Manufacturers Beware: Liability When Warning Labels Are Ignored or Disobeyed

Historically, manufacturers have been entitled to a presumption that their warning labels will be read and heeded. This so-called 'heeding' presumption is found in Restatement (Second) of Torts, 402A, comment j, which states: 'Where a warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.'

Simply put, under comment j, a product is deemed safe if it is used in accordance with the manufacturers' recommendations and warnings. A plaintiff's failure to 'read and heed' the warnings bars recovery. The presumption has barred plaintiffs from recovering damages in countless cases. See, e.g., Hickman v. Thomas C. Thompson Co., 644 F. Supp. 1531 (D. Colo. 1986); Plummer v. Lederle Laboratories, 819 F.2d 349 (2nd Cir. 1987); Gauthier v. AMF, Inc, 788 F.2d 634 (9th Cir. 1986); E.R. Squibb & Sons, Inc. v. Cox, 477 So.2d 963 (Ala. 1985). In these cases, the burden was on the plaintiff to read the label. As succinctly stated by the court in Squibb, 'Here, nothing in the nature of Squibb's inadequate warning prevented plaintiff from reading it. Plaintiff could have read this allegedly inadequate, unspecific warning as easily as he could have read an adequate, specific warning. And, no amount of specificity would have protected this plaintiff, because he would not have read a warning. Thus, the presumed inadequacy of Squibb's warning did not proximately cause plaintiff's injury.' Squibb, 477 So.2d at 971.

Courts often have applied the comment j presumption with little or no analysis of the adequacy of the warning. See, e.g., Hiner v. Bridgestone/ Firestone, Inc., 978 P.2d 505 (Wash. 1999). In such cases, plaintiff's failure to read and heed the warning precludes the plaintiff from arguing that the warning was inadequate and caused the alleged injuries. In order to win, manufacturers need only prove that the warning was provided and the plaintiff failed to read or heed it.

Increasingly, however, courts are scrutinizing the adequacy of a label before determining whether to apply the 'read and heed' presumption. A wide array of evidence on the adequacy of labels is being considered. Manufacturers are being expected to provide ever greater detail in their warnings about the potential harm of a product, not merely the 'dos and don'ts' of its usage. If a warning is found to be inadequate, the 'read and heed' presumption does not apply. Under these circumstances, whether a plaintiff has actually read or followed warnings and instructions is irrelevant. In sum, where courts once placed on consumers a measurable burden to protect themselves, the current trend seems to be to place a heavier burden on the manufacturer to develop better warnings.

By no means is the comment j presumption out of use. On the contrary, the defense is alive and well in a number of jurisdictions. See, e.g., Curcio v. Caterpillar, Inc., 543 S.E.2d 264 (S.C. Ct. App. 2001); Hood v. Ryobi America Corp., 181 F.3d 608 (4th Cir. 1999). However, in recent years, it appears that courts have not applied comment j with as much force or regularity ' even in states that have adopted it statutorily.

Most likely, this trend has been inspired by the Restatement (Third) of Torts, which sharply criticized and then abolished the 'read and heed' presumption in comment j of the Second Restatement. Though Restatement Third has not been widely adopted since its publication in 1998, it does appear to have influenced the approach some courts have taken when applying the heeding presumption.

The drafters of Restatement Third feared that manufacturers were using warnings as a substitute for designing safer products, and thus stripped manufacturers of the presumption that their warnings would be read and heeded, without regard to their quality or the quality of the product design. Restatement (Third) of Torts ' 2 cmt. L (1998). In place of the 'read and heed' presumption, Restatement Third focuses first on whether the 'foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design,' and second, on whether the level of detail of the warning was adequate. (While it is beyond the scope of this article to discuss the full effect of the requirement that manufacturers develop reasonable, alternative safer designs for products, this issue goes hand in hand with any risk analysis of a product's warning label. See, e.g., Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex. 1998) (when an alternative design to avoid risks cannot be implemented, adequate instructions and warnings will normally be sufficient to render the product safe.) Under Restatement Third's approach, an adequate warning cannot substitute for a safer product design.) Restatement Third explicitly deems a product 'defective' because of: [i]nadequate instructions or warnings 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 or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. Restatement (Third) of Torts, ' 2(c) (1998).'

