Failure to Warn vs. Failure to Read: Recent Developments in Product Liability Litigation

Product manufacturers are legally responsible for warning potential users of the non-obvious hazards associated with the use, or even the foreseeable misuse, of their products. Yet research shows that users rarely read product instructions or only read the parts of product literature necessary to accomplish a specific task.

“Failure to warn” claims are routinely brought alongside claims of design or manufacturing defect when injuries or death occur with the use of product. For success on a failure to warn claim, there usually must be proof that the absence of a warning, or of an adequate warning, caused the injury; that is, proof that had an adequate warning been given, that warning would have been read and heeded and the injury would not have occurred.

But when the injured person or other user of the product did not read the information that was provided with the product, can he or she nevertheless recover for the manufacturer’s failure to provide a warning about the specific harm which befell him or her? Several cases decided in the first half of 2017 illustrate just how much the answer to that question depends on where the lawsuit is filed.

In perhaps a majority of jurisdictions in the United States, a plaintiff’s proof of causation in a failure to warn case is aided or, in some cases, conclusively met by what is known as a “heeding presumption.” The heeding presumption provides the injured party with the benefit of a legal counterfactual – that if an adequate warning had been given, it would have been read and heeded, even though the instructions and warning that were given were not read.

The American Law of Products Liability 3d ed. says: “The presumption that a warning will be heeded is based on the assumption that persons exercise ordinary care for their own safety,” and “that a reasonable person will act appropriately if given adequate information.” Affording this presumption is based on a public policy to “reinforce the basic duty to warn, [and] to encourage manufacturers to produce safer products…”

For example, in the recent case of Scanlon v. Sunbeam Prods., decided by the U.S. Court of Appeals for the Sixth Circuit on May 24, 2017, the court, applying Kentucky law, held that a plaintiff who did not read the operating instructions that accompanied a space heater did not have to prove he would have acted differently if an adequate warning had been given about the heater’s ability to cause excessive ambient air temperature.

Instead, the plaintiff would be allowed to argue that labeling the heater as having an “adjustable thermostat” and “overheat protection” was misleading and that an adequate warning on the heater might have influenced him not to leave the heater on in a room occupied only by a sleeping child.

But a trial judge in New York recently rejected outright any presumption that an adequate warning would have been heeded in Castorina v A.C. & S., an asbestos case in which the court granted the defendant a directed verdict on Jan. 9, 2017.

And in Carlson v. Boston Sci. Corp., decided by the U.S. Court of Appeals for the Fourth Circuit on May 9, 2017, the court held that under North Carolina law the absence of evidence that either the plaintiff or her doctor ever read the Directions for Use (DFU) provided with a transvaginal mesh medical product was fatal to the plaintiff’s claim that she was injured because the manufacturer provided inadequate warnings in the DFU. The court said that despite the plaintiff’s attempts to prove the information provided was inadequate, where she had no evidence that an adequate warning would have been read, there was no proof of causation. On the same day, a California Court of Appeals affirmed the dismissal of a failure to warn claim in a case in which the injury occurred when an off-road vehicle tipped over in a Yamaha Rhino Litig. Despite the plaintiff’s testimony that she “may have” read safety labels on other off-road vehicles, her failure to prove that either she or her husband ever read the owner’s manual or safety labels for this specific vehicle doomed her claim that the warnings given by the manufacturer were inadequate. Because of that failure to read, the court said, “Yamaha’s failure to include a warning in these materials about the possibility the vehicle could tip over could not have caused the accident.”

Similarly, where there was no evidence that a boat’s owner, the mechanics who serviced the boat, or a passenger on the boat ever read the owner’s manual, the U.S. Court of Appeals for the First Circuit affirmed a summary judgment in favor of the boat’s manufacturer under the law of Puerto Rico on June 8, 2017, in Santos-Rodriguez v. Seastar Sols. That court held the manufacturer’s total failure to warn of the possible corrosion of a steering component could not have been the proximate cause of the incident in which the passenger was injured where there was no evidence that any person responsible for maintaining the boat or the plaintiff himself read the owner’s manual. “Unless someone read the Manual, no warnings in it could have prevented Santos’ injuries,” the court said.

Recognition that a different or “better” warning would make no difference to a user who failed to read the information provided with a product is a better balance of duties and responsibilities than imposing liability for failure to warn without any evidence of actual causation. Product liability cases decided in the first half of this year may indicate a trend away from the heeding presumption. If so, good riddance.

Bradley S. Wolff, a partner at Swift, Currie, McGhee & Hiers LLP in Atlanta, practices in the areas of products and personal liability defense, with an emphasis in medical and pharmaceutical products.