DANGER AHEAD: THE CHANGING FACE OF FAILURE TO WARN CLAIMS

By Michael Drahos, Mark Greene, Jeffrey James, and Larry Smith

Failure to warn claims are a standard part of Defense attorneys involved in product Language-Related Issues and liability litigation are familiar with claims al- Adequacy of Product Warnings leging failure to warn against a manufac- litigation, and the turer or seller. The typical failure to warn The sufficiency of a warning may governing claim is fairly straightforward: the plaintiff be attacked on the basis of those claims is asserts that the defendant placed inad- and in . To recover on equate warnings of potential hazards on a warnings claim in negligence, the well developed. or with the product and the lack of proper plaintiff must establish that the manufac- However, plaintiffs warnings was a proximate cause of harm turerfailed to exercise reasonable care sometimes assert to the plaintiff. Not all failure to warn to provide information in a reasonable about creative theories claims are so basic, however. Many such manner to an appropriate person claims have wrinkles that do not allow the a foreseeable risk that was significant about a failure to standard analysis to be used, whether enough to justify the costs of providing warn. This article it involves a unique argument for insuf- the information.' Meanwhile, the duty to describes three ficiency or the targeting of an uncommon warn in a strict liability cause of action is that a prod- such theories: defendant. Plaintiffs try to assert these based on the simple notion non-traditional claims in the hope of find- uct is defective if the warning is insuffi- warnings involving ing additional sources of recovery, even if cient.2 In contrast to a negligence claim, language barriers, the outlook for success may appear bleak. where the plaintiff must prove a duty a pre- or post- In this article, the authors identify owed by the defendant to him or her, a requires only proof sale duty to warn some of these potential nuances and ex- claim for strict liability amine what arguments may be available of defect. on the part of a for a defense attorney encountering them Regardless of whether the theory salesperson, and in practice. First, this article discusses the of liability is asserted via a negligence one manufacturer's situation of a failure to warn claim based or strict liability claim, the central issue warning in ques- duty (if any) to on language-related issues (e.g. English- is whether or not the only instructions). Next, the article delves tion was adequate. To be adequate, provide warnings into the situation of pre- and post-sale a warning must be communicated "by about a product duties to warn owed by salespersons. Fi- means of positioning, lettering, color- made by another nally, the article weighs in on whether one ing and language that will convey to the manufacturer. manufacturer can be liable for inadequate typical user of average intelligence the warnings relating to products made by information necessary to permit the user another manufacturer. to avoid the risk and to use the product

MICHAEL DRAIIOS is a shareholder in the Palm Beach office of Fowler White Burnett, P.A. He l~ ~ ~ _ ~I focuses his practice ou ehe defense of products liability ai d related litigation, such as catastrophic ~_~ retailers s a`~ ~~ ~,x~ '~` c - personal injury and wrongful death. He represents leading manufacturers, disreibutors and in actions Uy individual plaintiffs, class actions and complex aggregate liaUility matters. '-—-= -- - MARK GREENE is the Practice Group Leader of the Product LiaUiliry and Technology Group of ~ Banker Lopez Gassier P.A. and currently serves as Chairperson of the PDLA Product LiaUiliry Committee.

JEFFREY JAMES is a shareholder in the Tampa office of Banker Lopez Gassier P.A. He regularly represents defendants in professional liability matters (e.g., attorneys, accowitants, engineers, etc.) and personal injury litigation, with a specific emphasis on airlines and aviation injuries.

t ~ --~ LARRY SMITH is a founding partner of Southern Trial Counsel ~ PLC, located in Orlando, He regularly defends American and global companies in complex, catastrophic, or otherwise high-expo- sure personal injury cases throughout Florida and the southeast He currently serves as Co-Chair of the FDLA Product Liability Committee.

