Some Thoughts on Warnings in Product Liability Cases

It is impossible today to purchase a product which is not heavily laden with warnings about what might happen if the purchaser is not careful with the product. Many experts have concluded that the proliferation of warnings is counterproductive, and that people have become too accustomed to them, and therefore pass by, and fail to be attentive to, them. In this post, based upon having tried to jury verdicts and conducted discovery in numerous product liability cases, I discuss how warnings are best crafted to protect a manufacturer or seller when they are sued on a supposedly “defective” product. Indeed, a poorly crafted warning will┬áhave little or no usefulness in loss prevention.

Here are four examples of how plaintiffs seek to evade their client’s failure to heed a product warning:

  1. Warning Failed to Warn About a Particular Hazard
  2. Warning Was Only in English
  3. Warning Was Not Conspicuous
  4. Warning Lacked Pictures

What Then to Do?

  1. This is where you do need experts; they should do a first draft of a proposed warning to be reviewed by the company’s outside counsel with products liability trial experience. But don’t stop there. Instead, hold a focus group with a representative group of national consumers to review the draft and suggest clarifications which may be needed.
  2. This is tougher. In another case not involving products liability, I discovered that over 50 languages were spoken by students in the Philadelphia School District. It is obviously impractical to include warnings in every possible language read by potential consumers. One possibility: follow the bank ATM practice by using both Spanish and English, which seems to be an accepted practice in both banks and large retail stores such as Lowe’s Home Improvement. If there are overseas sales, use English and the native language in your warning. And (see 4 below) use pictures where feasible, and have the focus group evaluate them as well.
  3. Use larger print and place the warning where the average consumer will see it. Add these issues to your focus group review.
  4. Use pictures. Lack of a pictorial warning is a common excuse utilized by plaintiffs’ counsel. Using an accurate pictorial warning is most helpful in all cases, and particularly so to address points raised by those who are illiterate or can’t read English or Spanish. The pictures must be clear and conspicuous and, once again, evaluated by your focus group for clarity and force of warning.

Properly composed warnings are a necessary, but not sufficient, tool for defendants to win a products liability trial. There are many other points for the defense counsel’s trial toolbox, but the warnings point is important to properly evaluate before a product is sold.

 

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