Defending Against Post-Sale Warning Claims

An unusual twist in the typical product liability case can occur when a plaintiff asserts a post-sale warning claim. (In this article, “product” does not refer to consumer products that are subject to the jurisdiction of the U.S. Consumer Product Safety Commission.) Because a post-sale warning claim is not frequently encountered, such a claim can cause confusion, especially with respect to the relation between the post-sale warning claim and the other claims that a plaintiff is asserting.

The following hypothetical helps to highlight a few of the problems that can arise when a plaintiff asserts a post-sale warning claim. The plaintiff is injured by a product in the workplace and sues the manufacturer of the product, alleging design defect, manufacturing defect, and warning defect claims. As to the warning claims, the plaintiff asserts that the product was defective because it did not contain an adequate warning when it was initially placed into the stream of commerce, and also contends that the manufacturer is liable because it should have issued a post-sale warning. All of those claims, with the exception of the post-sale warning claim, focus on facts, and hence evidence, that transpired prior to the manufacturer's placing the product into the stream of commerce.

During the course of discovery, the plaintiff focuses primarily on the manufacturer's actions and decision-making process prior to the manufacture of the product. However, in its response to the plaintiff's discovery requests, the manufacturer provides to the plaintiff a post-sale brochure that it mailed to last known owners of the product and to its distributors. The brochure contains general safety information about the product and advises the owners about additional safety devices that can be added to the product ' devices that the manufacturer always offered as options. The plaintiff's employer does not add the additional safety devices, and it is unclear whether the employer ever received the post-sale brochure.

As discovery proceeds, the plaintiff argues that the product was defective because it should have included those additional safety devices identified in the post-sale brochure as standard equipment when the product was originally manufactured, and he produces expert testimony in support of that position. Further, the plaintiff relies on tests that the defendant performed prior to manufacturing and distributing the product, which focused on whether those devices should have been standardized. Although the defendant relies on the results of those tests in support of its decision not to include the safety devices as standard equipment, the plaintiff contends that the tests were not as conclusive as the defendant argues, and in fact demonstrated that the product was dangerous without the additional devices.

Prior to trial, the plaintiff discards his manufacturing defect claim. In an effort to emphasize the absence of the additional safety devices as the product's primary defect, the plaintiff also discards the claim that the product was defective because it did not contain an adequate warning at the time of sale. However, the plaintiff continues to prosecute his post-sale warning claim, asserting that the manufacturer's post-sale brochure is evidence that the manufacturer recognized a danger associated with the product subsequent to sale, but that the brochure was inadequate because it merely offered the additional safety devices as options and did not instruct owners to install the devices. In support of the post-sale warning claim, the plaintiff relies not only on the brochure, but also on the evidence he is using to support his design defect claim; specifically, the manufacturer's alleged knowledge that the product was dangerous without the additional safety devices as standard equipment at the time of manufacture. In effect, the plaintiff attempts to use the post-sale warning claim, and hence the post-sale brochure, to reinforce that the product was defective because the manufacturer should have recognized, prior to manufacture, that the product was dangerous without the additional devices, while simultaneously using the post-sale brochure as evidence that the manufacturer “belatedly” recognized a “new” danger associated with the product and, therefore, should have issued a post-sale warning.

The purpose of this article is to explore briefly the contours of post-sale warning law and to provide defendants with some practical tips to avoid problems that can arise when a plaintiff pursues such a claim. Generally, it is easy to distinguish between a design defect claim and a failure to warn claim. A design defect claim focuses on whether the product posed an unreasonable risk of harm when it was manufactured and distributed, whereas a warning claim focuses on whether the manufacturer failed to adequately warn the user ' at the time the manufacturer placed the product into the stream of commerce ' about a danger of the product that rendered the product unreasonably unsafe. However, the line separating the theories often becomes blurred when a plaintiff pursues a post-sale warning claim. A post-sale duty to warn claim differs from a design, warning, or manufacturing defect claim in that a manufacturer's post-sale duty does not arise until after the product has been placed into the stream of commerce. A manufacturer only has a post-sale duty to warn when the manufacturer discovers, or reasonably should discover, a new danger associated with the product following sale, and so long as it would be reasonable for the manufacturer to issue such a warning. Defendants should be wary of, and guard against, an attempt by a plaintiff to incorporate post-sale “state of the art” design improvements into a post-sale failure to warn claim because case law generally does not permit such incorporation.