TRIAL ADVOCATE QUARTERLY -WINTER 2014 -28- safely."3 Ultimately, a warning must verdict in favor of the plaintiff, the Su- adequate, must contain language "(1) be designed so it can reasonably preme Court of New Jersey granted other than English or pictorial warn- be expected to catch the attention of certification. Upon review, the court ing symbols."'o the consumer;(2) be comprehensible determined that the written warning However, the Middle District of and give a fair indication of the spe- provided was inadequate to meet the Florida specifically rejected this rea- cific risks involved with the product; defendants duty to warn of dangers soning in Medina v. Louisville Ladder, and (3) be of an intensity justified by inherent in the use of the product in Inc." In Medina, the plaintiff alleged the magnitude of the risk."4 light of the "unskilled orsemi-skilled that a ladder manufactured by the One of the first cases to address nature of the work and the existence defendant was defective because it the adequacy of a warning written of many in the work force who [did] lacked warnings and instructions in only in English was Hubbard -Hall not read English."8 Spanish. The ladder carried a warn- Chemical Company v. Silverman. 5 Several other courts have like- ing label in English with an English- In Hubbard-Hall, two migrant farm wise determined that the necessity of only instruction manual. After pur- workers were killed after being foreign language warnings is a ques- chasing the ladder, the plaintiff stated exposed to elevated levels of insecti- tion of fact for the jury. For example, that he was going to try and install it cides. The workers had limited or no in Stanley Industries, Inc, v. W.M. himself, but noticed that the instruc- ability to read Barr & Co.,9 tions were in English. As a result, in English. the plaintiffs he hired a local handyman Although to help asserted him install it. However, the handy- evidence was The adequacy of a warning is negligence, man also could not read presented English and fact-intensive and may present a strict liability subsequently installed the ladder that the sub- and breach contrary to the installation ject warning jury issue when language barriers instruc- of war- tions. The defendant filed a motion label, written exist between ranty claims for summary judgment and in English, the manufacturer a motion against the in limine challenging the plaintiff's had been ap- and the most likely ex- users of a defendants, pert. At the hearing, plaintiff's coun- proved by the the manu- sel advised the court that Department product. the entire facturerand case "stands and falls on the issue of of Agricul- ~ ._ ~ ~ _ ~" retailer. whether the defendants were legally ture, the jury The plaintiff obligated to furnish Spanish warn- ultimately determined that the defen- alleged that a fire in its facility was ings and instructions." Although rec- dant had not exercised reasonable caused by the spontaneous combus- ognizing the Hubbard-Hall, Campos, care in giving adequate warning and tion of rags soaked in oil that were and Stanley cases that came before instruction. Upon review, the First used by plaintiff's employees to treat it, the court granted the defendant's Circuit affirmed the decision, holding a cutting table. The two employees motion for summary judgment. In so that the jury could have reasonably who used the oil were brothers from holding, the court specifically de- believed that the defendant should Nicaragua whose primary language clined to follow the Stanley opinion, have foreseen that its admittedly was Spanish and who could read calling it "isolated precedent" and dangerous product would be used very little English. The defendants determined that there was no indica- by, among others, "persons like the filed a joint motion for summary judg- tion that Florida law imposed a duty plaintiffs who were of limited educa- ment against the plaintiff's failure to on manufacturers and sellers to tion and reading pro- ability."6 warn claim, arguing that the plaintiff vide bilingual warnings Nearly on consumer twenty years later, the could not establish proximate cause products.12 Supreme Court of New Jersey faced because its employees would not The plaintiff's recognition that a similar issue in Campos v. Fires- have acted differently given their a warning is present is sometimes tone Tire &Rubber Co.' In Campos, inability to read the label before enough to obtain summary judgment, the plaintiff was injured at work while using the product. In response, the even if the content of the message assembling a truck tire. Defendant plaintiff submitted evidence which itself is not comprehended by the Firestone had delivered manuals de- revealed that both the manufac- reader due to a language barrier. scribing the proper method of prepar- turerand retailer had regularly and For example, in Farias v. Mr. Heater, ing the tire to its customers, including actively advertised in the Miami Inc.,t3 the plaintiff asserted a negli- the plaintiff's employer. Firestone area had on Hispanic television, on four gent failure to warn claim against the also provided the plaintiff's