TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Wednesday, December 8, 2010

Twerski & Cohen on "Resolving the Dilemma of Non-Justiciable Causation in Failure-to-Warn Litigation"

Aaron Twerski (Brooklyn) and Neil Cohen (Brooklyn) have posted "Resolving the Dilemma of Non-Justiciable Causation in Failure-to-Warn Litigation."  The abstract provides:

Failure-to-warn cases represent a significant portion of product liability law, yet the core concepts of this body of law are poorly developed. In particular, the standard tort requirement that the injured party demonstrate a causal connection between the defendant’s violation of duty and the injury simply does not work in the vast majority of failure-to-warn cases. A substantial body of social science literature demonstrates that, in all but extreme cases, it is impossible for an injured party to demonstrate by a preponderance of the evidence, and thus for a court to credibly conclude, that she would have acted differently had a warning been provided. Thus, a rigorous application of the causation requirement would result in defeat for most injured parties. Yet, some injuries certainly could be saved by effective warnings, even if those beneficiaries cannot be easily be identified. A legal system that would deny recovery to virtually all injured parties because it cannot be ascertained which parties’ injuries would have been prevented under-compensates victims and under-deters dangerous practices by product manufacturers and distributors and, thus, does not fulfill the goals of the tort system. Some courts and commentators have recognized this problem, and have put forth a variety of mechanisms to resolve it. Those mechanisms - such as “heeding presumptions” and enterprise liability - suffer from the opposite problem. They compensate injured parties without regard to whether there is a causal connection between the injuries and the lack of a warning. The result is over-compensation of plaintiffs, over-deterrence of manufacturers, and under-deterrence of risky consumer conduct. This, too, fails to fulfill the goals of tort law. In this article, the authors propose eliminating causation as a separate requirement in most failure-to-warn cases and instead determine an injured party’s recovery by allowing proportional recovery, taking into account both the severity of the manufacturer’s fault in failing to warn of the dangers associated with its product and the likelihood that injuries would have been saved by a warning. Such a system would recognize that some failures to warn are more egregious than others and would generate a closer match between aggregate compensation and aggregate injuries caused by a failure to warn.


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