Warning
Since evidence of causation is weak in this case, it's hard to prove need for a stronger warning. Further -- and this what we discussed last Friday -- the FDA decided not to require mention of SJS/TEN in the Motrin label. Even under Wyeth v. Levine, that's a preemption defense. Posner goes further and injects a much-needed dose of reality. Plaintiff argued that the Children's Motrin label should have been "really scary" and added a warning of "rash" and SJS/TEN. Id. at 16. But then every label "would have had to describe as well every other serious disease that might, however infrequently, be caused or even just arguably caused." Id. at 14. That would lead to "informational overload" and would "make label warnings worthless to consumers." Id. at 15. That is a nod to reality all too often absent from product liability warning cases. Posner also discounts Plaintiff's contention that she wouldn't have purchased the Motrin if the word "rash" had been added to the Motrin warning's "allergy alert, " which already lists "hives, facial swelling, asthma (wheezing), shock." Id. at 16. We wish more courts would (1) insist that plaintiffs specify what their proposed adequate warning would say, and then (2) perform a direct comparison of that entire proposed warning with the actual warning. In context, warning causation often disappears.
To cap it off, Mrs. Robinson "didn't read or remember the warnings before taking the Children's Motrin, so it wouldn't matter what the label had said unless it had contained truly terrifying warnings that the state of medical knowledge would not have justified." Id. That little sentence would eviscerate most of the failure-to-warn cases currently burdening the judicial dockets.
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Weary of Warning Labels
There has been a spate of articles recently poking fun at some of the warning labels on consumer products. A quick survey at almost any store and the warning labels on almost every product gives the impression that everything we buy is lethal. That's not the case, however.
The huge increase in both the number and the extent of warning labels is largely a response to our litigious society. Labels warning about every conceivable misuse of a product are companies' way of trying to protect themselves against product liability suits.
Most of the product liability cases filed today include charges that a manufacturer didn't warn the user of possible dangers from using the product. That represents a dramatic shift from just twenty years ago when the majority of such suits focused on product defects that caused injuries.
One of the big spurs to product warnings undoubtedly was the infamous McDonald's case, where a woman took a cup of coffee to her car, placed it between her legs and started to drive; her legs were scalded when the coffee spilled. In the initial judgement against the company, she was awarded $2.7 million. Now McDonalds and other fast-food and take-out vendors put big warnings on their coffee cups: "Warning: Contents Hot."
Most people, except the very young or the mentally disadvantaged, would expect that hot coffee would be hot. But our courts and our judges seem to have retreated from the reasonable person standard in holding companies liable for product misuse.
Some warnings can also mislead people about real risks. For instance, warnings on baby walkers that children can fall down stairs using them misses the real danger that open stairs are dangerous for small children and parents should have a gate or rope or door in front of the steps so that toddlers don't fall down stairs, whether they're in a baby walker or not. The baby walker warnings and other product warnings may lead people to believe that they're not responsible for supervising their children or for using products properly.
Some people may think that these are the very people that need warning labels that it is important to protect those who are least able to protect themselves. But the people most likely to misuse a product probably won't read and follow the advice on the label. Reckless people won't bother they're too anxious to use the product. And children or people of less than average intelligence likely won't be able to understand and heed the warning -- if they can read.
The warnings on window screens fall into this category, with cautions that screens are not structural and are not designed to protect people from falling out of windows.
The main problem with excessive warnings is that if you warn people about everything, you may succeed in warning them about nothing. The real hazards may be lost in the information overload. With so many warnings and so many of them obvious, the average person may ignore product warnings that caution about real risks, such as wearing safety glasses when using a chipper/shredder or not using cleaning solvents near open flames.
So, is there anything to be done about the appearance of obvious warnings on products? Probably not in the short-run, unless our legal community pushes for a return to commonsense standards. In the meantime, consumers should read product warnings and directions on how to use products and remember that many more accidents are caused by misuse of products than by the products themselves.
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Real or Ridiculous?
See if you can tell which are real warnings about these products. (The answers appear at the end.)
1. Kitchen stove: "Warning: Do not burn wood in the oven."
2. Box of staples: "Caution: Staples have sharp points for easy penetration so handle with care."
3. Car sun shield: "Do not drive with sun shield in place."
4. Automobile doors: "Do not leave the car when it is moving."
5. Sled: "This product does not have brakes."
6. Marbles: "Choking hazard - This toy is a marble.
7. Ladder: "Do not overreach."
8. Hypodermic needle: "This is not a toy."
9. Child's play helmet: "This is a toy."
10. Hair dryer: "Do not use while sleeping."
11. Roller blading: "Learn how to control your speed, brake and stop."
12. Microwave oven: "Do not microwave living animals."
(H stands for hypothetical; R stands for real):
1)H 2)R 3)R 4)H 5)R 6)R 7)R 8)H 9)R 10)R 11)R 12)H
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