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Question 1

If a defendant fails to warn on his product, who can be liable?

Answer 1

Everyone in the marketing chain although indemnity is available

Question 2

What are some things that are considered obvious dangers that you don’t have to warn about?

Answer 2

Slingshots, guns, rolling chairs, diving from heights, etc.

Question 3

What is the duty to warn about foreseeable misuse?

Answer 3

Manufacturers must warn when the product is used in a foreseeable way in a commonly known area of conduct, even though it wasn’t the way the product is intended to be used

Question 4

What is an example of a time that a manufacturer needs to warn about foreseeable misuse?

Answer 4

It is common and foreseeable that someone will use a kitchen chair to reach a high shelf

Question 5

Manufacturers are required to anticipate what?

Answer 5

The environment where the product will be used and the risks of misuse in that environment

Question 6

What does read and heed mean?

Answer 6

When a warning is given, the seller can assume it will be read and heeded

Question 7

If no warning is given, does read and heed apply?

Answer 7

Yes, the plaintiff benefits from the assumption that had there been a warning it would’ve been read and heeded

Question 8

What is the Learned Intermediary rule?

Answer 8

Manufacturers of prescription drugs have a duty to warn medical professionals of material risks, and the professional then must use his judgment/discretion to convey that info to the patient

Question 9

If drugs are being marketed and given directly to the consumer, does the Learned Intermediary rule apply?

Answer 9

No, the warning must be given directly to the consumer

Question 10

What is an example of when the Learned Intermediary rule would not apply?

Answer 10

Mass innoculations

Question 11

If the seller can foresee that the warning to the immediate buyer isn’t enough to reduce risk to others, what is the duty?

Answer 11

The duty to warn extends to people who foreseeably would be endangered by the product, including members of the public

Question 12

Would a lawnmower company have a duty to warn users of rocks that can hit bystanders?

Answer 12

Yes, because they could foresee that the warning to the immediate buyer wouldn’t be enough to reduce risks to likely users

Question 13

If a product is sold in bulk, who must the seller warn?

Answer 13

The seller must warn the immediate purchaser of any risks, and then that purchaser has to warn the next purchaser (seller can rely on buyer to use the goods properly and to pass on warnings to the ultimate consumers)

Question 14

If a product is likely to cause an allergic reaction in only a small portion of the population, what is the duty?

Answer 14

Duty to warn if the reaction would be serious or deadly (because severity of the injury is the deciding factor about duty to warn)

Question 15

If a Polio vaccine infects one in 1 million people with polio, does that require a warning?

Answer 15

Yes, because the severity of the injury is so great

Question 16

If an allergic reaction to a product is only mild, must there be a warning?

Answer 16

Only if a substantial number of people would likely experience it

Question 17

What is the duty to warn professional or sophisticated users?

Answer 17

There’s no duty to warn members of the trade or profession about dangers generally known to the group

Question 18

What is the rationale behind not having to warn members of a trade or profession about dangers generally known to the group?

Answer 18

The user’s knowledge of the product’s danger is the same as prior notice

Question 19

Would you have a duty to warn farmers about agricultural equipment dangers?

Answer 19

Probably not, because they already know about them since they are sophisticated users of the product

Question 20

If a defendant represents the product differently than it is, and injury results, is the plaintiff entitled to damages?

Answer 20

Yes

Question 21

When is the manufacturer liable for postsale warnings?

Answer 21

• if the people that must be warned can be IDENTIFIED
• the warning can be COMMUNICATED
• the RISK of harm outweighs the burden of giving the warning

Question 22

What is an example of a time that you would have to give a post sale warning?

Answer 22

If a car manufacturer later finds out about a defect, they would have to warn purchasers and dealers and remedy the defect

Question 23

What is required for the causation element for defective products?

Answer 23

Plaintiff must show the defendant’s failure to warn was the cause in fact and proximate cause of the injury, and the product was defective when it left defendant’s control

Question 24

What must be proven for actual cause for defective product?

Answer 24

But for the defect, the plaintiff wouldn’t have been injured, or the defect was a substantial factor in the injury

Question 25

What is the best way to prove the defect was attributable to the defendant?

Answer 25

By showing it was in existence at the time it left defendant’s control

Question 26

What is a sticky issue for causation for product defect?

Answer 26

Sometimes you have to prove that intermediate handlers didn’t mistreat or alter the product

Question 27

If an employer takes off a safety device, and his employee is injured, can a suit go against the manufacturer?

Answer 27

No, that would be superseding

Question 28

Is negligent handling of a product after it leaves defendant’s control considered foreseeable?

Answer 28

Yes, so that wouldn’t be superseding

Question 29

If an intermediate handler discovered a product defect and knowingly passed it on in the stream of commerce to the plaintiff, who is responsible for the defect?

Answer 29

The wrongdoing shifts from the manufacturer to the handler

Question 30

If a manufacturer adequately warns an intermediate handler of the dangers of a product, and that handler fails to communicate the warning to the plaintiff, who is liable?

Answer 30

The handler is considered the proximate cause of the injury

Question 31

If a purchaser gets notice of an auto recall but doesn’t return the car for replacement, and later sells it to a third-party, and doesn’t advise of the recall, is the manufacturer still liable for the defect?

Answer 31

No, the original purchaser is liable to the new owner in negligence

Question 32

If a doctor has knowledge of a new drug’s potential hazards, but doesn’t disclose them to the patient, who is responsible for the injury?

Answer 32

The doctor is the superseding cause of the injury and the manufacturer is not strictly liable except in mass immunization situations because the manufacturer has to warn the ultimate recipient

Question 33

What is failure to warn for SPL?

Answer 33

Failing to provide information about a product can make what would’ve been a safe product a dangerous and defective one