Posts Tagged ‘failure to warn’

FDA overwarning

One of the justifications for FDA preemption is the fear of overwarning; warning overload can be counterproductive, causing people to ignore important warnings. Thus, failure-to-warn litigation impedes safety. See “Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products,” 71 Fed. Reg. 3922 (Jan. 24, 2006); Larkin v. Pfizer, Inc., 153 S.W.3d 758, 764 (Ky. 2004).

Further evidence comes from a report (Aaron Smith, “Consumers tune out FDA warnings”, Feb. 25) suggesting that the FDA’s post-Vioxx caution has already caused the agency to be at the point of diminishing returns, as it is averaging 50% more safety alerts a year for 2005-2007 than it did in 2004, the year Vioxx was withdrawn from the market.

I discussed overwarning in other contexts on Overlawyered in Sep. 2006.

The Pop Tort: John Edwards and the Valerie Lakey case

For all the complaints about tort reformers supposedly relying upon urban legends to promote their cause, one more frequently sees trial lawyers promoting fictional versions of their victories. As Hillary Clinton and Barack Obama kowtow to John Edwards for his endorsement, it’s worth exploring the case on his record he refers to most frequently. Remarkably, not a single mainstream media organization has questioned Edwards’s self-serving version of the Valerie Lakey case. I correct this problem in today’s American:

Sta-Rite had already been putting warnings on its pool drain covers, and the 1993 case did nothing to change their product design or the warnings conveyed to buyers. The drain cover in the Lakey case was sold in February 1987 with a warning label; soon thereafter Sta-Rite began embossing the warnings on the cover. This safety innovation was used against them at trial, the argument being that they should have acted earlier. But no one could reasonably think that an additional warning to screw in the drain cover would have made an iota of difference. The cover already had holes for screws, county regulations already required the pool drain cover to be screwed down, the pool managers testified that they had done so several times in the year before Lakey’s accident—and Edwards had already recovered millions from the municipality for its failure to keep the cover screwed down.

Suit against mower manufacturer: It’s your fault my grandfather ran over my foot

The Simplicity Manufacturing riding mower, manufactured in 1994, includes the following warning, almost so obvious and over-the-top as to be wacky:


Moreover, the manual includes the following warnings:

(I) Tragic accidents can occur if the operator is not alert to the presence of children. Children are often attracted to the unit and the mowing activity. Never assume that children will remain where you last saw them.
(ii) Keep children out of the mowing area and under the watchful care of another responsible adult.
(iii) Be alert and turn unit off if children enter the area.
(iv) Before and when backing, look behind and down for small children.

Nevertheless, on May 7, 2003, in Honeybrook, Pennsylvania, Melvin Shoff backed up his riding mower and managed to run over the foot of four-year-old Ashley Berrier, resulting in its amputation. This is, Ashley’s parents complain in a lawsuit, the fault of Simplicity Manufacturing for not doing more to idiot-proof the mower. The federal district court threw out the suit based on a 2003 Pennsylvania Supreme Court precedent (involving a two-year-old and a lighter), but the Third Circuit, twelve months after the case was argued, has certified the question to the Supreme Court whether they’ve changed their mind in the last five years. The Court appears to have been swayed by the American Law Institute’s “Restatement” proposal to expand product-liability law in this area. (Berrier v. Simplicity Manufacturing (3d Cir. Jan. 17, 2008) via Steenson; Legal Intelligencer).

Tug-of-war: a thought on the failure to warn

Gruesome life-changing injuries from tug-of-war matches (e.g., Colorado, Oct. 12; North Carolina, 2003; Taiwan, 1997; Tennessee, 1995) are rare, but not unheard of. Safety measures on tug-of-war ropes are possible. Do everyday ropes, used for a variety of purposes other than tug-of-war, need warning labels? Do previous injuries put the Colorado school district on notice: i.e., does a single publicized injury now make every school district effectively strictly liable if future injuries occur? What happens when tug-warriors disregard safety rules because the obvious risk of wrapping rope around a body part is not clearly spelled out? (Keep in mind in the Stella Liebeck McDonald’s coffee case, the plaintiffs complained that the coffee-cup warning that the beverage was hot wasn’t clear enough about the risk of injury.)

Emily Bazelon on personal responsibility

Slate’s Emily Bazelon doesn’t read the owners’ manual for her car, does something the owners’ manual explicitly says not to do—recline a seat in a moving car—and hurts herself. Bazelon blames… the automaker and NHTSA for not doing more to warn her, and serves as a mouthpiece for plaintiffs’ lawyers who specialize in such arguments, lionizing one who won a $59 million verdict against Toyota for his client’s own foolhardiness.

The NHTSA official Bazelon talks to points out that she’s taking one safety issue out of context; Bazelon pooh-poohs it because, after all, it happened to her and some other people, too! But Bazelon ignores that there are several dozen other dangerous problems addressed in the owners’ manual, many of which would kill or injure far more passengers than reclined drivers’ seats. One cannot just look at the idea of putting a single additional sticker on the dashboard: the car would have to be literally wallpapered with additional warnings to cover every warning of a matter at least as hazardous as car-seat reclining, at which point we’re back to the problem of owners ignoring warnings. Bazelon simply fails to address this reality.