In New Jersey, the limited circumstances under which a post-distribution duty to warn is imposed upon a manufacturer have been codified. The New Jersey Product Liability Act provides in pertinent part:

In any product liability action the manufacturer or seller shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer provides an adequate warning or instruction. N.J.S.A. 2A:58C-4.

The Act codified a New Jersey Supreme Court case that held that “subsequently acquired knowledge, both actual and constructive, also may obligate the manufacturer to take reasonable steps to notify purchasers and consumers of the newly-discovered danger.” Feldman v. Lederle Labs., 97 N.J. 429, 456-57 (1984). New Jersey case law has clarified that a manufacturer has a duty to provide a post-sale warning if it discovers or should have discovered a new danger following distribution and that a manufacturer may be obligated to provide a warning of a post-sale change in industry standards concerning warnings under certain circumstances. Dixon v. Jacobsen Mfg. Co., 270 N.J. Super. 569, 583 (App. Div.), cert. denied, 136 N.J. 295 (1994).

The circumstances giving rise to a post-sale duty to warn are restricted because “[t]he imposition of a duty on a manufacturer to warn of dangers after a product is manufactured and the extent of that duty, is essentially rooted in concepts of fairness.” Id. at 586. In that regard, the Restatement (Third) of Law, Torts: Products Liability, '10, which mirrors New Jersey law on this point, provides that a manufacturer can be held liable for the failure to provide a warning, following the sale of the product, if a reasonable person in the manufacturer's position would have provided such a warning. The Restatement identifies four factors that a plaintiff must establish before a court can impose a post-sale duty to warn: 1) that the manufacturer knows or should know that its product poses a substantial risk of harm; 2) that those to whom a warning could be provided can be identified and can reasonably be assumed to be unaware of the risk posed by the product; 3) that a warning can be effectively communicated to and acted upon by those that receive the warning; and 4) that the risk justifies the burden of providing a post-sale warning. By its identification of those factors, the Restatement recognized that it is far more difficult for a manufacturer to issue an effective post-sale warning than a warning that accompanies the product when it is initially sold.

That is, it would be unduly burdensome, in terms of time and money, to require a manufacturer to identify every single user of a product, possibly years after its initial sale, to whom it would have to communicate a post-sale warning. Likewise, it would be unjust to require a manufacturer to inform every single product owner or user of product design improvements that reduce or eliminate risks associated with the original design of the product. As the Commentary to the Restatement observes, “[i]f every post-sale improvement in a product design were to give rise to a duty to warn users of the risks of continuing to use the existing design, the burden on product sellers would be unacceptably great.” Moreover, imposing a limitless ' and therefore onerous ' post-sale duty on manufacturers could have an unintended effect, whereby manufacturers could be discouraged from pursuing new technology and improved designs if they knew that they would be obligated to identify all users of the originally designed product and warn them about the improvement.

Before issuing any post-sale materials regarding a product, manufacturers should consider whether such materials could expose them to liability on a post-sale warning claim. Although manufacturers typically desire to maintain contact with their customers and keep them informed about new products ' or improved products ' they must be careful in doing so and should limit the amount of information they provide so that they do not unintentionally invite post-sale warning claims. For example, a manufacturer providing safety information in a post-sale brochure should explain that it is not providing the information because it discovered a new danger associated with the product or because the product was unsafe without certain safety features at the time of sale, but rather because it simply wishes to reinforce that operators should employ proper safety practices when using the product.

While it seems simple to separate a design defect claim from a post-sale warning claim, as a court will impose a post-sale duty only when it is reasonable to do so, the hypothetical demonstrates that it is often not so easy to distinguish among those claims and the evidence needed to support them. Evidence as to when a manufacturer should have discovered a danger associated with its product could be relevant to both a design defect claim (if a plaintiff argues that the danger was reasonably foreseeable at the time the product was placed into the stream of commerce), and a post-sale claim (if the plaintiff argues that the manufacturer should have discovered the danger and should have issued a warning, subsequent to the sale). As in the hypothetical, a plaintiff could rely upon some of the same evidence concerning the manufacturer's knowledge of the dangers associated with the product in trying to prove both design defect and post-sale warning claims.

