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Aaron D. Twerski & James A. Henderson, Fixing Failure to Warn, 90 Ind. L.J. (forthcoming, 2014), available at SSRN.

A major accomplishment of the American Law Institute’s 1998 Restatement Third of Torts: Products Liability project is its disaggregation of product defects into categories warranting distinct legal treatment: manufacturing (or construction) defects, design defects, and failure to warn. Indeed, this tripartite approach is at the core of the Restatement Third project, which was touted as “an almost total overhaul of Restatement Second as it concerns the liability of commercial sellers of products.”

It may then seem surprising that James Henderson and Aaron Twerski—joint reporters for the Restatement Third project—have second thoughts about the categories they so adeptly forged.

In “Fixing Failure to Warn,” Henderson and Twerski “now believe that too much has been made of the difference [between design defect and failure to warn]” and propose a simple, albeit powerful fix for a “doctrine in distress.” Namely, the former reporters would import the “reasonable alternative design” requirement from the design defect test into the realm of failure to warn, requiring plaintiff to propose a “reasonable alternative warning” in order to make out his prima facie case.

Henderson and Twerski’s proposed reform is best understood in the context of the “Tale of Two Restatements” in products liability law. Before the Third Restatement: Products Liability was adopted, the Second Restatement’s Section 402A (and extensive comments) was the basic text of modern products liability law. Issued in 1965, Section 402A adopted a broad strict liability rule for product defects, governed by the consumer expectations test. The issuance of this Restatement section coincided with an expansionary era in tort liability; an era marked by such developments as the rise of crashworthiness theories, the decline of the open and obvious defense, and expansive definitions of product defects. Tort litigation soared during this period, which lasted until the early 1980s.

In many ways, the Third Restatement reflects the transformation of products liability law after this period. And, in equally significant ways, it facilitated that transformation. By defining a distinct liability rule for each type of defect (manufacture, design and warning), it helped contract the heretofore expansive liability. It maintained the strict liability rule for manufacturing defects, but imposed a lower, “reasonably safe” standard in the realms of product designs and warnings. It also rejected the consumer expectations test, which it perceived as a vehicle for excessive liability, in favor of the negligence-inflected risk-utility test.

Henderson and Twerski do not revisit these standards; their revisions target how those standards are met.

The Third Restatement requires design defect plaintiffs to show that a “reasonable alternative design” exists that would have made the product at issue less dangerous. This requirement is embedded in the very definition of what a defective product is; namely, one where “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller . . . and the omission of the alternative design renders the product not reasonably safe.”

Unfortunately, the definition of warnings defect is less clear. The Third Restatement defines such defects as “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller . . . and the omission of the instructions or warnings renders the product not reasonably safe.”

This standard, which has bedeviled courts and commentators alike, is in the crosshairs of Henderson and Twerski’s revision campaign. They argue, persuasively, that the inclusion of a “reasonable alternative warning” requirement—akin to the successful “reasonable alternative design” requirement—is a move in the right direction.

The ultimate goal in products liability law—i.e., “optimal levels of safety”—is easy to state but far more difficult to map out. The Third Restatement aimed to give manufacturers the “incentives . . . to achieve optimal levels of safety in designing and marketing products,” but further recognized that “optimal” does not mean “as safe as theoretically possible.” Because of the costs associated with increasing product safety (costs that might include keeping a potentially salutary product off the market altogether), “[s]ociety does not benefit from products that are excessively safe . . . any more than it benefits from products that are too risky. Society benefits most when the right, or optimal, amount of product safety is achieved.”

In their article, Henderson and Twerski insightfully highlight an important similarity between design and warnings: both are “untaken precautions that would have increased the safety of the product use and consumption and reduced or prevented plaintiffs’ harm.”

The alternative design test is well suited to achieve optimal product-design safety, assuming courts can properly weigh the costs and benefits of the alternative proposed design. Redesign, though more costly than warning modifications, is more effective in achieving enhanced safety, as it relies entirely on a manufacturer that is, relative to end users, far better equipped to assess the risks of one design as compared to another.

Failure to warn cases are more complicated because the efficacy of warning labels depends entirely on an end user’s difficult-to-predict behavioral response to the instructions or warnings provided. Judges and academics often incorrectly assume that more information is always better, yet studies confirm the existence of “information overload” and “warnings dilution” where consumers make poorer choices as the amount of information increases.

Henderson and Twerski’s “fix” would focus attention on the notion of an “optimal” amount of information. They argue persuasively that “requiring the plaintiff to identify specifically what, how, and to whom the defendant distributor should have communicated additional risk information would contribute significantly to achieving a sensible, realistic assessment of the costs and benefits associated with providing allegedly better warnings.”

The authors believe their proposed revision will not only clarify the definition of defect but will also “add significantly to the clarity of the analysis necessary to determine but-for specific causation.” At the same time, Henderson and Twerski are realistic about their proposed revision’s ability to overcome the crucial “heeding presumption”—the presumption that had there been a sufficient warning, the plaintiff would have heeded the warning and avoided the harm. This presumption, which allows a plaintiff to get to the jury on a warnings case once a warning defect is established, essentially shifts the burden of proof to the defendant to rebut the presumption of causation. The heeding presumption has been overcome with such evidence as “the user was blind, illiterate, intoxicated at the time of use, irresponsible or lax in judgment,” but is typically extremely difficult for the defendant to rebut.

Henderson and Twerski make a persuasive case that “the heeding presumption cannot operate fairly unless plaintiff provides a [reasonable alternative warning] since defendant cannot rebut the presumption without knowing the content of the warning.” Their fix would presumably arm defendants with (slightly) better odds at rebutting the heeding presumption.

Henderson and Twerski “hope that this essay serves as the beginning of a dialogue on this issue.” I am persuaded that this provocative article will achieve that goal.

Cite as: Catherine Sharkey, A Doctrine in Distress, JOTWELL (July 9, 2014) (reviewing Aaron D. Twerski & James A. Henderson, Fixing Failure to Warn, 90 Ind. L.J. (forthcoming, 2014), available at SSRN),