But, hey, I’ll join Bazelon in telling you: don’t recline your car seat in a moving vehicle. (Long-time Overlawyered readers already know this from two separate posts.) Also, don’t drive with your windows open, your doors unlocked, or your seatbelt unfastened. Reattach your gas cap after filling the tank. Look behind you and ensure the path is clear before going in reverse. Keep your eyes on the road. Don’t pass a car in a no-pass zone or drive twice the speed-limit. Sit up straight, especially in a front seat with airbags. Don’t have loose heavy objects (including unbelted passengers) in the passenger compartment of the car. Don’t permit children to play with power windows; don’t leave children unattended in a car that is on; don’t leave the car on when you’re not in it; don’t try to jump into a moving vehicle. Don’t leave your shoes loose while driving. Be careful when shifting gears. Do not violently swerve an SUV, especially if there are unbelted passengers. Always be aware of the danger of pedal misapplication. Don’t fall asleep while driving. Don’t drive recklessly, and if you do, don’t leave the road. Use your parking brake when you park. Replace a tire after repeatedly patching it; don’t drive on bald tires in the rain; and replace your ten-year old tires before you have to drive on a spare. Make sure your floor mat isn’t interfering with the pedals. Don’t drive into the back of a truck at 60 mph without braking. Et cetera.

(And welcome, Instapundit readers. Check out our vast selection of automobile and personal responsibility articles.)

And more May 17 updates

  • Google beats Perfect 10 in Ninth Circuit appeal over copyright suit over thumbnail images. (Earlier: Feb. 06, Jul. 05, Nov. 04.) [LA Times; WaPo; Bashman; Perfect 10 v. Amazon (9th Cir. 2007)]
  • Judge thinks better over Brent Coon’s attempt to intimidate local press through subpoenas. Earlier: Apr. 24. [WSJ Law Blog]
  • US Supreme Court throws out punitive damages ruling in Buell-Wilson case, lets rest of decision stand. Earlier: Jan. 4 and links therein. Beck and Herrmann also discussed the case in March in the context of a larger discussion of the appropriateness of issuing punitive damages against a company that relied on government safety standards in good faith. [LA Times; AP].
  • Big LA Times piece on the still-pending Extreme Makeover suit, where a family seeks to hold ABC responsible for an intra-household dispute over the spoils of a reality show. Earlier: Mar. 4, Aug. 12, 2005. [LA Times]
  • KFC may have won on trans-fats litigation, as David reported May 3, but they capitulate to Jerry Brown’s pursuit of Lockyer’s equally bogus acrylamide suit over the naturally-occurring chemical in potatoes (Oct. 05, Aug. 05, Aug. 05, May 05, Apr. 04, etc.). KFC will pay a nuisance settlement of $341,000 and will add a meaningless warning in California stores. (Tim Reiterman, “KFC to tell customers of chemical in potatoes”, LA Times Apr. 25).
  • McDonald’s sued over hot coffee. Again. One of the allegations is that McDonald’s failed to secure the lid, which is a legitimate negligence suit, but there’s also a bogus “failure to warn me that coffee is hot” count. [Southeast Texas Record; and a Southeast Texas Record op-ed that plainly read Overlawyered on the subject]

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.

Deep pocket files: Plaintiff: McDonald’s should’ve warned me and my boss not to be gullible

McDonald’s week continues on Overlawyered (Sep. 22; Sep. 20). McDonald’s is being sued over a trend of strip search hoaxes we discussed two years ago.

Here, a caller from a payphone in Florida tricked a Hinesville, Georgia, McDonald’s male manager and 55-year-old male employee into strip searching and molesting a 19-year-old female employee, who put up with the telephone-instructed molestation for thirty minutes before putting an end to matters. The franchise immediately fired the two men three days after the February 2003 incident, and offered the female victim counseling and a new job, but she instead quit and sued the franchise and McDonald’s. McDonald’s did warn the franchise (and other franchises) about the hoax in 1999 and 2001, (and the McDonald’s training manual now explicitly rules out strip searches of employees rather than relying on common sense) but such warnings are, of course, evidence that they should have warned more, according to the plaintiffs. The district court threw out the suit against McDonald’s, and many of the claims against the franchisee.

The defendants’ attorneys apparently have little faith that the law will have the common sense the employees lacked and blame the appropriately responsible parties rather than the deep pockets: to avoid liability they are buying into the plaintiff’s theories and seeking to blame each other in September 15 arguments before the Eleventh Circuit on interlocutory appeal. Some more aggressive defense might have had an effect: “The whole thing is really stupid,” said Senior Judge Peter Fay. (Alyson M. Palmer, “Bizarre ‘Strip-Search Hoax’ Case Before 11th Circuit”, Fulton County Daily Report, Sep. 25).