employer different Hispanic radio stations and manufacturers of a propane heater, with a chart that was to be kept on in aSpanish-language newspaper. arguing that the defendants should the wall that contained instructions The court ultimately denied the mo- have provided bilingual warnings on safety precautions. However, the tion for summary judgment, holding as to the dangers of operating the plaintiff argued these actions were that "given the advertising of the propane heater indoors. The defen- inadequate and did not sufficiently defendants' product in the Hispanic dants argued that they were under warn him of the danger associated media and the pervasive presence no such duty to do so. They further with the product because he could of foreign-tongued individuals in the pointed to the plaintiff's own tes- not read or write in English. After the Miami workforce, it is for the jury timony that she made no effort to appellate division reversed a jury to decide whether a warning, to be understand the written instructions

TRIAL ADVOCATE QUARTERLY -WINTER 2014 -29- or read the manual despite recogniz- Ramirez v. Plough, Inc.,20 the plaintiff because the plaintiff failed to present ing the word "caution," which she minor contracted Reye's syndrome evidence sufficient to raise a reason- understood to mean "danger." In after his mother gave him an aspirin able inference that the defendant support of its reasoning granting the manufactured and distributed by the knew its product would be imported defendants' summary judgment, the defendant. The plaintiff alleged the to the United States. To that end, the court explained that limited occa- defendant was negligent because court noted there was no evidence sions under Florida law allow for the it distributed the product with warn- that the defendant a) advertised in judge to decide the adequacy of a ings only in English. Recognizing the United States; b) had knowledge warning when such warnings are the importance of uniformity, the that its direct customers sold prod- found to be "accurate, clear, and court concluded that the rule for tort ucts in markets outside of Japan; c) unambiguous."14 Applying a "totality liability should conform to state and sold any products to a United States of the circumstances" analysis, the federal statutory and administrative vendor; or d) derived any economic court determined that the warnings law.21 Specifically, the court held that benefit from the importing of the included not only the graphic depic- because both state and federal law product to the United States. tions that the plaintiff testified that required warnings in English but not As the world is quickly becoming she relied upon, but also English in any other language, a manufac- more of a global economy, product written instructions that she was both turer may not be held liable in tort for warning theories will inevitably con- unable and unwilling to read. Further, failing to label a nonprescription drug tinue to evolve, requiring manufactur- the court recognized that the plaintiff with warnings in a language other ers and their defense attorneys to understood and was aware that the than English.22 In determining the continue to stay ahead of the curve. words "danger," "warning" and "stop" applicable standard of care, the court In order to do so, manufacturers will were all contained in the product leaned heavily on the Food and Drug need to develop more effective warn- manual, "yet she did not think it was Administration, noting its "experience ing and instruction labels that feature important enough to have an Eng- with foreign-language patient pack- pictorials to provide the "accurate, lish speaker explain the warnings to age inserts for prescriptive drugs is clear, and unambiguous" warnings her."15 "Such willful ignorance," the instructive," and "the United States needed for an increasingly diverse court explained, "is certainly akin — if is too heterogeneous to enable consumer base. not precisely the same — as refusing manufacturers, at reasonable cost to read the warnings at all."'s and with reasonable simplicity, to A Salesperson's Duty To Warn A warning accompanied by an determine exactly where to provide effective pictorial can also rebut alternative language inserts."23 Plato wrote that necessity is the the language theory altogether. For Ajurisdictional argument may mother of invention. Out of necessity, example, in Henry v. General Motors also overcome the language issue. claimants have attempted to carve Corp.," the court granted summary For example, in Fuentes v. Shin Cat- out alternative paths to a manu- judgment in favor of the defendant erpillar Mitsubishi, Ltd.,24 an unpub- facturer's liability. As the two cases despite the fact that the plaintiff lished opinion, the court faced an un- below25 demonstrate, that path may was illiterate and could not read the usual situation where the plaintiff was include focusing on salespersons or product warning. The plaintiff, who arguing that a warning was defective other employees of the manufacturer. was left a paraplegic when a truck because it was not written in English. Naming salespersons