torts 2 deck 7

Question 1

the heeding presumption

Answer 1

Restatement (Second) §402A, comment j, p. 695:
“Where 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 defective condition, nor is it unreasonably dangerous.”

Question 2

the learned intermediary rule

Answer 2

The learned intermediary rule applied.
Physicians played a “significant role” in
Prescribing the contraceptive Norplant
Educating their patients about the benefits and disadvantages to using it.
The manufacturer’s aggressive direct-to-consumer marketing campaign did not affect the physician’s duty to warn.

Question 3

who is a learned intermediary?

Answer 3

Pharmacists? Note 2, p. 748
Duty to fill a prescription correctly, inform doctors if prescription is for too high a dose or questionable for other reasons, but . . .
No duty to warn patients of the risks of medication.
Dispensers of mass vaccinations? Note 3, p. 749
No physician is available
Manufacturer has duty to warn
Now federal law establishing a no-fault compensation system

Question 4

once the duty to warn has been established…

Answer 4

The questions are:
Was there a warning?
Where was the warning stated?
Is it in a place where the consumer will see it?
What did the warning include?

Question 5

adequacy of the warning

Answer 5

Warning must be
“comprehensible to the average user and conveying a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person.”

Question 6

standardized warnings

Answer 6

State legislatures have tried to help
Michigan statute, for example:
Allows for FDA warnings to be an absolute defense in duty to warn cases for drugs lawfully on the market, unless . . .
the drug manufacturer during the drug approval process “intentionally withholds from or misrepresents” to the FDA information about the drug that results in it obtaining an approval that would have been denied if accurate information had been supplied.

Question 7

minority rule

Answer 7

A manufacturer is charged with a duty to warn of risks without regard to whether the manufacturer knew or reasonably should have known of the risks, but . . .
This rule has “thin judicial support”

Question 8

goal of the law

Answer 8

To induce conduct that is capable of being performed.

If a manufacturer can’t know the risks, should we hold the manufacturer liable for not warning of those risks?

Question 9

courts view

Answer 9

“The goal is not advanced by imposing liability for failure to warn of risks that were not capable of being known.”

Question 10

is this a better rule?

Answer 10

Defendant will be liable if it fails to warn about risks that were
reasonably foreseeable at the time of sale or
could have been discovered
by way of reasonable testing prior to marketing the product.

Question 11

any warnings?

Answer 11

was the warning adequate?

Question 12

what is an adequate warning?

Answer 12

A “warning need only be one that is reasonable under the circumstances.”
“clear and specific”
Manufacturer does not have to warn of every mishap or source of injury that the mind can imagine flowing from the product.

Question 13

the test for adequate warning

Answer 13

more detailed warning balanced against the costs

Question 14

don’t forget the first question

Answer 14

Is there a duty to warn at all?
What if danger is obvious?
A question of fact that will depend on the person using the product and the product itself.

Question 15

is the duty to warn doomed?

Answer 15

The cause of action can survive
even in cases where a product modification
blocks liability for design defect, so . . .
The court looked at the facts and took into account the fact that
“there exist people who are employed as meat grinders and who do not know” about the importance of the guards that should be on meat grinders.

Question 16

duty to warn about patent defects?

Answer 16

Garrison v. Heublein (7th Cir. 1982), note 3, p.759
Drinking vodka for 20 years
Defendant had no duty to warn of risks that were “common knowledge.”

Question 17

asbestos case on ship issues, who to blame, what was the question?

Answer 17

“whether a manufacturer has a duty to warn when the manufacturer’s product requires
later incorporation of a dangerous part—here, asbestos—
in order for the integrated product to function as intended.”

Question 18

asbestos case on ship issues, who to blame, what was the question?

Answer 18

“whether a manufacturer has a duty to warn when the manufacturer’s product requires
later incorporation of a dangerous part—here, asbestos—
in order for the integrated product to function as intended.”

Question 19

tort law principles

Answer 19

Tort law imposes “a duty to exercise reasonable care” on those whose conduct presents a risk of harm to others.”

Question 20

The “most appropriate for this maritime tort context”

Answer 20

Foreseeability that the product may be used with another product or part that is likely to be dangerous is not enough to trigger a duty to warn.
But . . .

Question 21

A product manufacturer has duty to warn when . . .

Answer 21

(i) its product requires incorporation of a part,
(ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and
(iii) the manufacturer has no reason to believe that the product’s users will realize that danger.

Question 22

asbestos litigation

Answer 22

Asbestos is an “unavoidably dangerous product.”
May not be designed defectively, but
Manufacturers have a duty to warn about the dangers.
1973 case holding manufacturers liable for failing to warn.
The floodgates opened.
Manufacturers went bankrupt.

Question 23

the problem

Answer 23

SJS/TEN is a very rare but serious skin disease that caused blindness in one eye and the loss of 60% of the plaintiff’s skin
How rare?
What other side effects?
How many does the manufacturer have to warn about?
What do too many warnings do?