Law

So we fight the heeding presumption whenever it comes up.  Some states have good law on the issue.  N.C. G.S.A. §99B-5(a); Wis. Stat. §895.047(1)(e); Ford Motor Co. v. Boomer, 736 S.E.2d 724, 733 (Va. 2013); Rivera v. Philip Morris, Inc., 209 P.3d 271, 274 (Nev. 2009); Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 528-29 (Iowa 1999); Riley v. American Honda Motor Co., 856 P.2d 196, 199-200 (Mont. 1993); Deere & Co. v. Grose, 586 So. 2d 196, 198 (Ala. 1991); Huitt v. Southern California Gas Co., 116 Cal. Rptr.3d 453, 467-68 (Cal. App. 2010); Harris v. International Truck & Engine Corp., 912 So. 2d 1101, 1109 (Miss. App. 2005); McPike v. Enciso’s Cocina Mejicana, Inc., 762 P.2d 315, 319 (Or. App. 1988); DeJesus v. Craftsman Machinery Co., 548 A.2d 736 (Conn. App. 1988); Muilenberg v. Upjohn Co., 320 N.W.2d 358, 366 (Mich. App. 1982); Potthoff v. Alms, 583 P.2d 309, 311 (Colo. App. 1978); Payne v. Novartis Pharmaceuticals Corp., 767 F.3d 526 (6th Cir. 2014) (applying Tennessee law); Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 925 (8th Cir. 2004) (applying Minnesota law); Wilson v. Bradlees of New England, Inc., 250 F.3d 10 (1st Cir. 2001) (applying New Hampshire law); Christopher v. Cutter Laboratories, 53 F.3d 1184, 1192-93 (11th Cir. 1995) (applying Florida law); Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992) (applying South Carolina law); Muzichuck v. Forest Laboratories, Inc., 2015 WL 235226, at *13 (N.D.W. Va. Jan. 16, 2015); Luttrell v. Novartis Pharmaceuticals Corp., 894 F. Supp.2d 1324, 1345 n.16 (E.D. Wash. 2012).

Almost as many states are adverse.  House v. Armour, Inc., 929 P.2d 340, 347 (Utah 1996); Coffman v. Keene Corp., 628 A.2d 710, 717-19 (N.J. 1993); Eagle-Picher Industries, Inc. v. Balbos, 604 A.2d 445, 468-69 (Md. 1992); Bushong v. Garman Co., 843 S.W.2d 807, 811 (Ark. 1992); Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. 1992); Butz v. Werner, 438 N.W.2d 509, 517 (N.D. 1989); Harlow v. Chin, 545 N.E.2d 602, 606 (Mass. 1989); Bloxom v. Bloxom, 512 So.2d 839, 850 (La. 1987); Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 725 (D.C. 1985); Wooderson v. Ortho Pharmaceutical Corp., 681 P.2d 1038, 1057-58 (Kan. 1984); Seley v. G.D. Searle Co., 423 N.E.2d 831, 838 (Ohio 1981); Menard v. Newhall, 373 A.2d 505, 506 (Vt. 1977); Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1382 (Okla. 1974); Dole Food Co. v. North Carolina Foam Industries, Inc., 935 P.2d 876, 883 (Ariz. App. 1996); Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d 541, 555 (Ind. App. 1979).

Since the turn of the century, our team has a definite edge (more on why that is so, below, as well).

A few states, like Pennsylvania, and Texas, are somewhere in the middle – allowing a heeding presumption in some product liability situations, but not for cases involving prescription medical products.  Compare Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 620-21 (Pa. Super. 1999), with Lineberger v. Wyeth, 894 A.2d 141, 145, 149-50 (Pa. Super. 2006); and Technical Chemical Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972), with Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203, 212-13 (5th Cir. 2008) (applying Texas law).

And then there’s New York, where the law can charitably be described as a morass.  So how did the law of the Empire State crumble into quicksand?