as defendants manufactured by the defendant fell Specifically, the plaintiff alleged that or alleging representations (or lack off a jack and struck his shoulders, he was injured while using a wheel of them) by salespersons raise the asserted claims for negligent failure loader and claimed that the incident broad question of who within the to warn and to instruct, arguing that was caused by inadequate warnings chain of distribution owes a duty to the warnings did not sufficiently com- that were written only in Japanese. warn the end consumer of a product municate how and where the jack The defendant argued that as a about potential hazards, and the should be connected to the truck dur- Japanese manufacturer, which sold scope of that duty. It is probably an ing use. However, the plaintiff testi- products only to Japanese buyers, it overstatement to conclude that such fied during his deposition that he had had no duty to provide warnings in attempts are novel; rather, they may seen a yellow stick on the jack and English. Upon review, the court noted represent a trend that practitioners knew that it signified a warning, but that the determination of whether should watch for. did not ask anyone what it said. The a warning is feasible and effec- In the first scenario discussed defendant argued that no factual dis- tive involves a consideration of the below, the plaintiff asserted a claim pute existed as to whether or not the language in which the warning must for failure to warn against an inde- "warning was communicated to the be given. The court reasoned that if pendent salesperson rather than the ultimate user."'a The court agreed, a Japanese manufacturer places a manufacturer of the product. In the holding that if the user is aware of a product in the stream of commerce, second scenario, the plaintiff sought warning but ignores its language, the and it is reasonably foreseeable that to avoid an alteration/misuse defense manufacturer's negligence in drafting the product will be used in the United through apost-sale visit to a work the warning ceased as a matter of States, safety warnings regarding the site. Both are attempts at expanding law to be a cause of the injury.'9 risks of operation should be in Eng- traditional liability for failure to warn. In some instances courts will turn lish. However, it granted summary to federal agencies for guidance. In judgment in favor of the defendant

TRIAL ADVOCATE QUARTERLY -WINTER 2014 -30- Duty OfAn Independent doctrine. 30 Plaintiffs often allege that A Salesperson's Post-Sa/e Salesperson To Warn a duty was owed to the plaintiff and Duty to Warn the doctor or to the plaintiff through In the case of pharmaceuticals the doctor. However, Florida law Another way in which plaintiffs and medical devices, plaintiffs does not often recognize a duty owed to a assert liability against sales rep- face a preemption challenge. plaintiff 26 Even in such instances and such resentatives to augment a claim if the court denies preemption allegations or should be met with a mo- against a manufacturer is alleging delays ruling on the issue, the tion to dismiss. care- failure to warn following the sale of a fully worded language in package Product liability cases require product. There are, of course, tradi- warnings may lead to summary fact-intensive judg- pleadings in order to tional ways in which apost-sale duty ment on the adequacy of the properly allege warn- a cause of action. to warn may arise —recalls, for ex- ing. Wary of such a disappointing Plaintiffs often fail to allege sufficient ample. These however are premised outcome, plaintiffs push to enlarge ultimate facts as required. Instead, on the identification of a defect that the pool of possible defendants the defendant who is often presented with is present at the time the product is arguably owe them a duty to general warn. or vague complaints backed sold but does not manifest itself until Generally, the duty of with a a salesper- prom- the product son and whether he or she is consid- ise to tie up has been in ered part of the chain of distribution the loose the field or in appear to hinge on his or her ends follow- involve- Because product liability cases use for some ment in the manufacturing process ingdiscovery. period of and control over and/or the Case law are fact-intensive, crs d matter ability of time. In those to influence compliance with differentiating safety sound practice, a deviation instances, regulations.27 Florida the from courts have various a manufac- held that a salesperson is not in theories of the pleading requirements the or c~ turer may be chain of distribution when he or product liabil- she recitation required to is a mere conduit of information. ity and of insufficient facts should 28 de- warn con- While case law provides no bright scribing the be met with a motion to dismiss. sumers of line rule, it seems clear that necessary whether the newly a salesperson is considered elements part of discovered the chain of distribution is determined and proper problem.34 on case-by-case basis. Unfortunate- pleadings is well-developed and In another case currently pend- ly, thisdetermination