By Michael Hoenig - New York Law Journal -
January 9, 2012
February 2011 column, the problems of open-ended warnings
litigation were discussed.1 In product use the range
of possible dangers to be warned against is virtually limitless.
The universe of potential warnings one can conjure up,
particularly if all varieties of product misuse are included, is
markedly open-ended. One doesn't have to be terribly creative to
simply identify a risk that may accompany a product's design,
its packaging, its range of normal and abnormal uses and then
allege that the risk selected should have been the subject of a
warning. In the case of product misuse, one simply might allege
that the misuse was "foreseeable." And, if a warning had been
given, little problem, just say that the warning could have been
made better, safer, or more effective. Our February article
probed this subject in some depth.
A Dec. 23
decision by the Appellate Division, Fourth Department,
Johnson v. Unifirst Corp.,2 shows just how
"stubborn" and dismissal-resistant a warnings claim can be.
Plaintiff was a welder whose uniform caught fire. Defendant
supplied the uniform pursuant to an agreement with plaintiff's
employer. Plaintiff claimed negligence, strict products
liability and breach of implied warranties because the uniforms
were not flame-resistant. Defendant moved for summary judgment
which was denied.
Fourth Department held that the negligence and warranty causes
of action should have been dismissed because "defendant
established as a matter of law that it owed no duty to plaintiff
to provide or recommend flame resistant uniforms" and because
defendant established that the uniform was "fit and reasonably
safe for the ordinary purposes for which it was to be used."
Plaintiff's submissions in opposition were deemed insufficient
to raise a triable issue of fact.
products liability defective design claim likewise had to be
dismissed. Defendant submitted evidence that it offered the
employer flame resistant uniforms and that the employer, "which
was in the best position to evaluate the needs of its employees,
made a deliberate decision not to make defendant's flame
resistant uniforms available to its employees." Instead, the
employer obtained flame resistant garments from another vendor.
This evidence was sufficient to establish as a matter of law
that defendant fulfilled its duty not to market or supply a
What about the
strict products liability claim predicated on the theory of
failure to warn? Here the trial court's denial of summary
judgment was upheld. First, the Fourth Department stated, "[I]n
all but the most unusual circumstances, the adequacy of a
warning is a question of fact" to be determined at trial.
Defendant had an independent duty, said the court, to warn
employees that the uniforms were not flame resistant
irrespective of the duty undertaken by the employer under the
supply agreement. Further, defendant "failed to establish as a
matter of law that the uniform label provided an adequate
warning with respect to the flammability of the fabric."
Moreover, plaintiff's "admitted failure" to read the label on
his uniform "did not necessarily sever the causal connection"
between the alleged inadequacy of the warning and the occurrence
of the accident.
labyrinth of open-ended warnings litigation discussed in our
February column and hinted at in this new Johnson
decision usually roils and boils and churns well after the
products have been made. Often, an accident occurs many years
after the labels, warnings, instructions and owners' manuals
were formulated. Generally, the applicable time frame for
gauging defectiveness is at the time the product left the
seller's hands or at the time of design or production.3
Thus, the relevant time frame regarding the state of the art in
warnings practice and what the manufacturer knew or should have
known is the time when the product was marketed. Post-sale
warnings in regulated industries that require them or when a
manufacturer acquires later knowledge about a defect in the
field are properly governed by principles of reasonable care,
i.e., negligence, not strict products liability.
whether years ago or today, need some certainty in how to
formulate labels, warnings and instructions. Unfortunately, the
hodgepodge, hindsight approach of spotty case law holding that
this or that warning in this or that scenario was sufficient or
deficient does not supply the certainty that warnings creators
truly need. Accordingly, manufacturers have resorted to norms or
standards such as ANSI Z535 dealing with product safety labels.
Complying with such guidance, however, likely will not preclude
future warnings litigation. And, with the advent of a truly
global economy, the guidance supplied by standard-setting bodies
has become more complicated.
articles reflect that manufacturers now have and, in the future,
will have their work cut out for them in formulating labels,
warnings and instructions. Warnings legal expert Kenneth Ross
has issued a helpful article in a Defense Research Institute (DRI)
publication; the article is titled, "Warnings
and Instructions: Updated U.S. Standards and Global Requirements."4
Mr. Ross is a prolific and incisive author on warnings law and
other prevention subjects.5 In the cited article, Mr.