Under this standard, manufacturers carry a heavier burden to develop more comprehensive and explicit warnings covering all of a product's potential harms and to make these warnings noticeable and distinct. This change appears to have been driven by the view that consumers 'may be likely to be inattentive, or may be insufficiently motivated to follow the instructions or heed the warnings.' Restatement (Third) of Torts ' 2 cmt. l (1998).

Consistent with this approach, courts appear to be more rigorously analyzing the adequacy of warnings than in years past and may be less inclined to apply the comment j heeding presumption. A case in point is a recent Oregon state court decision awarding damages against a manufacturer of propane heaters even where it was clear that the warning label had not been read or obeyed. Benjamin v. Wal-Mart Stores, Inc., 61 P.3d 257 (Or. Ct. App. 2002). Oregon has adopted comment j statutorily. See Or. Rev. Stat. ' 30.920. In Benjamin, the label at issue was on a propane heater and stated in bold type: 'WARNING: FOR OUTDOOR USE ONLY. Never use inside house, camper, tent, vehicle or other unventilated or enclosed areas.'

The warning was affixed prominently to the heater's upper portion for easy reading and was approximately two and one-fourth inches wide and three inches high. In spite of this explicit warning, the plaintiff used the heater in a tent and died of carbon monoxide poisoning. The court held that the 'read and heed' defense did not apply because evidence in the record established that the label itself was not large enough and not of a sufficient color to attract the attention of the user. In essence, the court absolved the plaintiff of any responsibility for using the product in accordance with the manufacturer's clear instructions. Such an approach significantly weakens the comment j 'read and heed' presumption.

Presumption that Plaintiff Would Have Read and Heeded an Adequate Warning

Over time, the comment j 'read and heed' presumption has been further weakened by the use of a counter presumption favoring plaintiffs, namely, the presumption that had an adequate warning been provided, plaintiff would have read and heeded it. See, e.g., Black v. M&W Gear Co., 269 F.3d 1220 (10th Cir. 2001); Tanner v. Shoupe, 596 N.W.2d 805 (Wis. Ct. App. 1999); Coward v. Owens-Corning Fiberglass Corp., 729 A.2d 614 (Pa. Super. Ct. 1999). Often called the 'rebuttable presumption,' it arises when plaintiff proves that a label is inadequate. Defendant then must rebut this presumption by proving that plaintiff would have failed to heed even an adequate warning. If defendant fails to meet this burden, plaintiff wins. If defendant proves that even an adequate warning would have been ignored, the presumption that plaintiff would have read and heeded the warning disappears. See, e.g., Boerner v. Brown and Williamson Tobacco Corp., 260 F.3d 837 (8th Cir. 2001). In the past several years, courts in 21 states have analyzed the rebuttable presumption. Eleven states have adopted the rebuttable presumption: Ohio, Texas, Wisconsin, Pennsylvania, Oregon, New York, Arkansas, Louisiana, Oklahoma, Vermont and New Jersey. Four have rejected the rebuttable presumption: California, South Carolina, Maryland and Colorado. Three, Connecticut, Iowa, and Massachusetts, did not decide whether it applies. Two, Georgia and Alaska, did not decide, but stated strong preference for the rebuttable presumption. One state, New Hampshire, has never adopted comment j of Restatement Second.

A good example of how the presumption favoring plaintiffs works is found in a recent summary judgment decision from an Ohio state court, McConnell v. Cosco, Inc., 238 F. Supp.2d 970 (S.D. Ohio 2003). In McConnell, a highchair manufacturer placed a warning on the chair in two places which read as follows: 'WARNING: Secure child in restraint. Never leave child unattended. Keep child in view while in high chair. This tray is not designed to hold the child in the chair.' It further stated in uppercase letters: 'NEVER LEAVE BABY UNATTENDED. ALWAYS SECURE BABY WITH SAFETY STRAPS.' A caregiver read these warnings, but failed to strap the child in the chair and then left the child unattended while she went upstairs. As result, the child slipped and strangled on the chair's tray.

