Resolving the Dilemma of Nonjusticiable Causation in Failure-to-Warn Litigation – Article by Aaron D. Twerski & Neil B. Cohen

From Volume 84, Number 1 (November 2010)

Failure-to-warn cases represent a significant portion of product liability law, yet the core concepts of this body of law are poorly developed. In particular, the standard tort requirement that the injured party demonstrate a causal connection between the defendant’s violation of duty and the injury simply does not work in the vast majority of failure-to-warn cases. A substantial body of social science literature demonstrates that, in all but extreme cases, it is impossible for an injured party to demonstrate by a preponderance of the evidence—and thus for a court credibly to conclude—that the party would have acted differently had a warning been provided. Thus, a rigorous application of the causation requirement would result in defeat for most injured parties. Yet, some injuries certainly could be prevented by effective warnings, even if those beneficiaries cannot be easily identified. A legal system that denies recovery to virtually all injured parties because it cannot ascertain which parties’ injuries would have been prevented undercompensates victims and underdeters dangerous practices by product manufacturers and distributors, and thus does not fulfill the goals of the tort system. Some courts and commentators have recognized this problem and have put forth a variety of mechanisms to resolve it. Those mechanisms—such as “heeding presumptions” and enterprise liability—suffer from the opposite problem: they compensate injured parties without regard for whether there is a causal connection between the lack of a warning and the injuries. The result is overcompensation of plaintiffs, overdeterrence of manufacturers, and underdeterrence of risky consumer conduct. This too fails to fulfill the goals of tort law. In this Article, the authors propose eliminating causation as an independent requirement in most failure-to-warn cases and instead determining an injured party’s recovery by allowing proportional recovery, taking into account both the severity of the manufacturer’s fault in failing to warn of the dangers associated with its product and the likelihood that the plaintiff’s injuries would have been prevented by a warning. Such a system would recognize that some failures to warn are more egregious than others and would generate a closer match between aggregate compensation and aggregate injuries caused by a failure to warn.



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