Why wacky warnings matter

David Rossmiller blogs:

My experiences growing up in NoDak and later working as a crime reporter may not be typical, and perhaps the people I came to know were by some measures outside, shall we say, the social mainstream, but my first thought when I saw these purportedly wacky, useless warning labels was this: “I can see someone doing that!” Personally I’ve seen folks do much more ridiculous things many times.

The issue is whether people doing “ridiculous things” should have a cause of action for their own failure of common sense, or whether we require manufacturers to treat all of their adult customers like infants on pain of liability.

Such overwarnings have real social costs: as numerous studies have documented, if one’s personal watercraft manual says “Never use a lit match or open flame to check fuel level,” one’s going to be less likely to slog through the whole thing and find the warnings that aren’t so obvious. In many cases, the “failure-to-warn” is really just a Trojan horse to force the deep pocket to become a social insurer. In the Vioxx litigation, Mark Lanier has accused Merck of making too many warnings, and thus “hiding” its warning of VIGOR cardiovascular data. This effectively holds a manufacturer strictly liable for failing to anticipate with perfect foresight what risks will accompany which consumers, and tailoring its warnings on that micro-level—and if anyone regrets taking the risk later, they can always complain that the warning was legally insufficient for failing to be scary enough.

The wacky warning awards are often entertaining fluff, to be sure; the marginal harm from a “Do not iron” warning on a lottery ticket is infinitesimal, and is probably there as an anti-fraud device rather than as a product-safety mechanism. But ATLA, abetted by sympathetic law professors and credulous or disingenuous journalists, has engaged in a mass campaign to make equally silly warning cases—such as the McDonald’s coffee case, where Stella Liebeck complained that the warning on her cup of coffee wasn’t “big enough” to adequately warn her not to spill her coffee in her lap and sit in the puddle for ninety seconds—aspirational, rather than outliers. The wacky warnings are the canaries in that coal mine.


  • I think the “Do not iron” warning applies to tickets printed on thermal paper. Heat turns the paper black, making it difficult to claim your prize!

  • With the Viox situation it is a clear case of Viox not giving a warning that, “failure to read all the warnings might result in injury.”

  • Do you have a link to the claim about Mark Lanier? A skeptical pro-trial lawyer relative of mine wants further proof.

  • Texas Lawyer magazine (Aug. 30, 2005):

    To show how Merck overwhelmed the FDA, Lanier filled the courtroom with 157 boxes of materials Merck had submitted to the agency in 1999 to get approval of the drug. According to the Houston Chronicle, Lanier kept stacking boxes until Lowry said she could no longer see the jury. Santanello said that Merck gave the data to the FDA on several electronic disks but Lanier had made his point. “It was more of his send-a-message theme to the jury,” Blue says. “No one but the jury had the power to tell Merck it couldn’t act irresponsibly.”

    (Keep in mind that a year later, Lanier successfully argued for punitive damages in a New Jersey case by arguing that Merck had omitted from those 157 boxes a piece of statistical analysis redundant with material in those boxes.)

    According to the New York Times’ interviews with jurors (Bill Dawson and Alex Berenson, “Working through a Decision Cut in Shades of Deep Gray,” New York Times, August 20, 2005), this was persuasive: one juror complained that the warning label on Vioxx was too long, so it was hard to see the cardiovascular data: “You had to dig through three layers to see it.”

    My working paper on Vioxx litigation needs updating, but it’s a good overview on the subject.

  • When I read “treat all of their adult customers like infants on pain of liability” I first thought “adult customers like infants on pain medication”.

    Apt, really.

  • And of course, the FDA required every one of those 157 boxes of data…

  • “and today Starbucks has gone from a local shop to a dominant national chain, despite prices several times higher than McDonald’s, because they serve their coffee hotter than McDonald’s served it to Stella Liebeck,”

    Ted, I noted the above statement in your embedded link to the McDonald’s coffee case. Are you arguing that Starbucks’ rise is due to the temperature of their coffee? Or even that McDonalds and Starbucks are competitors to any degree?

    Do you have any support for that first claim if so?

  • Starbucks is successful because they serve a product people want. People want hot coffee; if people didn’t want their coffee hot, Starbucks would be at a competitive disadvantage.

    Your other question is easily solved by a Google search for countless examples of business commentators noting that McDonald’s and Starbucks are competitors if it wasn’t already patently obvious.

  • That doesn’t answer the question. You seem to argue that the temperature McDonald’s reduced its coffee too caused them a competitive disadvantage against Starbucks. Do you have any support for that claim other than your personal observation? Are you arguing that McDonald’s no longer serves “hot” coffee?

    I guess I’ve never equated a full service fast food place with Starbucks, which often doesn’t even have a drive in window. It appears though, that McDonald’s is winning the battle in terms of revenues and stores, which would further belie your claim.

  • McDonald’s didn’t lower the temperature of its coffee.

    And, by a happy coincidence, today’s New York Times details the increasing competition between McDonald’s and Starbucks.