Notably, the caregiver pleaded guilty to criminal charges of child endangering. Under Ohio law, the plaintiff must establish that the manufacturer's product was defective due to an inadequate warning or instruction, and that this defect caused the injury. The highchair manufacturer, Cosco, relied on the comment j 'read and heed' presumption of Restatement Second to argue that it was not liable since it was undisputed that the caregiver failed to heed the warnings and instructions about strapping the child in the seat and never leaving the child unattended. Had its instructions been followed, argued Cosco, the child would not have been injured.

The court disagreed, stating that in spite of the caregiver's utter failure to abide by the warnings, there was evidence the instructions and warnings were inadequate, and that plaintiff was therefore entitled to a rebuttable presumption that had an adequate warning been given, the caregiver would have heeded it. Cosco failed to rebut this presumption in favor of plaintiffs and summary judgment was denied.

In essence, courts applying the presumption favoring plaintiff take the approach that whether a consumer actually reads and follows instructions and warnings is of no moment; the focus of the inquiry should be on whether the warning is adequate. This is essentially the approach of the Restatement Third, though interestingly Restatement Third rejected using presumptions favoring any party, plaintiff or defendant.

Preparing Warning Labels to Protect Your Company from Liability

Given the recent trend of allowing claims against manufacturers even when it is undisputed that warning labels and instructions were ignored, how can a manufacturer or distributor of products protect itself? Again, the principal way is to recognize that courts continually emphasize the need for warnings to detail the consequences of failing to follow warnings and instructions, and not merely stating the dos and don'ts of a product's use. For instance, in Benjamin v. Wal-Mart Stores, Inc., 61 P.3d 257 (Or. Ct. App. 2002), discussed above, a gas heater carrying the explicit 'NEVER USE IN A TENT' warning would probably have been deemed adequate had it further stated that failure to follow this admonition could cause fatal carbon monoxide poisoning. Indeed, had the warning contained the words 'serious injury' or 'death,' it would have been much more difficult for the court to find evidence that the label was inadequate.

Modeling warnings on respected trade associations and industry groups is also advisable to protect your company against 'failure to warn' suits. Not surprisingly, courts have widely relied on expert testimony based on the American National Standards Institute (ANSI) standards to analyze the adequacy of warnings in terms of the color, size, placement, content and other aspects. Under these standards, warnings are measured on their ability to identify the hazard, the hazard's seriousness and why it is important to heed the warning. Again, in Benjamin, the court relied extensively on the opinion of an expert witness who was a professor of mechanical engineering with a specialty in human factors engineering, to affirm the jury verdict. This expert based his testimony almost exclusively on the ANSI standards in reaching his conclusion that Coleman's propane heater warnings were inadequate.

Similarly, in a New York case, the court used the ANSI standards as a yardstick in a products liability case involving trampolines. See Anderson v. Hedstrom Corp., 76 F. Supp.2d 422 (S.D.N.Y. 1999). In Anderson, the consumer sued the manufacturer and the retail store for injuries he suffered when he fell from a trampoline. In measuring the label's adequacy, the district court deemed critical the testimony about the location and conspicuousness of the warnings.

Of course, some reasonable balance must be struck when determining how much detail to include in a warning. Courts generally are not requiring encyclopedic warnings. As one court has stated, 'the manufacturer need not warn of every mishap or source of injury that the mind can imagine flowing from the product.' Liesener v. Weslo, Inc., 775 F. Supp. 857, 861 (D. Md. 1991).

The bottom line is that manufacturers and distributors of products must realize that the safe harbor of the 'read and heed' defense has been eroded over time. Plaintiffs are winning suits in which there is undisputed evidence that the product label was completely ignored. Going forward, in an effort to protect itself, a manufacturer should not automatically expect that its warnings will be read and followed and should instead develop labels that more thoroughly describe the consequences of failing to follow warnings and instructions. It is important for manufacturers to seek advice from product liability counsel on how to prepare adequate warnings.

Ray M. Aragon is a partner, and William T. O'Brien and Tonya Johnson are associates in McKenna Long & Aldridge LLP's tort defense practice in Washington D.C. They specialize in the defense of product liability claims. Telephone: (202) 496-7500.

Manufacturers may be surprised to learn that a growing number of courts are awarding damages to plaintiffs who have ignored or failed to follow product warning labels and instructions. Courts have often barred plaintiffs from recovering in such cases by applying a presumption that product warnings will be read and heeded. This has provided a safe harbor from liability for manufacturers and sellers.