Because a court's determination about whether to impose a post-sale duty is made on a case-by-case basis, the evidence developed during discovery will be critical for plaintiffs trying to establish such a claim and defendants contesting such a claim. The evidence a plaintiff needs to establish a post-sale warning claim focuses primarily on the manufacturer's post-sale knowledge of a new danger, as well as the other factors identified by the Restatement regarding whether it would be reasonable for a manufacturer to issue a post-sale warning, ie, a manufacturer's ability to identify users. Because obtaining such evidence can be burdensome, a plaintiff who pleads a post-sale warning claim may nonetheless fail to pursue that theory during discovery. If a plaintiff fails to prepare a post-sale claim, a defendant should move to dismiss that claim as soon as possible.

Alternatively, if a plaintiff effectively prepares a post-sale warning claim by gathering the necessary evidence, the manufacturer will be placed in a more difficult position. Obviously, a defendant that discovered a new danger of its product subsequent to sale but failed to issue a warning must try to convince the court that it would have been unreasonable for it to have issued a post-sale warning because, for example, it could not effectively identify users of the product or because users knew about the new danger associated with the product. It should be noted that some courts diverge from the Restatement, and require manufacturers to provide a post-sale warning of dangers discovered by subsequent technological improvements, without engaging in the reasonableness analysis proposed by the Restatement. One such example is Straley v. U.S., 887 F. Supp. 728 (D.N.J. 1995), though it is important to note that Straley was decided prior to the Restatement Third of Torts: Products Liability.

Overall, the post-sale duty to warn is a somewhat vague concept that can cause confusion during the course of discovery and at trial. In fact, the terminology that is used by courts and commentators in discussing post-sale warning law can cause confusion. Specifically, some courts and commentators occasionally refer to a “continuing duty to warn” when describing a manufacturer's duty to warn of dangers associated with its product. However, that phrase is misleading because a manufacturer does not have an absolute duty to warn in the post-sale context; rather, the duty only arises under limited circumstances. Accordingly, by using the phrase “continuing duty,” courts and litigants can be misled into believing that a manufacturer's duty to warn at the time of manufacture and distribution simply continues thereafter and is the same as the manufacturer's duty in the post-sale context, when in fact such a belief is inaccurate.

Consequently, a manufacturer defending a post-sale warning claim should be aware of the limited circumstances under which it is obligated to issue a post-sale warning and should tailor its discovery strategy accordingly. In that regard, if a defendant provided any post-sale materials to its customers, it should carefully examine those materials for safety-related information. Before producing any such materials during discovery, a defendant should scrutinize the materials and understand the significance of the information contained therein and the potential liability issues that could arise. Further, a defendant may wish to object to certain discovery requests for post-sale materials or seek a protective order for those materials if there is a good faith basis to take such action. Of course, it is possible that a plaintiff may not plead a post-sale warning claim and may not try to assert such a claim until after discovery is complete. Consequently, defendants must constantly be aware of the possibility of a plaintiff's belated assertion of a post-sale warning claim and should utilize the governing procedural and discovery rules in an attempt to prevent the plaintiff from trying to persuade a court, because of the ambiguities and confusion surrounding post-sale warning law, to allow him or her to assert a post-sale warning claim at a late stage of the litigation.

If a plaintiff fails to develop the necessary evidence needed to support a post-sale warning claim or if a plaintiff focuses solely on the defendant's actions and decision-making process prior to the sale of the product, a defendant should move immediately to dismiss that claim. If the post-sale claim remains in the case, a defendant should consider moving in limine to exclude the introduction of any post-sale materials into evidence at trial, or alternatively move for a ruling that such evidence not be admitted in support of a plaintiff's post-sale claim. If a defendant does not do so, a savvy plaintiff may seize upon post-sale documents provided by the manufacturer, no matter how innocuous, as evidence that the manufacturer knew about new dangers of its product in support of the post-sale warning claim.

While these are obvious strategies, a court may be reluctant to dismiss a post-sale claim on the eve of trial or following the conclusion of the plaintiff's case, even if the evidence ' or lack thereof ' warrants dismissal because it either does not understand the nuances of post-sale warning law or because it is reluctant to provide the plaintiff with an appellate issue if the post-sale claim is not submitted to the jury. Defendants should therefore try to dispose of the post-sale warning claim as soon as possible because there is always the danger that the jury, after hearing the evidence and the likely tortured jury instructions, could impose liability against a manufacturer on a post-sale claim even if the plaintiff failed to present sufficient evidence to support that claim.

