Co-authored by Brian Gross
As a defense attorney, one of the most common allegations my product liability clients face is a claim that the company “failed to warn” the end user of a potential defect in its product. With the Christmas season upon us, and due to the fact that so many of the products we purchase for our friends and family contain a wide variety of warning labels to avoid such a lawsuit, I felt it prudent to address this rather important issue in this week’s blog installment.
A warning is a statement which is meant to make someone aware of a potential danger associated with a particular product or action. A manufacturer must provide a warning when the product has a danger that cannot be removed. Generally, however, a manufacturer is not required to provide a warning for dangers which are obvious and understood. Despite that fact, due to the increase in product liability lawsuits over the past few years, manufacturers are taking care to add warnings that may seem a little outrageous – even downright laughable – to their products to avoid ending up in litigation for “failure to warn.” Some of these over-the-top warnings include:
Label: May cause drowsiness.
Product: Nytol sleeping pills.
Label: Do not use while sleeping.
Product: Vidal Sassoon hair dryer.
Label: This product is not intended for use as a dental drill.
Product: Dremel Multipro’s rotary tools.
Label: This product moves when used.
Product: Razor scooter.
Why are manufacturers taking such steps to warn the consumer of the such obvious dangers or potential dangers associated with such obvious misuse of their products? Much of it has to do with the plaintiff’s bar and the endless supply of consumers willing to sue. Even “questionable” product liability cases can lead to costly legal fees and damages. Bloomberg recently analyzed the 50 largest jury verdicts over the past few years. In 2010 alone, 15 verdicts involving “failure to warn” claims topped $25 million (up 7 from the previous year). In fact, juries in the five largest product liability cases awarded damages of $1.1 billion, a substantial increase from previous years. Several factors can be attributed to this increase in damages awarded by jurors, such as:
- The public’s view of “Big Business” and its failure to protect Joe Consumer (think BP oil spill and the recent massive Toyota automobile recall).
- High unemployment rates.
- Instability of the stock market.
- America’s stagnant real estate sales.
- America’s struggling banking industry.