Now it appears courts are less concerned about whether a label has actually been read and followed and are focusing more on the adequacy of the label. Some courts are also applying a counter presumption that an 'adequate' warning would have been read and heeded. Given this increased scrutiny of labels, it is more important than ever that manufacturers prepare appropriate warnings to protect against liability.

The Heeding Presumption

Historically, manufacturers have been entitled to a presumption that their warning labels will be read and heeded. This so-called 'heeding' presumption is found in Restatement (Second) of Torts, 402A, comment j, which states: 'Where a warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.'

Simply put, under comment j, a product is deemed safe if it is used in accordance with the manufacturers' recommendations and warnings. A plaintiff's failure to 'read and heed' the warnings bars recovery. The presumption has barred plaintiffs from recovering damages in countless cases. See, e.g., Hickman v. Thomas C. Thompson Co. , 644 F. Supp. 1531 (D. Colo. 1986); Plummer v. Lederle Laboratories , 819 F.2d 349 (2nd Cir. 1987); Gauthier v. AMF, Inc , 788 F.2d 634 (9th Cir. 1986); E.R. Squibb & Sons, Inc. v. Cox , 477 So.2d 963 (Ala. 1985). In these cases, the burden was on the plaintiff to read the label. As succinctly stated by the court in Squibb, 'Here, nothing in the nature of Squibb's inadequate warning prevented plaintiff from reading it. Plaintiff could have read this allegedly inadequate, unspecific warning as easily as he could have read an adequate, specific warning. And, no amount of specificity would have protected this plaintiff, because he would not have read a warning. Thus, the presumed inadequacy of Squibb's warning did not proximately cause plaintiff's injury.' Squibb, 477 So.2d at 971.

Courts often have applied the comment j presumption with little or no analysis of the adequacy of the warning. See, e.g., Hiner v. Bridgestone/ Firestone, Inc., 978 P.2d 505 (Wash. 1999). In such cases, plaintiff's failure to read and heed the warning precludes the plaintiff from arguing that the warning was inadequate and caused the alleged injuries. In order to win, manufacturers need only prove that the warning was provided and the plaintiff failed to read or heed it.

Increasingly, however, courts are scrutinizing the adequacy of a label before determining whether to apply the 'read and heed' presumption. A wide array of evidence on the adequacy of labels is being considered. Manufacturers are being expected to provide ever greater detail in their warnings about the potential harm of a product, not merely the 'dos and don'ts' of its usage. If a warning is found to be inadequate, the 'read and heed' presumption does not apply. Under these circumstances, whether a plaintiff has actually read or followed warnings and instructions is irrelevant. In sum, where courts once placed on consumers a measurable burden to protect themselves, the current trend seems to be to place a heavier burden on the manufacturer to develop better warnings.

By no means is the comment j presumption out of use. On the contrary, the defense is alive and well in a number of jurisdictions. See, e.g., Curcio v. Caterpillar, Inc. , 543 S.E.2d 264 (S.C. Ct. App. 2001); Hood v. Ryobi America Corp. , 181 F.3d 608 (4th Cir. 1999). However, in recent years, it appears that courts have not applied comment j with as much force or regularity ' even in states that have adopted it statutorily.

Most likely, this trend has been inspired by the Restatement (Third) of Torts, which sharply criticized and then abolished the 'read and heed' presumption in comment j of the Second Restatement. Though Restatement Third has not been widely adopted since its publication in 1998, it does appear to have influenced the approach some courts have taken when applying the heeding presumption.

The drafters of Restatement Third feared that manufacturers were using warnings as a substitute for designing safer products, and thus stripped manufacturers of the presumption that their warnings would be read and heeded, without regard to their quality or the quality of the product design. Restatement (Third) of Torts ' 2 cmt. L (1998). In place of the 'read and heed' presumption, Restatement Third focuses first on whether the 'foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design,' and second, on whether the level of detail of the warning was adequate. (While it is beyond the scope of this article to discuss the full effect of the requirement that manufacturers develop reasonable, alternative safer designs for products, this issue goes hand in hand with any risk analysis of a product's warning label. See, e.g., Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W.2d 328 (Tex. 1998) (when an alternative design to avoid risks cannot be implemented, adequate instructions and warnings will normally be sufficient to render the product safe.) Under Restatement Third's approach, an adequate warning cannot substitute for a safer product design.) Restatement Third explicitly deems a product 'defective' because of: [i]nadequate instructions or warnings 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 or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. Restatement (Third) of Torts, ' 2(c) (1998).'