An unusual twist in the typical product liability case can occur when a plaintiff asserts a post-sale warning claim. (In this article, “product” does not refer to consumer products that are subject to the jurisdiction of the U.S. Consumer Product Safety Commission.) Because a post-sale warning claim is not frequently encountered, such a claim can cause confusion, especially with respect to the relation between the post-sale warning claim and the other claims that a plaintiff is asserting.

The following hypothetical helps to highlight a few of the problems that can arise when a plaintiff asserts a post-sale warning claim. The plaintiff is injured by a product in the workplace and sues the manufacturer of the product, alleging design defect, manufacturing defect, and warning defect claims. As to the warning claims, the plaintiff asserts that the product was defective because it did not contain an adequate warning when it was initially placed into the stream of commerce, and also contends that the manufacturer is liable because it should have issued a post-sale warning. All of those claims, with the exception of the post-sale warning claim, focus on facts, and hence evidence, that transpired prior to the manufacturer's placing the product into the stream of commerce.

During the course of discovery, the plaintiff focuses primarily on the manufacturer's actions and decision-making process prior to the manufacture of the product. However, in its response to the plaintiff's discovery requests, the manufacturer provides to the plaintiff a post-sale brochure that it mailed to last known owners of the product and to its distributors. The brochure contains general safety information about the product and advises the owners about additional safety devices that can be added to the product ' devices that the manufacturer always offered as options. The plaintiff's employer does not add the additional safety devices, and it is unclear whether the employer ever received the post-sale brochure.

As discovery proceeds, the plaintiff argues that the product was defective because it should have included those additional safety devices identified in the post-sale brochure as standard equipment when the product was originally manufactured, and he produces expert testimony in support of that position. Further, the plaintiff relies on tests that the defendant performed prior to manufacturing and distributing the product, which focused on whether those devices should have been standardized. Although the defendant relies on the results of those tests in support of its decision not to include the safety devices as standard equipment, the plaintiff contends that the tests were not as conclusive as the defendant argues, and in fact demonstrated that the product was dangerous without the additional devices.

Prior to trial, the plaintiff discards his manufacturing defect claim. In an effort to emphasize the absence of the additional safety devices as the product's primary defect, the plaintiff also discards the claim that the product was defective because it did not contain an adequate warning at the time of sale. However, the plaintiff continues to prosecute his post-sale warning claim, asserting that the manufacturer's post-sale brochure is evidence that the manufacturer recognized a danger associated with the product subsequent to sale, but that the brochure was inadequate because it merely offered the additional safety devices as options and did not instruct owners to install the devices. In support of the post-sale warning claim, the plaintiff relies not only on the brochure, but also on the evidence he is using to support his design defect claim; specifically, the manufacturer's alleged knowledge that the product was dangerous without the additional safety devices as standard equipment at the time of manufacture. In effect, the plaintiff attempts to use the post-sale warning claim, and hence the post-sale brochure, to reinforce that the product was defective because the manufacturer should have recognized, prior to manufacture, that the product was dangerous without the additional devices, while simultaneously using the post-sale brochure as evidence that the manufacturer “belatedly” recognized a “new” danger associated with the product and, therefore, should have issued a post-sale warning.

The purpose of this article is to explore briefly the contours of post-sale warning law and to provide defendants with some practical tips to avoid problems that can arise when a plaintiff pursues such a claim. Generally, it is easy to distinguish between a design defect claim and a failure to warn claim. A design defect claim focuses on whether the product posed an unreasonable risk of harm when it was manufactured and distributed, whereas a warning claim focuses on whether the manufacturer failed to adequately warn the user ' at the time the manufacturer placed the product into the stream of commerce ' about a danger of the product that rendered the product unreasonably unsafe. However, the line separating the theories often becomes blurred when a plaintiff pursues a post-sale warning claim. A post-sale duty to warn claim differs from a design, warning, or manufacturing defect claim in that a manufacturer's post-sale duty does not arise until after the product has been placed into the stream of commerce. A manufacturer only has a post-sale duty to warn when the manufacturer discovers, or reasonably should discover, a new danger associated with the product following sale, and so long as it would be reasonable for the manufacturer to issue such a warning. Defendants should be wary of, and guard against, an attempt by a plaintiff to incorporate post-sale “state of the art” design improvements into a post-sale failure to warn claim because case law generally does not permit such incorporation.

