Tuesday, March 25, 2014
Aaron Twerski (Brooklyn) & James Henderson (Cornell) have posted to SSRN Fixing Failure to Warn. The abstract provides:
Failure to warn remains a doctrine in distress. More than two decades ago, the authors published an article identifying a number of problems with failure-to-warn doctrine in products liability law. In essence, the article criticizes the law traditionally governing products warnings for being little more than an “empty shell,” allowing claims that need only be asserted rhetorically to reach the jury. Afterwards the authors served as Reporters for the Restatement, Third, of Torts: Products Liability, helping to write black-letter rules covering product warnings and a number of other subjects. Working on the Restatement project involved coming to terms with the similarities and differences between defective design and failure to warn. One important difference relates to what a plaintiff must prove to establish a product defect. Regarding design-based liability, American courts generally require plaintiffs to prove that a specifically-identified reasonable alternative design (RAD) was available at the time of commercial distribution of the product. Regarding alleged failures to warn, many courts impose no similar burdens on the plaintiff. In those jurisdictions, the plaintiff need only assert in conclusory fashion that the defendant’s warnings of nonobvious product-related risks were inadequate, without specifying exactly what warning the defendant should have given or proving that a different warning would have done any good. The authors conclude that the same rigor necessary for a plaintiff to make out a prima facie design defect case should be required for alleged failures to warn. Plaintiffs asserting warning claims should be required to specify, by suggesting a reasonable alternative warning (RAW), exactly how the defendant should have effectively communicated product-related risks and to prove how the RAW would have prevented or reduced the plaintiff’s harm. From a broader perspective, too much has been made of the differences between design and warning and not enough has been made of their similarities. This essay aims to set things right.