Warning: Reading This Blog Post May Stimulate Brain Cells

By Kenneth R. Costa on December 22, 2011

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.

Arguably many factors have driven our current “crisis of confidence” in Corporate America, some rightly deserved and some perpetuated by the media. Nevertheless, a case can be made that as a result of these feelings, jurors are using the courtroom as a vehicle to right the perceived wrongs of Corporate America. Of course there are plaintiffs’ counsel ready, willing and able to show them how, supporting the contention that levying astronomical verdicts will “punish” big business. In doing so, juries are hurting these companies right where it counts – in the wallet. Never mentioned is the duty of the consumer to exercise personal accountability and reason. If people simply do not have enough common sense to avoid holding a chainsaw by the “chain” end during operation, no warning label could or would ever act as a deterrent. In these instances, hitting a company for a large verdict is not only unfair, but in some instances creates rippling effects that impact not only the individual defendant, but an entire industries’ economic growth. If this dangerous trend continues to grow, we will likely see more legislative support for tort reform as a solution to these outrageous awards. Perhaps we should look to West Legal blogger Dan Pero who recently posted an article in which he discusses Texas’s “loser pay” legislation and the effect it has had on improving the climate for businesses in the Lone Star State. Now other states including California and Georgia are following suit. The institution of such reasonable measures helps ensure that before a case is brought to trial, there exists real evidence of negligence and helps protect responsible manufacturers from spending millions of dollars in legal fees to defend against frivolous claims. In the meantime, a reasonable manufacturer should continue to warn concerning obvious dangers associated with the use of its products, as well as against any potential misuse of its product. That may be its only protection against frivolous product liability suits by those who refuse to take responsibility for their own actions.