In New Jersey, the limited circumstances under which a post-distribution duty to warn is imposed upon a manufacturer have been codified. The New Jersey Product Liability Act provides in pertinent part:

In any product liability action the manufacturer or seller shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer provides an adequate warning or instruction. N.J.S.A. 2A:58C-4.

The Act codified a New Jersey Supreme Court case that held that “subsequently acquired knowledge, both actual and constructive, also may obligate the manufacturer to take reasonable steps to notify purchasers and consumers of the newly-discovered danger.” Feldman v. Lederle Labs., 97 N.J. 429, 456-57 (1984). New Jersey case law has clarified that a manufacturer has a duty to provide a post-sale warning if it discovers or should have discovered a new danger following distribution and that a manufacturer may be obligated to provide a warning of a post-sale change in industry standards concerning warnings under certain circumstances. Dixon v. Jacobsen Mfg. Co., 270 N.J. Super. 569, 583 (App. Div.), cert. denied, 136 N.J. 295 (1994).

The circumstances giving rise to a post-sale duty to warn are restricted because “[t]he imposition of a duty on a manufacturer to warn of dangers after a product is manufactured and the extent of that duty, is essentially rooted in concepts of fairness.” Id. at 586. In that regard, the Restatement (Third) of Law, Torts: Products Liability, '10, which mirrors New Jersey law on this point, provides that a manufacturer can be held liable for the failure to provide a warning, following the sale of the product, if a reasonable person in the manufacturer's position would have provided such a warning. The Restatement identifies four factors that a plaintiff must establish before a court can impose a post-sale duty to warn: 1) that the manufacturer knows or should know that its product poses a substantial risk of harm; 2) that those to whom a warning could be provided can be identified and can reasonably be assumed to be unaware of the risk posed by the product; 3) that a warning can be effectively communicated to and acted upon by those that receive the warning; and 4) that the risk justifies the burden of providing a post-sale warning. By its identification of those factors, the Restatement recognized that it is far more difficult for a manufacturer to issue an effective post-sale warning than a warning that accompanies the product when it is initially sold.

That is, it would be unduly burdensome, in terms of time and money, to require a manufacturer to identify every single user of a product, possibly years after its initial sale, to whom it would have to communicate a post-sale warning. Likewise, it would be unjust to require a manufacturer to inform every single product owner or user of product design improvements that reduce or eliminate risks associated with the original design of the product. As the Commentary to the Restatement observes, “[i]f every post-sale improvement in a product design were to give rise to a duty to warn users of the risks of continuing to use the existing design, the burden on product sellers would be unacceptably great.” Moreover, imposing a limitless ' and therefore onerous ' post-sale duty on manufacturers could have an unintended effect, whereby manufacturers could be discouraged from pursuing new technology and improved designs if they knew that they would be obligated to identify all users of the originally designed product and warn them about the improvement.

Before issuing any post-sale materials regarding a product, manufacturers should consider whether such materials could expose them to liability on a post-sale warning claim. Although manufacturers typically desire to maintain contact with their customers and keep them informed about new products ' or improved products ' they must be careful in doing so and should limit the amount of information they provide so that they do not unintentionally invite post-sale warning claims. For example, a manufacturer providing safety information in a post-sale brochure should explain that it is not providing the information because it discovered a new danger associated with the product or because the product was unsafe without certain safety features at the time of sale, but rather because it simply wishes to reinforce that operators should employ proper safety practices when using the product.

While it seems simple to separate a design defect claim from a post-sale warning claim, as a court will impose a post-sale duty only when it is reasonable to do so, the hypothetical demonstrates that it is often not so easy to distinguish among those claims and the evidence needed to support them. Evidence as to when a manufacturer should have discovered a danger associated with its product could be relevant to both a design defect claim (if a plaintiff argues that the danger was reasonably foreseeable at the time the product was placed into the stream of commerce), and a post-sale claim (if the plaintiff argues that the manufacturer should have discovered the danger and should have issued a warning, subsequent to the sale). As in the hypothetical, a plaintiff could rely upon some of the same evidence concerning the manufacturer's knowledge of the dangers associated with the product in trying to prove both design defect and post-sale warning claims.