Read On…

Responses to comments on yesterday’s McDonald’s coffee posts

Several comments on yesterday’s post merit responses.

1. One commenter invokes the Ford Pinto case, which is interesting because that’s perhaps the most famous anti-reform urban legend of all. He mistakenly says that Ford’s problem there was undervaluing human life (though the figure in the memo merely repeated the NHTSA number), but, in reality, the plaintiffs sought and obtained punitive damages because Ford performed a cost-benefit calculation at all. Any manufacturer caught performing the cost-benefit calculation that the commenter believes reflects the tort system operating at its most efficient is going to be accused of “putting profits before people” and undervaluing human life, and is at severe risk of being hit with punitive damages unless the judge or jury is unusually economically literate.

2. I’m not saying the court should have thrown the case out because of the factual dispute. The jury made the wrong decision on the facts, but the judge made the wrong decision on the law: see McMahon v. Bunn-O-Matic and the dozen or so cases throwing identical theories out.

3. I agree that it’s not enough to look solely at the costs of the tort system, and that one must look at the benefits also. I don’t oppose the tort system as a whole, but there are certainly problems with the tort system that can be improved to increase the benefits while decreasing the costs. The McDonald’s case illustrates several of these problems: (a) bogus expert testimony; (b) the distorting effect of punitive damages, especially when punitive damages in a products liability case is based on the defendants’ sales, rather than the defendants’ conduct; (c) the erosion of the concept of proximate cause from the tort system; and (d) the erosion of the concept of personal responsibility from the tort system; (e) the backwards-looking “failure to warn” cause of action; (f) the system’s unscientific rejection of concepts of statistical significance.

This would be bad enough if the case was simply an outlier, a case where bad luck, a bad judge, a bad jury, and defense mistakes combined to create a wrong result, but ATLA and law professors are holding up this case as a good result, and there’s a generation of law students who mistakenly think that this is what the tort system should aspire to.

4. I mentioned in the post; they appear to have taken down their original McDonald’s coffee page. I’ve changed the link from the main Snopes page to a different post discussing the “Stella Awards” (which we debunked August 27, 2001). There, repeats the claim that the McDonald’s coffee lawsuit was legitimate, and furthers the urban legend that there’s a sinister force behind the Stella Awards—a curious claim, given that the Mikkelsons’ experience with urban legends has surely taught them that no right-wing conspiracy is needed to result in the spreading of a good yarn that isn’t true. (See also Aug. 14.) In contrast, ATLA affirmatively promotes urban legends about the Ford Pinto and McDonald’s coffee case on their page.

5. Side note about an irony of the Ford Pinto case: the litigation was sold to the American public as a godsend because Pintos were so dangerous that their gas tanks killed a thousand or more. Gary Schwartz added up the numbers, and discovered that only 28 people died in Ford Pinto fuel-fed fires—a rate lower than many other small cars. ATLA shamelessly uses the new number to exclaim that current product manufacturing snafus are “worse than the infamous Ford Pinto,” which is, of course, infamous only because of the successful propaganda of the trial bar.

Urban legends and Stella Liebeck and the McDonald’s coffee case

Thirteen courts have reported opinions looking at product-liability/failure-to-warn claims alleging that coffee was “unreasonably dangerous” and the provider was thus liable when the plaintiff spilled coffee on him- or herself. Twelve courts correctly threw the case out. Another trial court in New Mexico, however, didn’t, and became a national icon when the jury claimed that Stella Liebeck deserved $2.9 million in compensatory and punitive damages because McDonald’s dared to sell the 79-year-old hot 170-degree coffee.

The case is ludicrous on its face, as a matter of law and as a matter of common sense. Eleven years later, this should be beyond debate, yet somehow, it keeps coming up in the blogs, and we keep having to refute it. (Dec. 10, 2003, Aug. 3, 2004, Aug. 4, 2004).

Amazingly, rather than argue that the tort system shouldn’t be judged by the occasional outlier, the litigation lobby has succeeded in persuading some in the media and on the left that the Liebeck case is actually an aspirational result for the tort system, and, not only that, but that anyone who says otherwise is just a foolish right-winger buying into “urban legends” (Aug. 14, Aug. 16, and links therein). Even the Mikkelsons at have made the mistake of buying into the trial lawyer hype, calling the case “perfectly legitimate” and effectively classifying the common-sense understanding of the case as an urban legend.

But the real urban legend has to be that the case has any legitimacy. Worse, this urban legend is being taught to a generation of law students by professors like Jonathan Turley and Michael McCann. Now, any peripheral mention of the McDonald’s coffee case provokes a gigantic backlash from the left, who, while congratulating themselves on their seeing past the common-sense view of the case and being above urban legends, spread a number of urban legends of their own about the case. Witness the 200-plus comment outpouring at Kevin Drum’s Political Animal blog. This post provides a partial rebuttal to some of the things said in that thread, and will hopefully serve as a FAQ in the future.

Read On…