Tuesday, January 9, 2007
Ted Frank has an interesting post at Overlawyered on the social cost of excessive warning labels. A contest for wacky warning labels had turned up such gems as a washing machine with "Do not put any person in this washer" and a cell phone with "Don't try to dry your phone in a microwave oven." David Rossmiller at the Insurance Coverage Law Blog commented that maybe the warnings weren't so wacky, because he's seen people do equally ridiculous things. Frank offered a more serious take on the problem: "Such overwarnings have real social costs: as numerous studies have documented, if one's personal watercraft manual says 'Never use a lit match or open flame to check fuel level,' one's going to be less likely to slog through the whole thing and find the warnings that aren't so obvious."
Frank puts his finger on a real concern about failure-to-warn litigation: In any lawsuit, the marginal cost of adding a warning appears deceptively small and the marginal benefit appears deceptively large, because the perspective is ex post. In hindsight, it's tempting to say that if only the manufacturer had added this one small warning, it could have saved this life or prevented this injury. But in a world of imperfect foresight and countless potential risks, failure-to-warn liability promotes warnings that include so much that consumers simply stop reading.
The challenge, of course, is finding the level of warning that is "just right." And for those of us interested in tort litigation, a constant question is whether litigation -- as opposed to regulation, market forces, or some other mechanism -- offers the best hope for achieving sensible warnings that reduce overall risk.