is often abundant. ripe for 31 However, as a practice ing, the plaintiff sued the manufac- motion practice only after pointer, significant one can hardly say too often turer of a piece of metal equipment discovery has occurred. that a deviation from the pleading under theories of strict products In one such recent case, requirements which or a recitation of insuf- liability and negligent post-sale is still pending, the plaintiff claimed ficientfacts should also be met with a failure to warn. The product at issue the medical device implanted into motion to dismiss.32 was several years old. In fact, it had her was defective. She did not With regard sue to a medical device been discarded, thrown into a junk the manufacturer, the hospital or or pharmaceutical product liability pile and used by students at a voca- her doctor. Instead, she brought case, suit there are a number of federal tional community school to practice solely against the in-state indepen- and state courts which have con- their welding techniques. Two of dent sales representative for sidered the the manufacturer's duty to the products were welded together product, alleging causes of action warn, including the application of and, when the practice session was for failure to warn under negligence the learned-intermediary doctrine, over, thrown back into the junk pile and strict product liability.29 In which sum, holds that a drug manufacturer behind the welding shop. A teacher the plaintiff alleged the salesperson meets its duty warn to of potentially at another vocational school was told failed to adequately warn the doctor harmful effects by informing the that the product was available for use who implanted the medical product. prescribing doctor of those effects, in a new round of classes. The new The salesperson's connections rather than to the the end-user.33 While teacher assumed that the welding product and to the consumer were federal courts have found pleadings had been approved and the now- both remote. He was simply covering insufficient under their more liberal joined devices had been used in the for another salesman by delivering standard, applying Florida's ultimate same manner to which he intended the device to the operating fact pleading room, rule offers a defendant to put them. He didn't know that where he stood outside the "sterile in state court incentive to insist upon the joined devices were the result zone" and handed the device clear over and specific pleadings. That of a welding exercise. The welding to the hospital's employee, who tactic eventually then reveals the flaws in instructor who oversaw the welding handed it to the surgeon. The plaintiff plaintiffs' attempts to use salesper- and then discarded the devices did was under anesthesia at that time. sons as strawmen. not know they would ever be shipped Like prescription medicines, to another campus or put back into medical products that are prescribed service for their original purpose. To and implanted by a doctor are him, they were junk. subject to the learned-intermediary

TRIAL ADVOCATE QUARTERLY -WINTER 2014 -31- While on campus to display new A Manufacturer's Duty to Warn products, a sales representative from of Hazards in Products It Did iVot the products manufacturer observed Manufacture (a) the seller is engaged in the modified item and brought it to the business of selling such the teacher's attention, noting that Yes, you read the heading cor- a product...43 the manufacturer would not approve rectly. Dozens of appellate decisions of the modification since the products are currently pending nationwide The Comments to section 402A con- as sold were the product of exten- addressing this potential expansion firm this rule is applicable to sellers sive design analysis and testing. of the duty to warn in product liability of defective products.44 The Com- He was assured by the new teacher cases sounding in both negligence ments further provide the reasoning that the welded/modified device and strict liability. behind imposing strict liability on the had been used by many students. One common example of this sellers of products: Shortly thereafter, the plaintiff's son attempted expansion is the situation was killed while using the modified where a defendant manufacturer is [T]he justification for the strict device. The plaintiff alleged that the sued for failing to warn of potential liability has been said to be observation of the reconfigured prod- dangers associated with products that the seller, by market- uct by the manufacturer's sales rep- intended to be used with that defen- ing his product for use and resentative created apost-sale duty danYs product, even if the defendant consumption, has under- to warn on the part of the manufac- did not manufacture or sell it. In such taken and assumed a special turer. Further, the plaintiff claimed the situations, a court may look at the responsibility toward any court did not even need to consider relationship between the two prod- member of the consuming whether the alteration was foresee- ucts to determine how foreseeable public who may be injured able because the visiting salesman