Well, it’s not a problem with basic warning law.  The New York Court of Appeals is fine on the burden of proof in warning cases generally.  The black letter law, in New York as in most places, is that “[i]n order to prevail at trial in a negligence case, a plaintiff must establish by a preponderance of the evidence that the defendant’s negligence was a proximate cause of plaintiff’s injuries.”  Burgos v. Aqueduct Realty Corp., 706 N.E.2d 1163, 1165 (N.Y. 1998).  “The burden of proof to establish causal negligence is upon the plaintiff.”  Hirsh v. State, 168 N.E.2d 372, 373 (N.Y. 1960).  “It is well settled that a plaintiff must generally show that the defendant’s negligence was a substantial factor in producing the injury to satisfy the burden of proving a prima facie case.”  Wild v. Catholic Health System, 991 N.E.2d 704, 706 (N.Y. 2013).  What’s more, there’s no difference between negligence and strict liability in New York, insofar as warnings are concerned.  “New York views negligence and strict liability claims as equivalent.”  Martin v. Hacker, 628 N.E.2d 1308, 1311 n.1 (N.Y. 1993).

In a bunch of cases, the New York intermediate appellate courts have followed this traditional burden of proof in product liability litigation warning cases.  “[I]n any products liability case, the plaintiff in an action premised on inadequate warnings must prove causation.”  Estrada v. Berkel Inc., 789 N.Y.S.2d 172, 174 (N.Y.A.D. 2005).  “[A] plaintiff whose claim is based on inadequate warnings must prove . . . that if adequate warnings had been provided, the product would not have been misused.”  Banks v. Makita U.S.A., 641 N.Y.S.2d 875, 877 (N.Y.A.D. 1996).  “Plaintiffs had the burden to show that had a different warning been given, this patient would not have used the product that caused her injury.”  Mulhall v. Hannafin, 841 N.Y.S.2d 282, 287 (N.Y.A.D.  2007).  In Reis v. Volvo Cars, Inc., 901 N.Y.S.2d 10 (N.Y.A.D. 2010), the court held that the plaintiff’s “failure to warn claims should have been dismissed because . . . there is no proof in the record that [plaintiff] would have read and heeded a warning had one been given.”  Id. at 13.  Reis followed Sosna v. American Home Products, 748 N.Y.S.2d 548 (N.Y.A.D.  2002), a prescription drug case holding that:

Traditional causation also finds support in federal decisions applying New York law.  “A plaintiff proceeding under a failure-to-warn theory in New York must demonstrate that the failure to warn adequately of the dangers of a product was a proximate cause of his or her injuries.”  Bravman v. Baxter Healthcare Corp., 984 F.2d 71, 75 (2d Cir. 1993).

Still, numerous New York cases have gone south on the heeding presumption.  Union Carbide Co. v. Affiliated FM Inssurance Co., 955 N.Y.S.2d 572, 575 (N.Y.A.D. 2012) (“New York law presumes that users will heed warnings provided with a product”); Power v. Crown Controls Co., 568 N.Y.S.2d 674, 675 (N.Y. Sup. 1990) (“the presumption that a user would have heeded warnings can be rebutted by proof that an adequate warning would have been futile”); Adesina v. Aladan Co., 438 F. Supp.2d 329, 338 (S.D.N.Y., 2006) (“[f]ailure to warn law includes a presumption that ‘a user would have heeded warnings if they had been given, and that the injury would not have occurred’”) (quoting G.E. Capital Co. v. A.O. Smith Co., 2003 WL 21498901 at *5 (S.D.N.Y. 2003)); Henry v Rehab Plus Inc., 404 F. Supp.2d 435, 442 (E.D.N.Y. 2005) (“[i]n New York there is a presumption that a user would have heeded warnings if they had been provided and that the injury would not have occurred”); Santoro v. Donnelly, 340 F. Supp.2d 464, 486 (S.D.N.Y. 2004) (same); Anderson v. Hedstrom Co., 76 F. Supp.2d 422, 441 (S.D.N.Y. 1999) (“New York [follows] a presumption that a user would have heeded warnings if they had been provided, and that the injury would not have occurred”).

What created this split?  We think two things did – and one thing did not.