Under this standard, manufacturers carry a heavier burden to develop more comprehensive and explicit warnings covering all of a product's potential harms and to make these warnings noticeable and distinct. This change appears to have been driven by the view that consumers 'may be likely to be inattentive, or may be insufficiently motivated to follow the instructions or heed the warnings.' Restatement (Third) of Torts ' 2 cmt. l (1998).

Consistent with this approach, courts appear to be more rigorously analyzing the adequacy of warnings than in years past and may be less inclined to apply the comment j heeding presumption. A case in point is a recent Oregon state court decision awarding damages against a manufacturer of propane heaters even where it was clear that the warning label had not been read or obeyed. Benjamin v. Wal-Mart Stores, Inc. , 61 P.3d 257 (Or. Ct. App. 2002). Oregon has adopted comment j statutorily. See Or. Rev. Stat. ' 30.920. In Benjamin, the label at issue was on a propane heater and stated in bold type: 'WARNING: FOR OUTDOOR USE ONLY. Never use inside house, camper, tent, vehicle or other unventilated or enclosed areas.'

The warning was affixed prominently to the heater's upper portion for easy reading and was approximately two and one-fourth inches wide and three inches high. In spite of this explicit warning, the plaintiff used the heater in a tent and died of carbon monoxide poisoning. The court held that the 'read and heed' defense did not apply because evidence in the record established that the label itself was not large enough and not of a sufficient color to attract the attention of the user. In essence, the court absolved the plaintiff of any responsibility for using the product in accordance with the manufacturer's clear instructions. Such an approach significantly weakens the comment j 'read and heed' presumption.

Presumption that Plaintiff Would Have Read and Heeded an Adequate Warning

Over time, the comment j 'read and heed' presumption has been further weakened by the use of a counter presumption favoring plaintiffs, namely, the presumption that had an adequate warning been provided, plaintiff would have read and heeded it. See, e.g., Black v. M&W Gear Co., 269 F.3d 1220 (10th Cir. 2001); Tanner v. Shoupe , 596 N.W.2d 805 (Wis. Ct. App. 1999); Coward v. Owens-Corning Fiberglass Corp. , 729 A.2d 614 (Pa. Super. Ct. 1999). Often called the 'rebuttable presumption,' it arises when plaintiff proves that a label is inadequate. Defendant then must rebut this presumption by proving that plaintiff would have failed to heed even an adequate warning. If defendant fails to meet this burden, plaintiff wins. If defendant proves that even an adequate warning would have been ignored, the presumption that plaintiff would have read and heeded the warning disappears. See, e.g., Boerner v. Brown and Williamson Tobacco Corp. , 260 F.3d 837 (8th Cir. 2001). In the past several years, courts in 21 states have analyzed the rebuttable presumption. Eleven states have adopted the rebuttable presumption: Ohio, Texas, Wisconsin, Pennsylvania, Oregon, New York, Arkansas, Louisiana, Oklahoma, Vermont and New Jersey. Four have rejected the rebuttable presumption: California, South Carolina, Maryland and Colorado. Three, Connecticut, Iowa, and Massachusetts, did not decide whether it applies. Two, Georgia and Alaska, did not decide, but stated strong preference for the rebuttable presumption. One state, New Hampshire, has never adopted comment j of Restatement Second.

A good example of how the presumption favoring plaintiffs works is found in a recent summary judgment decision from an Ohio state court, McConnell v. Cosco, Inc. , 238 F. Supp.2d 970 (S.D. Ohio 2003). In McConnell, a highchair manufacturer placed a warning on the chair in two places which read as follows: 'WARNING: Secure child in restraint. Never leave child unattended. Keep child in view while in high chair. This tray is not designed to hold the child in the chair.' It further stated in uppercase letters: 'NEVER LEAVE BABY UNATTENDED. ALWAYS SECURE BABY WITH SAFETY STRAPS.' A caregiver read these warnings, but failed to strap the child in the chair and then left the child unattended while she went upstairs. As result, the child slipped and strangled on the chair's tray.

