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The Ills of Open-Ended Warnings Litigation

February 14, 2011 in  News

New York Law Journal

On the lecture circuit, I have sometimes referred to the “failure to warn” cause of action as the “poor man’s design claim,” not because of true poverty of wealth by attorneys asserting it, but because it is a relatively inexpensive, if circuitous or indirect, method of attacking a product’s design. Whereas the true design claim usually calls for competent expert proofs that a reasonable, practicable alternative design existed at the time of manufacture or sale that would have prevented (or mitigated) the harm, the warnings claim posits only that some (additional) verbiage, text, label, sticker or even symbol, if given, would have obviated the injury.

Facially, what is easier to scramble together? A complex design alternative that has to be practicable, that has to take into account a full range of risk-utility considerations that may need to be tested or that might even be criticized for causing other dangers to other persons in other settings? Or to allege a mere phrase or sentence or label that the expert opines would have avoided the harm?

Failure to warn is a poor man’s disguised design claim because, not only is it relatively easy to allege that a given message would have prevented the injury, but because the range of possible dangers to be warned against attending product use is virtually limitless. The universe of potential warnings one can conjure up is markedly open-ended. One simply identifies a risk or danger that accompanies a product’s design, its packaging, its parameters of normal use and all varieties of misuse and then alleges that the risk selected should have been warned against.

If a warning was issued, well, then one just needs to say it could have been made better or safer. The print could have been bolder or larger or more emphatic. Or the text might have been more eye-catching if it had employed different colors or used pictorial symbols. Or it could have been conveyed in Spanish (or some other language frequented in the community where the injury occurred), and so on. You get the point. In effect, says the willing warnings expert, show me the accident and injury and I will give you the warning or admonition or modified warning that could have helped the plaintiff in this mishap.

Seat Warnings

Just weeks ago, the Supreme Court of Missouri, in a case called Moore v. Ford Motor Co.,while upholding a defense verdict on crashworthiness design issues, nevertheless ordered a new trial for plaintiff on a failure to warn claim which the trial court had dismissed via a directed verdict. Plaintiff, a female driver rendered paraplegic when her Ford Explorer was hit from behind by another vehicle, was 6 feet tall and weighed about 300 pounds. At impact, her driver’s seat collapsed rearward, so the focus at trial was upon the seat design and its integrity in rear collisions. Because of her size and weight the forces exerted on the seat were affected. The jury sided with the manufacturer on the claims of defective design.

On appeal, plaintiff challenged the trial court’s ruling on failure to warn. She argued at trial that tall and heavy people were not warned that the front seats would collapse in a rear impact. Had she and her husband been warned to that effect, “they may never have bought their car.” She testified that she paid attention to weight warnings because of her size and because her husband and son also were tall and heavy. Her husband said his wife was the type of person who reads warnings and that, had Ford provided some warning or indication that the seats were not designed for people of her size, he would not have purchased the vehicle and “would have done everything in his power to prevent his wife from riding in it.” The trial court rejected the “I would not have purchased the vehicle” testimony as speculative.

In restoring the failure-to-warn claim, a majority of the Missouri Supreme Court reached a number of disturbing conclusions which, when taken together, seem to make warnings litigation in Missouri a virtual magic carpet ride to a jury determination on the barest of showings. The court majority held that plaintiff did not have to propose proof of the wording of what would be an adequate warning. The court also held that the so-called “heeding presumption” would apply so that, had an adequate warning been given, the jury could assume, unless rebutted, that plaintiff would have heeded the warning. This helps a plaintiff with proof of causation. The court also accepted testimony that a plaintiff would not have purchased the product as a “straightforward, not speculative” causation theory.

Finally, by accepting the notion that the plaintiff’s weight and size were properly a subject for a warning about performance of the seats in a crash, the court seems to have opened up a limitless duty of sorts to warn all persons about all car components’ risks in all manners of crash scenarios. Failure to warn regarding potentially adverse results tailored to an occupant’s size, weight and other subjective characteristics would seem to be fair game. Thus, short-statured people may need to be warned differently than tall folks. Older persons whose bones are more brittle may need particularized crashworthiness warnings for their susceptibility. Hemophiliacs, of course, need to be told that a scratch, abrasion, laceration or internal bleeding from a crash can lead to death. Thin-skulled persons may have to be told they have more danger in head impacts. Pregnant women will have special sensitivities as will persons with broken limbs that are healing as will certain amputees.

Many persons will be better off wearing a seat belt and staying inside the vehicle in a crash. But a smaller percentage will be better off being thrown from the vehicle (e.g., as in a fire). So, do both possibilities need a warning? Without a particularized warning as to limitless numbers of precise risks, according to the Moore court’s dogma, all plaintiffs can simply testify, “had I been warned adequately, I wouldn’t have purchased the vehicle.” Presto—a jury question on warnings is presented.