Because a court's determination about whether to impose a post-sale duty is made on a case-by-case basis, the evidence developed during discovery will be critical for plaintiffs trying to establish such a claim and defendants contesting such a claim. The evidence a plaintiff needs to establish a post-sale warning claim focuses primarily on the manufacturer's post-sale knowledge of a new danger, as well as the other factors identified by the Restatement regarding whether it would be reasonable for a manufacturer to issue a post-sale warning, ie, a manufacturer's ability to identify users. Because obtaining such evidence can be burdensome, a plaintiff who pleads a post-sale warning claim may nonetheless fail to pursue that theory during discovery. If a plaintiff fails to prepare a post-sale claim, a defendant should move to dismiss that claim as soon as possible.

Alternatively, if a plaintiff effectively prepares a post-sale warning claim by gathering the necessary evidence, the manufacturer will be placed in a more difficult position. Obviously, a defendant that discovered a new danger of its product subsequent to sale but failed to issue a warning must try to convince the court that it would have been unreasonable for it to have issued a post-sale warning because, for example, it could not effectively identify users of the product or because users knew about the new danger associated with the product. It should be noted that some courts diverge from the Restatement, and require manufacturers to provide a post-sale warning of dangers discovered by subsequent technological improvements, without engaging in the reasonableness analysis proposed by the Restatement. One such example is Straley v. U.S., 887 F. Supp. 728 (D.N.J. 1995), though it is important to note that Straley was decided prior to the Restatement Third of Torts: Products Liability.

Overall, the post-sale duty to warn is a somewhat vague concept that can cause confusion during the course of discovery and at trial. In fact, the terminology that is used by courts and commentators in discussing post-sale warning law can cause confusion. Specifically, some courts and commentators occasionally refer to a “continuing duty to warn” when describing a manufacturer's duty to warn of dangers associated with its product. However, that phrase is misleading because a manufacturer does not have an absolute duty to warn in the post-sale context; rather, the duty only arises under limited circumstances. Accordingly, by using the phrase “continuing duty,” courts and litigants can be misled into believing that a manufacturer's duty to warn at the time of manufacture and distribution simply continues thereafter and is the same as the manufacturer's duty in the post-sale context, when in fact such a belief is inaccurate.

Consequently, a manufacturer defending a post-sale warning claim should be aware of the limited circumstances under which it is obligated to issue a post-sale warning and should tailor its discovery strategy accordingly. In that regard, if a defendant provided any post-sale materials to its customers, it should carefully examine those materials for safety-related information. Before producing any such materials during discovery, a defendant should scrutinize the materials and understand the significance of the information contained therein and the potential liability issues that could arise. Further, a defendant may wish to object to certain discovery requests for post-sale materials or seek a protective order for those materials if there is a good faith basis to take such action. Of course, it is possible that a plaintiff may not plead a post-sale warning claim and may not try to assert such a claim until after discovery is complete. Consequently, defendants must constantly be aware of the possibility of a plaintiff's belated assertion of a post-sale warning claim and should utilize the governing procedural and discovery rules in an attempt to prevent the plaintiff from trying to persuade a court, because of the ambiguities and confusion surrounding post-sale warning law, to allow him or her to assert a post-sale warning claim at a late stage of the litigation.

If a plaintiff fails to develop the necessary evidence needed to support a post-sale warning claim or if a plaintiff focuses solely on the defendant's actions and decision-making process prior to the sale of the product, a defendant should move immediately to dismiss that claim. If the post-sale claim remains in the case, a defendant should consider moving in limine to exclude the introduction of any post-sale materials into evidence at trial, or alternatively move for a ruling that such evidence not be admitted in support of a plaintiff's post-sale claim. If a defendant does not do so, a savvy plaintiff may seize upon post-sale documents provided by the manufacturer, no matter how innocuous, as evidence that the manufacturer knew about new dangers of its product in support of the post-sale warning claim.

While these are obvious strategies, a court may be reluctant to dismiss a post-sale claim on the eve of trial or following the conclusion of the plaintiff's case, even if the evidence ' or lack thereof ' warrants dismissal because it either does not understand the nuances of post-sale warning law or because it is reluctant to provide the plaintiff with an appellate issue if the post-sale claim is not submitted to the jury. Defendants should therefore try to dispose of the post-sale warning claim as soon as possible because there is always the danger that the jury, after hearing the evidence and the likely tortured jury instructions, could impose liability against a manufacturer on a post-sale claim even if the plaintiff failed to present sufficient evidence to support that claim.