Practice Tip: Recovering Under the Theory of Failure to Issue Post-Sale Warnings

Although a product may be reasonably safe when it is sold, a manufacturer that later learns of risks revealed by user operation may be held responsible for failure to issue post-sale warnings. The justification for a post-sale duty to warn arises from a manufacturer's unique and superior position to follow the use and adaptation of its products by consumers. The manufacturer is best placed to learn about post-sale defects or dangers discovered in the use of its products as compared with purchasers and users.

Although a manufacturer is generally not responsible for injuries caused by substantial alterations by a third party that renders the product unsafe, even where a substantial modification has been made, an injured plaintiff may claim a post-sale failure to warn. See Liriano v. Hobart, 92 NY2d 232, 677 NYS2d 764 (1998), 170 F3d 264 (2d Cir. 1999).

If the plaintiff's lawyer cannot find any evidence that the manufacturer knew of post-sale dangers or modifications, the plaintiff has not met its burden. The first place a practitioner should look to find prior complaints is the Web site of whichever governmental organization regulates the product. The site will generally point in the direction of a helpful source. For example, National Highway Traffic Safety Administration (NHTSA) has a fine library available to the public for automotive research. Even though a recall may not have been necessitated, NHTSA is still the place to find reports by displeased car owners. For drugs, the Food and Drug Administration (FDA) will have information on products taken off the market, as well as reports of adverse drug reactions, even if the product is still on the market.

Once a practitioner has consulted all government organizations, he or she should make inquires of industry organizations to learn of the existence of industry-wide investigations. Private organizations, such as the Insurance Institute for Highway Safety (IIHS), are another place to find post-sale problems of which auto manufacturers are, or should be, aware.

Of course, the best place to look for post-sale notice of defects is with the defendant. A factory sales or service representative who has visited the factory where the product is being used and who may have seen and reported misuse or modifications to his or her employer/manufacturer usually is a good witness to depose. In drug cases, a lawyer is more likely to learn about adverse reactions from “detail men” than from a manufacturer's letters from physicians. (It is well known that doctors rarely write to drug manufacturers about adverse reactions.)

All of these are possible sources to prove notice to manufacturers in order to recover under the theory of post-sale warnings.

Although a product may be reasonably safe when it is sold, a manufacturer that later learns of risks revealed by user operation may be held responsible for failure to issue post-sale warnings. The justification for a post-sale duty to warn arises from a manufacturer's unique and superior position to follow the use and adaptation of its products by consumers. The manufacturer is best placed to learn about post-sale defects or dangers discovered in the use of its products as compared with purchasers and users.

Although a manufacturer is generally not responsible for injuries caused by substantial alterations by a third party that renders the product unsafe, even where a substantial modification has been made, an injured plaintiff may claim a post-sale failure to warn. See Liriano v. Hobart , 92 NY2d 232, 677 NYS2d 764 (1998), 170 F3d 264 (2d Cir. 1999).

If the plaintiff's lawyer cannot find any evidence that the manufacturer knew of post-sale dangers or modifications, the plaintiff has not met its burden. The first place a practitioner should look to find prior complaints is the Web site of whichever governmental organization regulates the product. The site will generally point in the direction of a helpful source. For example, National Highway Traffic Safety Administration (NHTSA) has a fine library available to the public for automotive research. Even though a recall may not have been necessitated, NHTSA is still the place to find reports by displeased car owners. For drugs, the Food and Drug Administration (FDA) will have information on products taken off the market, as well as reports of adverse drug reactions, even if the product is still on the market.

Once a practitioner has consulted all government organizations, he or she should make inquires of industry organizations to learn of the existence of industry-wide investigations. Private organizations, such as the Insurance Institute for Highway Safety (IIHS), are another place to find post-sale problems of which auto manufacturers are, or should be, aware.

Of course, the best place to look for post-sale notice of defects is with the defendant. A factory sales or service representative who has visited the factory where the product is being used and who may have seen and reported misuse or modifications to his or her employer/manufacturer usually is a good witness to depose. In drug cases, a lawyer is more likely to learn about adverse reactions from “detail men” than from a manufacturer's letters from physicians. (It is well known that doctors rarely write to drug manufacturers about adverse reactions.)

All of these are possible sources to prove notice to manufacturers in order to recover under the theory of post-sale warnings.