First, the “did not.”  We can say with some confidence that, unlike most other states, the culprit in New York was not Restatement §402A, comment j.  That’s because New York has never recognized comment j.  The New York Court of Appeals has cited comment j a grand total of one time:  thirty years ago, in a dissent, on a different issue.  See Schumacher v. Richards Shear Co., N.E.2d 195, 202 (N.Y. 1983) (comment j cited concerning a “duty to become and remain aware of . . .  technical developments”) (Jasen, J., dissenting).  Instead of comment j – or §402A strict liability generally – as we’ve already mentioned, in warning cases, New York law treats negligence and strict liability claims as “equivalent.”  Martin, 628 N.E.2d at 1311 n.1.  The relevant tests negligent warnings are found in Restatement (Second) of Torts §388 (1965), which (in stark contrast to §402A, comment j) the Court of Appeals has cited repeatedly, if not particularly recently.  E.g., Sukljian v. Charles Ross & Son Co., 503 N.E.2d 1358, 1362 (N.Y. 1986); Cover v. Cohen, 473 N.Y.S.2d 378, 385-85 (N.Y. 1984); Robinson v. Reed-Prentice, 403 N.E.2d 440, 446-47 (N.Y. 1980).  Notably, neither Restatement §388, nor any of its comments, contains language suggesting a presumption, assumption, or anything of the sort with respect to the reading and heeding of warnings.  Also notably, none of the New York cases relying on a heeding presumption have even suggested that it also applies in negligence, which the logic of Martin would require, if such a presumption actually existed.

Nor is the comment j language from which the heeding presumption originally arose even valid any longer.  Instead, that part of comment j has been expressly repudiated by the American Law Institute (“ALI”) itself.  The ALI, in its more recent Third Restatement of Torts, explicitly rejected the position that products with open and obvious design defects are not “defective” in design because users could be presumed to read and heed adequate warnings of their risks:

Comment l’s design-related recognition that “warnings may be ignored” by consumers, as recognized and discussed by the drafters of the Third Restatement, is antithetical to any heeding presumption:

Now for the “dids.”  In our view the culprits in the creation of the New York heeding presumption morass are, first, the failure of certain courts to appreciate the differences between differing kinds of warning defects; and second one grotesquely distorted prediction of New York law by the Second Circuit – ironically at almost precisely the same time that the Third Restatement was kicking out the comment j jams from the heeding presumption.  See Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir. 1999).

Warning claims can be divided (as can many things, such as New York resident presidential candidates) between substance and optics.  While the law recognizes claims that turn on the conspicuity of warnings, as opposed to their substance, see Martin, 628 N.E.2d at 1312, this type of claim is uncommon compared to allegations that the content of product warnings was absent or inadequate.  Martin, for one, spent one sentence on non-informational warning claims and several paragraphs on informational ones.  Id. at 1311-13.  In conspicuity cases, warning prominence bears directly on causation, and is a way around the otherwise dispositive defense that the actor didn’t read the warning.  Most warning cases, including almost all drug/device warnings (since boxed warning claims are preempted) turn instead on what product warnings actually say.

This distinction was discussed in Johnson v. Johnson Chemical Co., 588 N.Y.S.2d 607 (N.Y.A.D. 1992).  The general rule “in any products liability case, [is that] the plaintiff in an action premised on inadequate warnings must prove causation,” and a plaintiff in a product misuse case can recover only if “he proves that, [with] adequate warnings . . . the product in question would not have been misused.”  Id. at 611.  In a warning “prominence” case, however, that “argument loses its persuasive force”:

One of the cases Johnson cited, id. at 611-12, is Baker v. St. Agnes Hospital, 421 N.Y.S.2d 81 (N.Y.A.D. 1979), another conspicuity case.  In Baker, a drug case, the plaintiff’s problem was that the substantively adequate warning was typically removed by pharmacists before prescribing physicians received it – a variant of the physician failure to read defense.  The court in Baker let plaintiff get away with an argument that other methods (such as “Dear Doctor” letters) would have been a “more effective means of communicating its warning.”  Id. at 86.  See also LaPaglia v. Sears Roebuck & Co., 531 N.Y.S.2d 623, 628 (N.Y.A.D. 1988) (ignored warning should have been more “prominent”); Hoffman-Rattet v. Ortho Pharmaceutical Corp., 516 N.Y.S.2d 856, 861 (N.Y. Sup. 1987) (product had “allegedly inadequately conveyed updated warnings”); Monell v. Scooter Store, Ltd., 895 F. Supp. 2d 398, 414 (N.D.N.Y. 2012) (“location of the warning was insufficient”); Derienzo v. Trek Bicycle Corp., 376 F. Supp.2d 537, 568-69 (S.D.N.Y. 2005) (warning allegedly “inconspicuous”); Santoro, 340 F. Supp. 2d at 490 (product should have had an “exterior warning”); Anderson v. Hedstrom Corp., 76 F. Supp.2d 422, 441-43 (S.D.N.Y. 1999) (warning should have been “in bold letters on the [product] itself”).  Conspicuity cases, cabined by the language of actually-given warnings, involve none of the rank speculation created by assuming that any allegedly “adequate” language, conveyed at unknown times in unknown ways, would have been heeded.  Indeed,  most conspicuity cases, like Johnson and Baker, do not purport to shift the burden of proof, and thus aren’t really heeding presumption cases at all.

