alleged:

The product was "defective as a result ofdefendants failure to provide adequatewarnings of the health consequences ofcigarette smoking

L&M was negligent in the manner [that]they tested, researched, sold, promoted

and advertised" their cigarettes.


Cipollone v. Liggett & Myers (U.S.


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Cipollone v. Liggett & Myers (U.S.

1992)

Strict liability Negligence

Express warranty

Intentional tort



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Cigarettes

Public Health Cigarette Smoking Actof 1969, 15 U. S. C. 1331-134

WARNING: THE SURGEON GENERALHAS DETERMINED THAT CIGARETTESMOKING IS DANGEROUS TO YOUR

HEALTH


Public Health Cigarette Smoking Act of


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g g

1969 "No requirementor prohibition based

on smoking and health shall be

imposed under State law with

respect to the advertising or

promotion of any cigarettes the

packages of which are so labeled."



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Cipollone majority

Barred failure-to-warnclaim against

tobacco companies

Prohibitedcases asserting neutralization of

federal warningsin advertisements

Limited common law claims permitted tofraud and breach of express warranty


Blackmun concurring in Cipollone


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Blackmun concurring in Cipollone

The decision today eliminates a critical

component of the States' traditional ability

to protect the health and safety of their

citizens.

Such a radical readjustment of federal-

state relations is warranted only if there

is clear evidence that Congress intended

that result. Ch. 8 Product Liability - Failure to Warn 64

New FDA text warnings


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"WARNING: Cigarettes are addictive.

WARNING: Toba c co smoke can ha rmyour children.

WARNING: Cigarettes cause fatal lung

disease.

WARNING: Cigarettes cause cancer.

WARNING: Cigarettes cause strokes and

he a r t disease.



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WARNING: Smoking during pr egnancycan harm your baby.

WARNING: Smoking can kill you.

WARNING: Tobacco smoke causes fatallung disease in nonsmokers.

WARNING: Quitting smoking now greatly

reduces serious risks to your Health.

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