Part 1: Proximate Cause Defense in Product Liability Warnings Cases

TASA ID: 4009

Jurors in product liability warnings cases strive to answer these two questions: 

1. Was the warning on this product defective?
2. Was a defect in this warning a proximate cause of this personal injury accident?

Plaintiffs do not prevail unless jurors provide a “yes” answer to both questions.  The kinds of arguments and the evidence presented for each of these questions are vastly different from each other.

Was the Warning Defective?

Arguments regarding whether or not the warning was defective involve things like reference to the ANSI Z353 Standards, issues like signal word, color, conspicuity, choice of words, whether or not the warning adequately explains the hazard and the consequences of not heeding the warning and whether or not the warning explains what to do to avoid the hazard.  All of these are items which make a warning more likely to be noticed, read, understood and heeded.  That is exactly why the standards and authorities require them.  

Plaintiffs produce alternative warnings which purport to satisfy the shortcomings of the warning on the artifact and; therefore, would be more likely to be heeded.  So far, these issues can be argued with little, if any, reference to anything about the particular person/plaintiff involved in the case at hand. 

Proximate Cause - Would a Different/Better Warning Have Prevented this Accident?

The arguments and evidence involved in answering this second question are very different from those used in regard to answering the first question.  Would a different instruction or warning have prevented the accident?  Focus is now on the plaintiff.  

The plaintiff will invariably testify that if there had been a better warning in place, then he (or she) would have heeded it and thereby would have been saved from injury.  In offering such testimony, the plaintiff is not testifying as to facts.  Instead, the plaintiff is speculating as to what he would have done under other circumstances.  Of course a plaintiff has the best knowledge of his own inner thought process, but this does not in and of itself give the plaintiff the best ability to predict his own behavior in a hypothetical situation.  Defendants will point to the inevitable bias of the plaintiff himself in making such a speculation.   A plaintiff may be testifying truthfully as to what he believes he would have done differently and yet his belief may not be justified.

What did the plaintiff actually know at the time of the accident?  This knowledge may come from a number of sources – the existing warning on the product, his experience and training, from ordinary common knowledge and common sense.

How Can a Defendant Argue that a Different (and somehow Better) Warning Would Not Have Prevented this Accident?

In order to convince a jury that a different/better warning would not have prevented this accident, defendant must show that this particular plaintiff would not have done anything different even if there had been a different/better warning on the artifact product.  Sometimes there is strong evidence that this particular plaintiff already knew and understood everything that a different warning on the product could have told him about the danger.  If so, then the warning present on the product is irrelevant.

Plaintiff’s Fail the Proximate Cause Issue When the Evidence Shows That the Plaintiff Fully Understood the Danger Without Any Reference to the Warning on the Product:

Plaintiff’s warning cases fail when the evidence shows that at the time of the accident the plaintiff clearly knew and understood the dangers without reference to any warning on the product itself.  I served as a defense expert in a case involving a young child being very severely injured by falling through a window screen in a second floor window.  The allegation was that the warning sign on the screen is defective because it was very small and inconspicuous.  The child’s mother testified that if only she had known that a window screen is not an effective or appropriate window safety barrier, then she would not have left her child exposed to such a danger.  Regardless of whether or not that window screen warning was defective, the defense pointed to the issue of proximate cause.  A year earlier, another child in that same family had fallen out through the screen of another window in that same apartment.  Surely, no warning on the window screen could have been more compelling and more effective than the prior experience of having her other child fall out.

Another case involved a worker very badly burned when using an ordinary vacuum cleaner to suck up large quantities of highly flammable acetone in a very confined space (a small potable water hold of a ship).  The vacuum cleaner had a warning molded into it warning against vacuuming flammable materials, but plaintiff argued that a better warning would have prevented this tragedy.  The defense responded that the acetone container itself had a large, prominent flammability warning which was not heeded, the foreman who ordered this use of the vacuum had significant prior experience with the flammability of acetone and most significantly that the foreman had ordered all of the other workers in that crew to get off of the ship prior to commencing with this task.  The foreman knew of the flammability danger and his actions immediately prior to the accident demonstrate that he was mindful of this danger.  

In situations like these examples, jurors do not need to explore a hypothetical of what the interaction would have been between a different warning on the product and the plaintiff, because in these situations the warning on the product is irrelevant.  The evidence shows that the plaintiff already knew everything that the warning is intended to convey. 

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