Transcript Lesson Four

Chapter Five
Inadequate warnings
and instructions
I. In general
► A.
General rule:
► 1.In a products liability suit, the plaintiff will
allege a failure to warn, along with a design
defect count, in a products liability suit.
► 2. Such rule was stated I Gsewisch v.
American Honda Motor Co. (Ariz. 1987) and
is widely followed nowdays.
► B.
Warning and instruction:
► A warning is distinguished from an
instruction in that instructions are calculated
primarily to secure the efficient use of a
product, while warnings are designed to
insure safe use. The distinction is well
illustrated by Panther Oil & Grease Mfg. Co.
v. Segerstrom (9th Cir.1955)
► 1.To be adequate, a warning must describe
the nature and the extent of the danger
involved.
► 2.
The warning may need to describe not only the
toxic qualities of a produt, but also a safe means
of disposal.
► 3. A manufacturer may be required to warn of the
absence of an antidote in the case of a dangerous
poison.
► 4. A manufaturer should take accout of the
environment in which its product will be used
when fashioning warnings.
► 5.The defendant may be required to anticipate the
foreseeable misuse of its product in warning of
dangers associated with the product’s use.
► 6.In
many instances a warning is required in order
to enable the plaintiff to use the product in such a
way as to avoid a concealed danger.
► 7.Other warning cases are more in the nature of
informed-consent actions, where the plaintiff
contends that he should have been warned of a
danger in order to enable him to decide whether
or not to purchase or use the product.
► 8.A warning is not required for a danger that is
obvious, and sometimes expert testimony is
required to determine the adequacy of warnings to
a specialized group, such as doctors.
II. The standard of liability
► There
is a substantial division of authority
regarding whether a negilengce or strict
liability standard is to be used I failure to
warn cases. Here are two general standards.
► 1. The state-of-the-art standard is usually
defined in terms of the scientific or
technological knowleddge available at a
given time;
► 2.
The negligence standard of due care is
defined in terms of what a person knew, had
reason to know, or should have known
regarding a danger and the means of
avoiding it.
► Those two standards are not necessarily the
same, even for a manufacturer with
assumed expert knowledge in the field, since
the reasonable person cannot always be
expected to know that which is in fact
knowable.
III. Persons to be reached
► 1.
Generally, an expert need not be warned
of dangers commonly associated with the
use of products about which he has expert
knowledge. There may be specific dangers
of which the expert is unware, however, and
for which a warning will be required.
Howard v. General Cable Corp. (5th Cir.
1982).
► 2.
Whether an employer’s knowledge of a
danger will relieve the manufacturer of a
duty to warn the employer’s employees, and
the cases in this area are very fact-specific
in York v. Union Carbide Corp. (Ind. App.
1992).
► The court held that the bulk suppolier of
argon gas had no duty to warn the
employees of a steel manufacturer, which
was a sophisticated purchaser of the
product.
► 3.In
Brizendine v. Visadaor Co. (9th Cir. 1970), the
court held that the defendant glass company had
a duty to warn all persons in the chain of
distribution that its galss was unsuitable for use in
hign traffic areas.
► 4. It is generally held that there is no duty to warn
a patent of dangers associated with prescription
drugs, since a warning to the prescribing doctor is
sufficient. But the so-called “learned intermediary”
rule for prescription drugs, whereby only a doctor
need be warned, may be in a process of change.
► Johnson v. American Cyanamid Co. (Kan. 1986)
and Macdonald v. Ortho Pharmaceutical Corp.
(Mass. 1985).
► 4.Where
it is foreseeable, as in Reyes v. Wyeth
Labs. (5th Cir. 1974), that a drug will be
administered without the intervention of a doctor
as a learned intermediary, a warning by the
manufacturer directly to the consumer may be
required.
► 5. But in Mazur v. Merck & Co. (3d Cir. 1992) the
court held that a nurse could act as a learned
intermediary I nadministering a prescriotion
vaccine during a measles epidemic, provided it
was shown tat the nurse was familiar with the
vaccine pachage insert and carefully reviewed the
medical record for each patient.
Iv. Countervailing representations
► Whether
or not a warning might otherwise be
adequate, it can be made inadequate by
countervailing representations that downplay the
danger or mislead the user regarding the nature
or extent of the danger.
► 1. The mixing instructions for a cleaner in McCully
v. Fuller Brush Co. (Wash. 1966) were inadequate
as a warning, and rendered more inadequate by
the representation on the container that the
product was “kind to your hands”.
► 2.
Warnings by a drug manufacturer as to
the possible side effects of its product were
counteracted by the manufacturer’s detail
men, or salespersons, “who minimized the
dangers of the drug while emphasizing its
effectiveness, wide acceptance and use, and
lack of certain objectionable side effects
associated with other drugs. Incollingo v.
Ewing (Pa.1971).
► 3.
A warning may be neutralized by pictures or by
appearances of safety.
► The toxicity of the cleaner in Jonescur v. Jewel
Home Shop. Ser. (Ill. App. 1973). Was minimized
by its container, a “white, plastic bottle with a red,
white, blue and aqua label, lending to it a colorful
and harmless appearances.”
► 4. It is apparent that a variety of circumstances
surrounding the packaging, marketing and
appearance of a product may serve to counteract
any warnings that are given. These circumstances
are in the nature of misrepresentations, for which
strict liability may be imposed.
V. Post-sale duties to warn
► 1.
Where a defendant markets a defective
and unreasonabley dangerous product, it
may have a post-sale duty to warn of
dangers associated with the product.
► 2. A continuing duty to warn may exist afer
the plaintiff in no longer exposed to the
poroduct, since a warning may enable the
plaintiff to take preventive measures.
Lockwood v. AＣ&S, Inc. (Wash. 1987).
► 3.
A post-sale duty to warn may also
continue even afer the defendant has
stopped manufacturing the product. OwenIllinois v. Zenobia (Md.1992).
► 4. The post-sale duty may be greater than
one of just warning. A duty to recall may be
imposed by statute, as under the Nat.
Traffic and Motor Vehicle Safety Act. A duty
to repair may be imposed by common law
decision, where it appears likely that a
warning wil be ineffective. Such duty was
found to exist in Balido v. Improved
Machinery, Inc. (Cal. App. 1972).
Questions
► 1.
What are the requiarements of adequate
warning?
► 2.
Please introdue countervailing
representation with some examples in our
country.