For his lecture at an ABA Tort and Insurance Practice Section, in the 1980s, products liability law expert Cary Sklaren humorously hypothesized a warning that might accompany the ordinary banana.2 The text of his banana warning is reproduced in the endnote here. The reader is invited to study whether, ironically, even this copious warning might be alleged to be “deficient” in some  particulars.3  And, assuming it would be deemed sufficient, where should such warning be put? Does each banana get its own or is a warning tag attached to the cluster (or is it, a “bunch”?) sufficient? It may be laughable but so are some court results suggesting the logic Mr. Sklaren burlesqued.

Pedagogic humor aside, Professors James A. Henderson and Aaron D. Twerski, in their 1990 law review article titled, “Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn,”4 amply described the absence of principled standards in warnings cases which has fostered “an atmosphere of lawlessness.”5  The “standards” governing such claims are “so inadequate as to be virtually nonexistent” and “too frequently rely on unavailable data and unverifiable  facts.”6

Messrs. Henderson and Twerski, eight years later, co-authored the Restatement (Third) of Torts: Products Liability. Mr. Twerski, together with a co-author, has now penned a new article about to be published in the Southern California Law Review in which he revisits what he calls the problem of “nonjusticiable causation” in failure to warn litigation. Many of the problems identified in the 1990 article are echoed and updated as a new solution isadvanced.7

Presumption Debunked

In their “Doctrinal Collapse” article, one of the most salient contributions of Professors Henderson and Twerski is their “debunking” of the so-called “heeding” or “causation presumption” often employed in warnings ccases.8  Many courts have held that when a defendant fails to provide an adequate warning, it is presumed that such a warning would have been read and heeded by the user had it been given. This fiction gets the plaintiff over the causation proof hurdle in “all but the weakest of cases.” Although this presumption is usually drawn from Restatement (Second) of Torts §402A, comment j, the rationale for doing so is seriously flawed.9

The Second Restatement’s comment provides the defendant a presumption that its adequate warning will be read and heeded, but that statement does not mean that the plaintiff should also be entitled to the converse causation presumption when an inadequate or no warning is given. This is because the Restatement’s comment j reference operates from the fundamental premise that the seller’s issuance of an adequate warning actually rendered the product nondefective. If the product is therefore “reasonably safe,” the question of individual causation is never reached. Thus, when comment j says the “seller may reasonably assume a warning will be heeded,” it is not stating that any individual plaintiff actually did read and heed the warning but, rather that, for the purposes of determining the defendant’s discharge of his duty, it reasonably may be assumed that consumers in general will act on the adequate warning.

A defendant’s satisfaction of the adequate warning duty dooms the claim. It “fails at the threshold and the question of individualized causation never arises.”10  To argue the converse presumption for the plaintiff, however, is “false logic” because comment j never addresses the plaintiff’s causation issue as such and, further, never creates any presumption of individualized causation benefiting defendants.11

In Part II of their article, the authors persuasively show that, even under negligence theory, the courts’ tendency to pass virtually all warning cases to the jury for trial precludes appropriate judicial screening of weak claims (1) at the preliminary stage of a case; (2) from the later standpoint of a full-blown risk/utility balancing inquiry; and (3) from the all-important perspective of causation. One of the more salient discussions here is the perceptive distinction that must be drawn between warnings addressed to “risk-reduction” objectives (getting the user to alter his conduct or behavior) and those directed to “informed-choice” decision-making (letting the consumer become better informed about whether to use the product). Case law has significantly obscured the differences between the two and engendered much confusion, as the recent Missouri Supreme Court decision shows.

It is also shown that risk/utility balancing in warnings cases proceeds ineffectively. The current law encourages proliferative warnings about every conceivable risk, no matter how remote, thereby “bombarding” consumers with “nearly useless warnings about risks that rarely materialize in harm” and that cause consumers “to give up on warnings altogether.”12 The courts’ assumption that the risks and costs of additional warnings are low is erroneous. Instead, “overwarning” causes users “to discount or ignore warnings that should be heeded, leading to higher accident costs that, although very real, are not before the court in failure-to-warn litigation.”13  Courts simply pile up warning after warning in case after case without looking at the total picture of countervailing costs.

Moreover, unlike design cases, warnings jurisprudence has no “available body of hard science from which to draw the data necessary to run sensible risk-utility analyses.” The relevant sciences tend to be soft, undeveloped and largely underutilized.14  The problems involved are polycentric. Since the capacity to give and receive warnings is limited, when those limits are reached, new warnings inevitably “crowd out existing warnings.” But a court will usually not know when those limits will be reached because it typically focuses on the precise case before it and solely upon the additional verbiage plaintiff says should have been used. Here the “lack of hard science and dependable data comes back to haunt the courts with a vengeance.”15  These problems are dramatically exacerbated by the “empty shell” that causation analysis then becomes.16 The claimant offers little more than self-serving testimony and anecdotal evidence to establish the causation case. The incisiveness of the scientific evidence that should be presented suffers. In light of available empirical data, rank speculation thus bounds.17 Too often, causation in warnings cases “is a mirage—whatever the factfinder wishes it to  be.”18