Second, and particularly in federal courts, cases attempting to apply New York law are bedeviled by ill-chosen language in Liriano.  The plaintiff’s case in Liriano lacked any evidence that a warning would have altered the his conduct (sticking his hand in an unguarded meat grinder), but the jury nevertheless returned a plaintiff’s verdict.  Second Circuit also shrugged off the absence of warning causation evidence, with the comment that the traditional burden of proof “rested on a false premise.”  170 F.3d at 271.  Instead, Liriano discovered a factual “inference” that “shift[ed]” the burden of proof:

Liriano did not mention, let alone discuss, New York Court of Appeals decisions such as Burgos and Hirsh stating that plaintiffs always bears the burden of proving causation in warning cases.  Instead, the Second Circuit cited, as supposed precedent for “shifting” the burden of proof on causation in product liability warning cases, Martin v. Herzog, 126 N.E. 814 (N.Y. 1920), an ancient negligence case involving an accident allegedly caused by nonuse of headlights on a horse-drawn buggy being driven at night.  Liriano did not mention, however, that Martin was a contributory negligence case.  The occupants of the buggy − proceeding without lights after dark − were the plaintiffs, so the burden of proving their negligence rested on the defendant.  126 N.E. at 814.  Martin was thus inapposite to a plaintiff’s burden of proof in routine product liability cases.  The “inference” mentioned in Martin, 126 N.E. at 816, satisfied the defendant’s pre-existing burden of establishing the affirmative defense of contributory negligence.  It did not “shift” that burden in any way.  But even if Liriano had been about contributory negligence, the Second Circuit got it wrong.  “The rule [in contributory negligence cases] does not entitle the jury to presume plaintiff exercised due care at the time of the accident nor does it shift the burden of proof:  plaintiff must still establish a prima facie case.”  Sawyer v. Dreis & Krump Manufacturing Co., 502 N.Y.S.2d 696, 699 (N.Y. 1986).

In suggesting that an “inference” could reverse the ordinary burden of proof, Liriano seriously misread New York law.  Indeed, the New York Court of Appeals has repeatedly complained about precisely this type of holding. “[T]he indiscriminate use of the terms ‘presumption’ and ‘inference’ [has] caused procedural problems.”  Morejon v. Rais Construction Co., 851 N.E.2d 1143, 1146 (N.Y. 2006).  “[A]n ‘inference’ and a ‘presumption’ are not identical in scope or effect.”  George Foltis, Inc. v. City of New York, 38 N.E.2d 455, 462 (N.Y. 1941).

Liriano isn’t even consistent with prior Second Circuit precedent, which recognized that what the plaintiff was trying to pass off as a “heeding presumption” was really nothing more than a permissible jury inference:

All those New York federal cases we cited above, which purport to recognize a general heeding presumption, are ultimately dependent upon the erroneous Liriano decision.  They either follow Liriano directly, or else cases such as Anderson, 76 F. Supp.2d at 441-43, that, in turn, relied extensively on Liriano.  See Adesina, 438 F. Supp.2d at 338 (citing Liriano); Santoro, 340 F. Supp.2d at 490 nn. 153-54 (citing Anderson); G.E. Capital, 2003 WL 21498901, at *5 (same); cf. Henry, 404 F. Supp.2d  442 (not citing any New York precedent).

Thus, the current muddle in New York law concerning the heeding presumption is a product of a result-oriented Second Circuit opinion trying to stretch New York law in violation of basic Erie principles.  See, e.g., Travelers Insurance Co. v. Carpenter, 411 F.3d 323, 329 (2d Cir. 2005).  “[E]mbrac[ing] the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant” is not the business of federal courts in diversity cases.  Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Learned Hand dissenting), vacated, 323 U.S. 101 (1944).  That has combined with an unfortunate tendency of some courts to ignore the difference between warning cases based on substance and those based on conspicuity.  Whatever, the reason, such woolly-headedness does not extend to New York’s highest court, which has firmly stuck to the traditional burden of proof in warning causation cases.  Given the size of the mess that the lower courts have created on this topic, it will probably require the New York Court of Appeals to clean it up.