Posts tagged as:

failure to warn

“Ethan’s mother, Kelly Yi, said there was no warning about the dangers of swallowing the coins.” []


A court has awarded costs against a Dublin family that sued a restaurant for not warning that if they allowed their two-year-old to put her finger down the metal lid of a sugar dispenser, she might have trouble pulling it out again. The balky lid had to be cut off at a hospital. [Mirror]

“The flower was packaged with a warning about not being for human consumption and about the risk of staining clothing, but there was nothing about potential harm to cats, said [Charley Gee, a] Southeast Portland lawyer.” A pet cat chewed the lily’s leaves — which are toxic to felines — and required expensive veterinary care. The suit calls lilies unreasonably dangerous and says they should be labeled with cat-specific warnings. [Oregonian]


“A Colorado jury has awarded $11.5 million in a lawsuit originally brought against helmet maker Riddell and several high school administrators and football coaches over brain injuries suffered by a teenager in 2008.” While the jury rejected the plaintiff’s claim of design defect, it accepted the theory that the helmet maker should have done more to warn of concussions. “The jury assessed 27 percent of the fault for Rhett Ridolfi’s injuries, making the company responsible for paying $3.1 million of the damages.” Riddell has been hit with a wave of lawsuits from both school and professional football players. [AP, Denver Post, earlier](& Coyote)


Should a product manufacturer be held liable for not warning in other languages that are foreseeably spoken/read by some of its end users? How about if it marketed its product in some of those languages? [Nick Farr, Abnormal Use]

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Covered it in a roundup a couple of weeks back, but as a reader favorite it may as well have its own post: “A jury has awarded a Georgia woman $3 million over her husband’s heart attack, finding that his doctor should have warned the Atlanta cop against strenuous activity like the three-way sex he was having at the time he died, WXIA-TV reports.” The deceased was not married to either of the other participants in the fatal motel-room encounter. [USA Today/Freep]


The media and legal academy largely applauded the Supreme Court’s 2009 ruling on preemption, but Michael Greve deems its outcome “irresponsible and not even minimally rational”:

Under the Federal Food Drug and Cosmetics Act (FDCA), drugs sold in the United States require an FDA-approved label—the elaborate, incomprehensible (to laymen) sheets you find inside every package. Every sentence is dictated by FDA requirements, down to the font and letter size. Violations of these requirements, and the sale of drugs without the label or a different label, are subject to very severe penalties. The statutory scheme operates to the explicit exclusion of any state regulatory (administrative) scheme. What Wyeth asks us to believe is that state juries may nonetheless hold drug manufacturers liable, for accidents caused by use in direct contravention of the federal label, on the grounds that the federally required label was inadequate. Meticulous compliance with federal requirements doesn’t preempt “failure to warn” liability under state common law.

Kevin at Lowering the Bar wonders whether there’s a need for a California-specific warning.


Does disclosure matter?

by Walter Olson on December 8, 2010

Via Consumer Law & Policy, the punch line of a new study:

We follow the clickstream of 47,399 households to 81 Internet software retailers to measure contract readership as a function of disclosure. We find that making contracts more prominently available does not increase readership in any significant way. In addition, the purchasing behavior of those few consumers who read contracts is unaffected by the one-sidedness of their terms. The results suggest that mandating disclosure online should not on its own be expected to have large effects on contract content.

Regulation, of course, often goes to great lengths to mandate disclosure, and a considerable volume of private litigation is also based on theories that lack of more extensive and prominent disclosure rendered a transaction wrongful. The study is Florencia Marotta-Wurgler, Does Disclosure Matter?NYU Law and Economics Research Paper No. 10-54 [SSRN].

A customer unfamiliar with the vegetable ordered the grilled artichoke special at a North Miami Beach restaurant, and says the server should have warned that you’re not supposed to eat the fibrous, indigestible upper mass of the leaves, just the heart and pulpy bottom portion. He’s suing. [Matthew Heller, OnPoint News] More: Above the Law.


As a connoisseur of hot-coffee cases, I’m always excited to see a court get one right. The Abnormal Use blog points us to Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010). The plaintiff made the usual gamut of “design defect” and “failure to warn” claims, but the court wasn’t buying it. Note that the plaintiff claimed to be injured by the coffee at Sonic Restaurants, yet another refutation of the trial-lawyer claim that Stella Liebeck’s McDonald’s coffee was unusually hot.


The suit argues that the student wasn’t given adequate warning that attaching electrical clamps to his nipples could be dangerous. Earlier reportage on the case quoted students who accused the teacher of encouraging horseplay and making light of the dangers of mild shocks; the teacher later resigned but did not face criminal charges. [Joey Cresta, Foster's Daily Democrat/Boston Herald (Dover, New Hampshire)] More: Lowering the Bar (“Nor am I buying the Mountain-Dew-enticement allegations.”)


August 23 roundup

by Walter Olson on August 23, 2010


August 4 roundup

by Walter Olson on August 4, 2010


A product liability action filed in San Francisco alleges that “defendants failed to warn the plaintiff that playing with a sharp sword displayed in its store would result in the plaintiff slicing his hand when he attempted to place it back in its sheath.” [Kevin Underhill, Lowering the Bar](& welcome Bainbridge readers)


Following a Nevada jury’s highly controversial $500 million verdict over allegedly inadequate warnings against multiple patient use, as well as bad publicity over possible abuse by music legend Michael Jackson, “Israel-based Teva Pharmaceutical Industries recently announced it will stop production of its sedative propofol, which many worry will intensify an already existing shortage of one of the most widely used anesthetics in the United States.” [Abnormal Use, earlier]


So thinks a Michigan appeals court, reinstating (over a dissent) a suit against a maker of a muffler repair kit which allegedly should have warned of the danger of carbon monoxide emitted by the car under repair. [Pero, White v. Victor majority and dissent (PDF)] (& welcome Daniel Fisher, Forbes readers)


May 22 roundup

by Walter Olson on May 22, 2010

  • No answer at 911? “Florida Verdict May Threaten EMS Availability” [White Coat]
  • New Orleans politico Steve Theriot drops suit seeking identities of online critics [Times-Picayune and more, NYT "Media Decoder", Slabbed, earlier]
  • On a vial of anesthetic: “One patient use only.” Nevada jury finds that warning inadequate to prevent multiple patient use and awards $500 million in punitives [Carter at Point of Law, Abnormal Use] More: Ted at PoL.
  • Floodgates to litigation? “Parent Can Sue Ex for Turning Children Against Him” [NJLJ]
  • Lawyer who isn’t honest is a threat to the social order: noted Allentown, Pa. attorney gets 6 1/2 years for fraud [Legal Intelligencer, earlier]
  • “Another European Prosecution for Insulting Religion” [Volokh; pop star Dorota Rabczewska, Poland]
  • A lawyer’s advice: try to get those Rand Paul types off your jury [Turkewitz]
  • If SEIU craves respectability, maybe it shouldn’t send mobs to besiege bank execs at their homes [Nina Easton, Fortune, cross-posted from Cato at Liberty; related from PoL last year; more from Big Journalism including role of D.C. police, but note denials on last point]