|
3.10-2 Product Liability -
Failure to Warn
Revised to January 1, 2008
The
plaintiff claims that the defendant is liable under
the Connecticut Product Liability Act because it did
not provide adequate warnings or instructions to
advise users of the product that they would have to
do certain things to avoid being injured by using
the product. Failure to provide adequate warnings
or instructions, where they are necessary,
constitutes a product defect for which a product
seller is liable under the Connecticut Product
Liability Act.
The
plaintiff claims that <explain the plaintiff s
claim with regard to warnings>.
A product
seller is liable to a party who suffers injury or
loss from the use of a product if the product could
not be used safely by the ordinary consumer without
adequate instructions or warnings.
You must
decide whether a warning was necessary and, if it
was, whether the warning was adequate. In deciding
whether a warning was necessary, you may consider:
-
the likelihood that the product would
cause the harm suffered by the plaintiff;
-
the ability of the product seller to
anticipate at the time the product seller put the
product into the stream of commerce that the
expected product user would be aware of the risks
involved in using the product and the nature of the
potential harm;
-
the technological feasibility and cost
of warnings and instructions.
A product
seller has a duty to warn of hidden dangers in the
use of a product in the ordinary, customary way. A
product seller also has a duty to warn of dangers
that may result from misuse of a product if the
misuse is of a type that the product seller
reasonably should foresee.
A product
seller does not have a duty to provide a warning as
to a danger that is obviously involved in the
customary, ordinary use of the product or that is
obviously present if the product is misused.
A product
seller is not liable for failure to warn of risks
that were not known to it or that it could not
reasonably have foreseen at the time it put the
product into the stream of commerce.
Where the
product seller has provided a warning, it may still
be liable if the warning provided is not adequate to
advise the ordinary user of the nature and extent of
any danger associated with the reasonably
anticipated use, or with the reasonably anticipated
misuse of the product. In assessing whether the
warning that has been provided is adequate, you
should consider whether the danger is one that is
obvious to a user and whether the warning is placed
with proper prominence in relation to the risk to
which the warning applies. To be adequate, a
warning must be devised to communicate with the
person best able to take or recommend precautions
against the potential harm.
A product
seller that provides an adequate warning is entitled
to presume that such a warning will be heeded by the
user, and if the product is safe for use so long as
the warning is heeded, the product is not defective.
A product
seller is not liable for failure to provide a
warning if the plaintiff is aware of the danger.
Causation
If you
find that the product is defective because it failed
to provide a warning when one was reasonably
required or because the warning was inadequate, then
you will go on to consider the element of
causation. The plaintiff has the burden of proving
that the lack of a warning, or the lack of an
adequate warning, was a proximate cause of the
plaintiff’s injuries. The plaintiff must prove that
if adequate warnings or instructions had been
provided, the plaintiff would not have suffered the
harm. If the plaintiff would have suffered the harm
even if adequate warnings or instructions had been
provided, then the defendant is not liable for
failure to warn.
Authority
Notes
In Vitanza
v. Upjohn Co., 257 Conn.
365, 378 (2001), the court held that the “learned intermediary doctrine” was
applicable to product liability claims. “The learned intermediary doctrine
provides that adequate warnings to prescribing physicians obviate the need
for manufacturers of prescription products to warn ultimate consumers
directly. The doctrine is based on the principle that prescribing
physicians act as ‘learned intermediaries’ between a manufacturer and
consumer and, therefore, stand in the best position to evaluate a patient's
needs and assess [the] risks and benefits of a particular course of
treatment.” (Internal quotations omitted.) Id., 376. The learned
intermediary doctrine applies to prescription drugs;
Vitanza, and also to
prescription implantable medical devices such as pacemakers;
Hurley v. Heart Physicians,
P.C., 278 Conn. 305, 317-18
(2006).
|