The Missouri Supreme Court’s recent decision in Moore v. Ford Motor Co. illustrates that serious ills in the litigation of warnings claims, though identified decades ago by courts and scholars, nevertheless persist. Indeed, Mooreadvances the disease by dispensing with reliable proof of an adequate warning, by opening up a vast universe of what has to be warned about, by sanctifying subjective, conjectural testimony that, “I wouldn’t have purchased the product had I been warned,” and by allowing a thoroughly debunked “heeding presumption” to leapfrog over the gap in competent causation proof. This turns warnings litigation—the so-called “poor man’s design claim”—into an undeserved treasure trove. Sometimes, it is good for seasoned lawyers to get back to basics. The foundations for good advocacy on warnings are out there. One has to find them, read them and apply them.

Michael Hoenig is a member of Herzfeld & Rubin.


  1.  2011 Mo. Lexis 6 (Mo. Sup. Ct. Jan. 25, 2011).
  2.  Sklaren, “Is It Time to Label the Banana? Common Sense and Reason in Failure-to-Warn Products Cases?” p. 1 in ABA, National Institute, Products Liability in the 1980’s, Litigation, Legislation and Practical Engineering (Tort and Insurance Practice Section, N.Y. May 1983).
  3.  “WARNNG: the wrapper (peel) of this fruit (perennial herb) must be safely discarded. The peel is slippery (it has a low coefficient of friction) and individuals who walk, step or otherwise locomote themselves onto the peel may lose their balance and fall resulting in possible severe injury. (Falls are the number one cause of non-fatal accidents and in some circumstances, death.) Instructions for Use: Carefully grasp the banana in one hand, being certain not to squeeze too hard. With the other hand, grasp hold of the stem (the protrusion at the top of the fruit) and with a firm continuous motion, pull downward. Continue to remove the remaining strips of peel in a similar manner. Safely discard the peel in a receptacle from which it will not be removed. (See Warning above.) The banana is labeled at the “top” and “not top.” If the banana is not so labeled, do not use. Caution: It is not recommended that a knife, scissor, screwdriver or any other sharp object be used to assist in removing the peel. If you are unable to remove the peel in the recommended manner, discard the entire fruit safely (See Warning above.) This fruit was grown in a tropical climate and may have been treated with a wide variety of herbicides, insecticides, fungicides, fumigants, disinfectants, acarasides or other chemicals or substances which may be toxic to humans. If the peel is split or not in any way intact, do not ingest the banana but safely discard it. (See Warning above.) In order to eat the fruit, one recommended method is to grasp it, after it has been safely peeled (see instructions above), with one hand. Be certain you do not take bites which are too large for your own mouth. (You are the one who best knows the size of your mouth.) Taking bites of the banana which are too large for your own mouth could result in choking or suffocation which could further result in brain damage or death. In the event of choking, use the Heimlich maneuver (see attached pamphlet). This fruit contains high levels of potassium and should not be used by persons on low potassium diets. Consult your physician. In certain rare cases, excess potassium intake can result in hyperkalemia which can further result in cardiac arrhythmias or ascending muscular weakness with progressive flaccid quadriplegia and respiratory paralysis. The safe use of this product by pregnant women has not been established. Keep out of reach of children who may not understand the importance of safely discarding the peel. (See Warning above.) Do not use this banana for any purpose other than as food.”
  4.  65 N.Y.U. L. Rev. 265 (1990).
  5.  Id. at 267, 289—310.
  6.  Id. at 267.
  7.  See Twerski & Cohen, “Resolving the Dilemma of Nonjusticiable Causation in Failure-to-Warn Litigation,” 84 So. Cal. L. Rev. 125 (2011).
  8.  65 N.Y.U. L. Rev. at 278—279, 325-326.
  9.  Id. Restatement (Second) of Torts §402A (1965) , comment j, provides in part: “When warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in a defective condition, nor is it unreasonably dangerous.”
  10.  65 NYU L. Rev. at 279.
  11.  Id.
  12.  Id. at 296.
  13.  Id. at 297 n. 135, 296—297.
  14.  Id. at 298—303 (citing examples).
  15.  Id. at 301.
  16.  Id. at 303—310.
  17.  Considerable empirical evidence shows that (1) many people do not process information in a logical and predictable manner; (2) both the type of information and manner of presentation can have a substantial effect on decision-making; (3) an individual’s prior beliefs and information significantly affect the impact of receiving additional information; (4) the order in which information is presented impacts upon an individual’s perception of new data; (5) suggested alternative or additional warnings cannot be comprehended by the user all in one piece; they must be read sequentially and digested piecemeal; (6) the hierarchy of warnings is important: as one moves from more important warnings to those of lesser urgency, the number of warnings that must be supplied increases exponentially at each descending level; (7) there are many variables attending how a hypothetical new warning should have appeared and how the user would have reacted to them; (8) physical causation problems may complicate the process of determination. Id. at 307—309.
  18.  Id. at 308—309.