it is for them to be used together.ao by it; that the public has the —and therefore the manufacturer — Fortunately, the current trend among right to and does expect, in had actual knowledge of the change. jurisdictions that have considered the case of products which In effect, the plaintiff sought to make this issue is to hold that a party that it needs and for which it is a seemingly open-and-shut case of did not manufacture or sell a product forced to rely upon the seller, alteration into a failure to warn case. has no duty to warn of its dangers. that reputable sellers will Under Florida law, stretch- This is not the only set of facts stand behind their goods; ing amanufacturer's duty to warn where non-manufacturer liability is that public policy demands to include a duty to advise a user asserted, however. For example, that the burden of accidental not to alter or modify the product in Sharpe v. Leichus,41 a consumer injuries caused byproducts or that such misuse might render sued the manufacturer of a name intended for consumption be the product unsafe is untenable. A brand prescription drug alleging placed upon those who mar- manufacturer cannot warn about injuries resulting from her inges- ket them, and be treated as everything. Florida law holds that "a tion of a generic version of the drug a cost of production against manufacturer is liable only when the manufactured by another entity. The which liability insurance can product is used as intended."35 While plaintiff contended she could sue the be obtained; and that the Florida courts recognize apost-sale manufacturer of the name brand drug consumer of such products duty to warn, there are limits to the because it misrepresented the true is entitled to the maximum extent and duration of that duty.36 For risks of its drug, although admittedly of protection at the hands example, as in the case at described not the generic version she ingested. of someone, and the proper above, alteration of a product further The trial court found this argument persons to afford it are those limits applicable duties of warning.37 unpersuasive and granted summary who market the products.45 A manufacturer generally has no duty judgment for the defendant, noting: to warn of unforeseeable, unintended "It is well-settled under Florida law More recently, a Florida federal uses of its product —especially a that a plaintiff may only recover from district court followed this reason- Pumps,as modification by a third party.38 As the defendant who manufactured ing in Faddish v. Buffalo stated in the Restatement (Third) or sold the product that caused the essentially adopting what had been of , "the burden of constantly injuries in question."42 referred to in other jurisdictions as monitoring product performance in This holding is further supported the "bare metal defense." the field is usually too burdensome to by the Restatement (Second) of In Faddish, the defendants sold support apost-sale duty to warn."39 Torts, which governs claims for strict their respective "bare metal" prod- Taken to its logical conclusion, the liability in tort. Section 402A states: ucts (pumps, valves and boilers) to plaintiff's position would require man- the United States Navy. The Navy ufacturers to have an ongoing duty (1) One who sells any product subsequently covered those products to monitor and evaluate unforeseen in a defective condition with thermal, asbestos-containing misuse of its products downstream. unreasonably dangerous to insulation manufactured and de- the user...is subject to signed by third parties.47 There was liability for physical harm no evidence that any asbestos dust thereby caused to the to which the plaintiff was exposed ultimate user or consumer originated from the defendants'

TRIAL ADVOCATE QUARTERLY -WINTER 2014 -32- products. Regardless, the plaintiff ground that, as a matter of law, they Manufacturers are in the argued that it was foreseeable, if not could not be held liable for injuries best position to know of common knowledge, that asbestos caused by asbestos components that the dangerous aspects of insulation was used in conjunction were incorporated into their products the product and to trans- with the defendants' products, thus and used as replacement parts, but late that knowledge into a requiring them to warn users of the which they did not manufacture or cost of production against potential harm. distribute. which liability insurance In declining to expand Florida The Conner court confirmed can be obtained. warning law on these facts, the court that whether under strict liability or noted several factors: 1) the source negligence, a plaintiff must establish Florida law does not require of the specifications originated with causation with respect to each defen- a manufacturer to study and ana- the Navy, 2) the defendants' own dant manufacturer. After conducting lyze the products of others and to products were not inherently dan- an in-depth analysis of multiple state warn users of risks associated with gerous and did not contribute sub- and federal court decisions, the court those products unless it is in the stantially to causing the harm, and held that "a manufacturer is not liable commercial chain of distribution of 3)the defendants did not participate for harm caused by, and owes no the defective product. It would be substantially in the integration of their duty to warn of the hazards inher- manifestly unfair to hold a defendant "bare metal" products into the end ent in, asbestos products that the manufacturer responsible for injuries design of systems aboard the subject manufacturer did not manufacture or caused by products which it did not Navy vessel. The Faddish court distribute.'