Consumer Protection Law | Marketing Law | Torts
Design-defect and failure-to-warn cases share the same structural elements. Just as the defendant cannot defend a case premised on defective design without knowing the specifics of how the plaintiff would redesign the product to make it safer, so with regard to defective warnings the plaintiff cannot challenge the reasonableness of the defendant's marketing or whether better warnings would have saved the plaintiff from injury without knowing the specifics of the proposed warnings. No court would accept as adequate a statement by the plaintiff that she has a general idea for a reasonable alternative design (RAD), and no court should accept a similar generalization for a reasonable alternative warning (RAW).
For understandable reasons, failure to warn is a doctrine that has tended to lack rigor. It is altogether too easy to conclude that a product seller should have said something more in order to alert a user or consumer about a risk. However, even when one can establish that there was a failure to warn, tort law requires that the omission be causally related to the plaintiff's injury. That many courts have adopted a presumption that if a warning had been given it would have been heeded does not resolve the causation problem identified in this Article. In fairness, the defendant cannot rebut the heeding presumption unless the plaintiff identifies the warning that should have been given. One of the authors suspects that some form of enterprise liability may best describe the courts' reactions to the difficulties described herein. But given the certainty that courts will continue to apply a failure-to-warn analysis, we argue that the plaintiff should be required to prove a RAW to establish a prima facie case. It is our hope that this Article will serve as the beginning of a fruitful dialogue.
Aaron D. Twerski and James A. Henderson, Jr., "Fixing Failure to Warn," 90 Indiana Law Journal (2015)