Ross reviews the basic duty to warn and instruct, the goals of a
warning as reflected in case law and commentary, the ANSI
standards dealing with on-product safety labels, the 2011
revisions to prior ANSI standards, the use of signal words such
as "CAUTION," "NOTICE" and the like, the differences between
"warnings" and "instructions" and the formulation of warnings
observes that there is emerging a set of foreign labeling
standards and directives by the International Organization for
Standardization (ISO) whose labeling standard, ISO 3864-2, is
"very different from ANSI Z535." The ISO approach uses symbols
as the essential ingredient. Thus, via shape, colors and symbols
ISO believes each symbol can adequately communicate a safety
message. Such a system is preferable in Europe because many
languages are spoken and read in different countries that have
open borders, allowing much mobility. Manufacturers may not know
where their products will be used during their useful lives.
Symbols help to communicate some warnings of the hazard.
Mr. Ross also
observes that the European Union's "Machinery Directive,"
effective December 2009, seems to prefer warnings in the form of
"readily understandable symbols or pictograms." ANSI Z535.4,
however, still sees a role for word messages. Mr. Ross' article
suggests to this writer that both warnings litigation and the
objective of staving off warnings liability have now become
significantly more complex. It is likely that battles of experts
will punctuate future warnings litigation. Frye,
Daubert and "foundational reliability" challenges to such
testimony will ensue.
valuable article issued in November 2011 also reflects a ramping
up of the complexity of warnings issues, both at the
manufacturer level and at the end of the litigation food chain,
when warnings issues are battled in courtrooms. This fine work
product deals with warnings for products containing "nanomaterials,"
emerging from a robust nanotechnology revolution. The authors
are William S. Rogers, Jr., Joseph A. Clark, Joyce S. Tsuji,
David L. Dahlstrom and Steven R. Arndt. The authors are
attorneys and scientists. Their article is titled, "Labeling
and Warning for Products Containing Engineered Nanomaterials:
Learning From the Past or We Are Doomed to Repeat It."6
commercialization of nanomaterials and the rapid introduction of
nano-enabled products into the marketplace, now a global
economy, raise questions about how one warns or instructs about
potential health risks concerning nanomaterials. Some 1,300
products containing nanotechnology were on the market as of
March 10, 2011, nearly a 521 percent increase since March 2006.
Among products with identified nano-scale constituents are those
with nanoscale silver, carbon nanotubes, nanofibers and
fullerenes, titanium, silica and silicon, zinc, and gold. Other
nanomaterials such as polymers, clays, quantum dots, and organic
micelles are incorporated in a few products. Over 50 percent of
the products are in health and fitness such as personal care,
clothing, cosmetics and sporting goods. Fewer are in categories
such as home and garden, automotive, and food and beverage.
surveys the state of knowledge on health risks of engineered
nanomaterials, potential for exposure, available toxicity
information and potential for health risk. The latter is likely
low for current consumer products since the major types of
nanomaterials being used are of lower toxicity or are
encapsulated or incorporated within components resulting in low
human exposures under most circumstances. However, information
is still considered incomplete and, as new nanomaterials are
produced, health risks in products will have to be assessed.
goes on to survey warnings law in three states (Massachusetts,
California and New York) as well as the Restatement (3d) on
Products Liability. The authors discuss whether a draft
technical standard (DTS) for warnings on nanomaterials and
products containing them would provide much-needed guidance. The
ISO has released a new Technical Report that may serve as an
informative, "due diligence reference" for all manufacturers of
nanomaterials or products containing them. A short survey on
ANSI and ISO standards related to warning and labeling is
conclude that the development of proper warnings and/or labeling
"is a multidisciplinary process" that should include "careful
input from risk managers, engineers, industrial hygienists,
toxicologists and qualified legal counsel." A list of
"references cited" is helpful for those interested in further
The open-ended nature of warnings litigation already presents
enormous challenges to the justice system. The new developments
reported in the two articles mentioned above suggest that, if
anything, warnings litigation will continue to play a
significant role, perhaps at a more complicated level.
Michael Hoenig is a
member of Herzfeld & Rubin.
1. Hoenig, "The
Ills of Open-Ended Warnings Litigation," New York Law Journal,
Feb. 14, 2011, p. 3.
2. 2011 NY Slip
Op 09431 (4th Dept. Dec. 23, 2011).
Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107,
108, 111 (1983);
Liriano v. Hobart Corp.,
92 N.Y. 2d 232, 238 (1998);
Cover v. Cohen, 61 N.Y. 2d 261 (1984).
4. K. Ross, DRI
Products Liab. Committee, Strictly Speaking, vol. 8, Issue 4
(Dec. 30, 2011).
5. Mr. Ross'
other articles on warnings and various prevention topics can be
www.productliabilityprevention.com. He can be reached at
6. BNA, Product Safety & Liability Rptr., vol. 39, no. 46, pp. 1283-1293
(Nov. 21, 2011).
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