~0 Further, the court noted design, manufacture or distribute and further noted the defendants had its decision was "consistent with the which were beyond its control. To no control over the type of insula- development of products-liability law hold otherwise would unduly burden tion the Navy chose and received no based on strict liability and negli- manufacturers with knowing all the revenue or proceeds from the sale of gence, relevant state case law, the dangerous aspects of products they asbestos-containing products used leading federal decisions, and impor- do not manufacture that possibly aboard the ship. Therefore, because tant policy considerations regarding could be used in conjunction with the defendants were not in the chain the issue."51 a product for which they are actu- of distribution of the dangerous These sound decisions are sup- ally responsible. Liability seemingly asbestos -containing products that ported by important and far reaching would be endless. A contrary finding caused injury to the plaintiff, they public policy consideration as well. by the Florida courts would have a could not be charged with a duty to Among the reasons various courts significant and extraordinary impact warn under either negligence or strict have cited in declining to expand on product liability law in Florida. liability theories.48 warning liability: Otherjurisdictions have applied Conclusion this reasoning to toxic tort-related Foreseeability alone is claims as well. In Conner v. Alfa not a sufficient basis to While many failure to warn Laval, Inc.,49 the plaintiffs alleged that justify a wholesale expan- claims are fairly straightforward, each the decedents developed meso- sion of the basic tenants one needs to be analyzed for unique thelioma as a result of exposure to of a manufacturer's duty characteristics. Whether it is a claim asbestos -containing products while to warn. If foreseeability that the warning should have been working on vessels operated by the alone set that benchmark, in another language or it targets a U.S. Navy. The defendants manufac- manufacturers of lighters defendant who seemingly has no tured turbines, pumps, boilers, con- could be liable for harm liability for the warnings at issue, densers, steam traps and valves that caused by cigarettes and plaintiffs will continue to make new were incorporated into the vessels. bullet manufacturers for arguments and take new positions in These products used and in some injuries caused by an ac- order to maximize their chances of cases were originally distributed cidental gun discharge. recovery. By being aware of the nu- with asbestos -containing insulation, ances in the jurisprudence of failure packing, gaskets and other products. A company owes a duty to warn liability, defense attorneys Although the plaintiffs were unable only with respect to prod- can be better prepared to tackle each to proffer evidence that the defen- ucts they in fact manu- individualized claim that arises. dants manufactured or distributed the facture, design, sell or particular asbestos components to distribute, and cannot be which the decedents were exposed expected to determine the Restatement (Second) of Torts § 388 (because of overhauls and the re- relative dangers of prod- (1965). placement of asbestos 2 David G. Owen, Products Liability Law, § -containing in- ucts they neither produce 9.2 (2005). sulation, packing, gaskets, etc.), they or sell. 3 Stanley Industries, Inc. v. W.M. Barr & Co., argued the defendants were liable for Inc., 784 F. Supp. 1570, 1575 (S.D. Fla. the intended and foreseeable use of • The manufacturer's 1992)(citing Madden, The Duty to Warn in Products asbestos replacement parts in their Liability: Contours and Criti- product neither caused nor cism, 89 W. Va. L. Rev. 221, 234 (1987)) original products. The defendants created the requisite risk (emphasis in original). moved for summary judgment on the of harm. ^ Pavlides v. Galveston Yacht Basin, lnc.,