Notably, the caregiver pleaded guilty to criminal charges of child endangering. Under Ohio law, the plaintiff must establish that the manufacturer's product was defective due to an inadequate warning or instruction, and that this defect caused the injury. The highchair manufacturer, Cosco, relied on the comment j 'read and heed' presumption of Restatement Second to argue that it was not liable since it was undisputed that the caregiver failed to heed the warnings and instructions about strapping the child in the seat and never leaving the child unattended. Had its instructions been followed, argued Cosco, the child would not have been injured.

The court disagreed, stating that in spite of the caregiver's utter failure to abide by the warnings, there was evidence the instructions and warnings were inadequate, and that plaintiff was therefore entitled to a rebuttable presumption that had an adequate warning been given, the caregiver would have heeded it. Cosco failed to rebut this presumption in favor of plaintiffs and summary judgment was denied.

In essence, courts applying the presumption favoring plaintiff take the approach that whether a consumer actually reads and follows instructions and warnings is of no moment; the focus of the inquiry should be on whether the warning is adequate. This is essentially the approach of the Restatement Third, though interestingly Restatement Third rejected using presumptions favoring any party, plaintiff or defendant.

Preparing Warning Labels to Protect Your Company from Liability

Given the recent trend of allowing claims against manufacturers even when it is undisputed that warning labels and instructions were ignored, how can a manufacturer or distributor of products protect itself? Again, the principal way is to recognize that courts continually emphasize the need for warnings to detail the consequences of failing to follow warnings and instructions, and not merely stating the dos and don'ts of a product's use. For instance, in Benjamin v. Wal-Mart Stores, Inc. , 61 P.3d 257 (Or. Ct. App. 2002), discussed above, a gas heater carrying the explicit 'NEVER USE IN A TENT' warning would probably have been deemed adequate had it further stated that failure to follow this admonition could cause fatal carbon monoxide poisoning. Indeed, had the warning contained the words 'serious injury' or 'death,' it would have been much more difficult for the court to find evidence that the label was inadequate.

Modeling warnings on respected trade associations and industry groups is also advisable to protect your company against 'failure to warn' suits. Not surprisingly, courts have widely relied on expert testimony based on the American National Standards Institute (ANSI) standards to analyze the adequacy of warnings in terms of the color, size, placement, content and other aspects. Under these standards, warnings are measured on their ability to identify the hazard, the hazard's seriousness and why it is important to heed the warning. Again, in Benjamin, the court relied extensively on the opinion of an expert witness who was a professor of mechanical engineering with a specialty in human factors engineering, to affirm the jury verdict. This expert based his testimony almost exclusively on the ANSI standards in reaching his conclusion that Coleman's propane heater warnings were inadequate.

Similarly, in a New York case, the court used the ANSI standards as a yardstick in a products liability case involving trampolines. See Anderson v. Hedstrom Corp. , 76 F. Supp.2d 422 (S.D.N.Y. 1999). In Anderson, the consumer sued the manufacturer and the retail store for injuries he suffered when he fell from a trampoline. In measuring the label's adequacy, the district court deemed critical the testimony about the location and conspicuousness of the warnings.

Of course, some reasonable balance must be struck when determining how much detail to include in a warning. Courts generally are not requiring encyclopedic warnings. As one court has stated, 'the manufacturer need not warn of every mishap or source of injury that the mind can imagine flowing from the product.' Liesener v. Weslo, Inc. , 775 F. Supp. 857, 861 (D. Md. 1991).

The bottom line is that manufacturers and distributors of products must realize that the safe harbor of the 'read and heed' defense has been eroded over time. Plaintiffs are winning suits in which there is undisputed evidence that the product label was completely ignored. Going forward, in an effort to protect itself, a manufacturer should not automatically expect that its warnings will be read and followed and should instead develop labels that more thoroughly describe the consequences of failing to follow warnings and instructions. It is important for manufacturers to seek advice from product liability counsel on how to prepare adequate warnings.

Ray M. Aragon is a partner, and William T. O'Brien and Tonya Johnson are associates in McKenna Long & Aldridge LLP's tort defense practice in Washington D.C. They specialize in the defense of product liability claims. Telephone: (202) 496-7500.