On the lecture circuit, I have sometimes referred to the “failure to warn” cause of action as the “poor man’s design claim,” not because of true poverty of wealth by attorneys asserting it, but because it is a relatively inexpensive, if circuitous or indirect, method of attacking a product’s design. Whereas the true design claim usually calls for competent expert proofs that a reasonable, practicable alternative design existed at the time of manufacture or sale that would have prevented (or mitigated) the harm, the warnings claim posits only that some (additional) verbiage, text, label, sticker or even symbol, if given, would have obviated the injury.
Facially, what is easier to scramble together? A complex design alternative that has to be practicable, that has to take into account a full range of risk-utility considerations that may need to be tested or that might even be criticized for causing other dangers to other persons in other settings? Or to allege a mere phrase or sentence or label that the expert opines would have avoided the harm?
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