TRIAL ADVOCATE QUARTERLY -WINTER 2014 -33- 727 F.2d 330, 338 (5th Cir. 1984)(citing So. 2d 502 (Fla. 2002); Brown v. Glad and as Faddis v. Buffalo Pumps, 881 F. Supp. 2d Bituminous Cas. Corp. v. Black &Decker Grove Supply, Inc., 647 So. 2d 1033 (Fla. 1361 (S.D. FIa. 2012). Mfg. Co., 518 S.W.2d 868, 872-73 (Tex. 4th DCA 1994). "' Navy specifications call for the use of Civ. App. Dallas, 1974)). 3z Cunningham v. Gen. Motors Corp., 561 So. thermal insulation in conjunction with these 5 340 F.2d 402 (1st. Cir. 1965). 2d 656 (Fla. 1st DCA 1990). products. 6 Id. at 405, 33 See Felix, 540 So. 2d at 104; Buckner, 400 48 Id. at 1377. 485 A.2d 305 (N.J. 1984). So. 2d at 820; Union Carbide Corp. v. Au- 49 Conner vAlfa Laval, Inc., 842 F. Supp. 2d 8 Id. at 310. bin, 97 So. 3d 886, 898-901 (Fla. 3d DCA 791 (E.D. Pa. 2012). 9 784 F. Supp. 1570 (S.D. Fla. 1992) 2012); Rounds v. Genzyme Corp., 440 F. 50 Id. at 801. 10 Id. at 1576. App'x 753 (11th Cir. 2011), cent. denied, 51 Id.; see also Lindstrom v. A-C Product Li- 496 F. Supp. 2d 1324 (M.D. Fla. 2007). 132 S. Ct. 1913, 182 L. Ed. 2d 772 (U.S. ability Trust, 424 F. 3d 488 (6th Cir. 2005), 12 Id. at 1329. 2012); Colville v. Pharmacia &Upjohn Co. (holding manufacturer of feed pumps could 13 757 F. Supp. 2d 1284 (S.D. Fla. 2010). LLC, 565 F.Supp. 2d 1314, 1322 (N.D. Fla. not be held liable for asbestos-containing 14 Id, at 1292 (quoting Felix v. Hoffmann- 2008); Beale v. Biomet, Inc., 492 F. Supp. products attached to its product after LaRoche, Inc., 540 So. 2d 102 (Fla. 1989); 2d 1360, 1365 (S.D. Fla. 2007). production); Surre v. Foster Wheeler LLC, Adams v. G.D. Searle & Co., 576 So. 2d 3a Restatement (Third) of Torts: Products 831 F. Supp. 2d 797, 801 (S.D. N.Y. 2011) 728 (Fla. 2d DCA 1991); Scheman—Gon- Liability § 10 (1998); Sta-Rite Indus., Inc. (noting a manufacturer generally has no zalez v. Saber Mfg. Co., 816 So. 2d 1133 v. Levey, 909 So. 20 901, 905-06 (Fla. 3d duty to warn against defects in products (Fla. 4th DCA 2002)). DCA 2004). manufactured by others so long as it had 15 757 F.Supp. 2d at 1290. 35 Jennings v. BIC Corp., 181 F.3d 1250, no control over the production of the defec- is Id. 1256 (11th Cir. 1999). tive product and did not place it into the 60 F.3d 1545 (11th Cir. 1995)(applying 36 See, e.g., Florio v. Manitex Skycrane, LLC, stream of commerce). Georgia law). 6:07-CV-1700-ORL-28, 2010 WL 5137626 1e Id. at 1548 (internal quotations omitted). (M.D. Fla. Dec. 10, 2010)(finding no duty ~s Id. in Florida for successor corporations to 20 863 P.2d 167 (Cal. 1993). warn of defective products designed, 21 Id, at 168. manufactured, and sold by the predeces- 2z Id.; see also 21 C.F.R. §201.15(c)(1). sor); Siemens Energy &Automation, Inc. z3 Id. at 175 (internal quotations omitted). v. Medina, 719 So. 2d 312 (Fla. 3d DCA 24 No. H023840, 2003 WL 22205665 (Cal. Ct. 1998)(holding that where product broker App. Sept. 23, 2003). acts as neither a distributor or retailer, and z5 The two scenarios described by the author is at most a conduit of information, he is are based on actual lawsuits in which not a member of the distributive chain for the author represents a defendant. For purposes of strict liability). confidentiality reasons, the case names 37 High v. Westinghouse Elec. Corp., 610 So. and other identifying information are not 2d 1259, 1262 (Fla. 1992)(finding no duty provided. to warn of potential danger of dismantling 26 See, e.g., Riegel v. Medtronic, Inc., 552 a product); Rodriguez v. NaYI Detroit, Inc., U.S. 312, 321-23 (2008); Medtronic, Inc. 857 So. 2d 199, 201 (Fla. 3d DCA 2003). v. Lohr, 518 U.S. 470 (1996); McClelland But see Martinez v. Clark Equip. Co., v. Medtronic, Inc., No. 6:11-CV-1444-Or1- 382 So. 2d 878, 881 (Fla. 3d DCA 1980) 36KRS, 2012 WL 5077401 (M.D. Fla. (holding that product alteration must be Sept. 27, 2012); Wolicki-Gables v. Arrow substantial and must affect the claimed InYI, Inc., 641 F.Supp. 2d 1270, 1276, defective condition to negate manufacturer 1282-1288, and 1291 (M.D. Fla. 2009), liability). aff'd, 634 F.3d 1296 (11th Cir. 2011)(af- 3e High, 610 So. 2d at 1262; Jennings, 181 firming broad application); see also 21 F.3d at 1255; Veliz v. Rental Serv. Corp. U.S.C. § 360k(a)(2006). USA, Inc., 313 F.Supp. 2d 1317, 1326 27 Rivera v. Baby Trend, Inc., 914 So. 2d (M.D. Fla. 2003)(granting summaryjudg- 1102, 1104 (Fla. 4th DCA 2005). ment where warnings affixed to a product 2B Siemens Energy &Automation, Inc. v. specifically stated it is not intended for a Medina, 719 So. 2d 312, 315 (Fla. 3d DCA specified use). 1998). 39 Restatement (Third) of Torts: Products Li- z9 The plaintiff's reason for suing the local ability § 10 cmt. c (1998). salesperson rather than the manufacturer "o Sawyer v. A.C. & S., Inc., 32 Misc. 3d is a topic of speculation. However, avoid- 1237(A), 938 N.Y.S.2d 230 (Sup. Ct. 2011) ing apreemption defense or removal to ("The Court thus finds that a manufac- federal court seem the likely reasons. turer's liability for third-party component 3o See, e.g., Felix v. Hoffman-LaRoche, Inc., parts must be determined by the degree 540 So. 2d 102, 104 (Fla. 1989); see also to which injury from the component is Buckner v. Allergan Pharm., Inc., 400 So. foreseeable to the manufacturer."). 2d 820, 822 (Fla. 5th DCA 1981). "' No. 2004-CA-0643, 2006 WL 515532 (Fla. 31 See, e.g., Cassisi v. Maytag Co., 396 So. 2d Cir. Ct. 2006). 2d 1140, 1145 (Fla. 1st DCA 1981); Feray- 4z Id. at 2. orni v. Hyundai Motor Co., 711 So. 2d 1167 as Restatement(Second) of Torts § 402A (Fla. 4th DCA 1998), rev'd and remanded, (1965)(emphasis added). 795 So. 2d 126 (Fla. 4th DCA 2001), ^^ Id. §402A cmt. a. decision quashed, cause remanded, 822 a5 Id. §402A cmt. c (emphasis added).

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