In many jurisdictions, a product liability plaintiff is not permitted to testify concerning what he or she would have done had there been an adequate warning on a product; such testimony is considered both self-serving and speculative. In the absence of such testimony, some states have adopted the Heeding Presumption.
This rebuttable presumption instructs the jury that had an adequate warning accompanied the product, they are to presume that plaintiff would have “heeded” or followed the warning. This presumption establishes causation by permitting the inference that an adequate warning would have altered plaintiff’s conduct.
In a compelling article published in the Bloomberg BNA Prduct Safety & Liability Reporter on August 23, 2012, titled," 'If Only I would Have Been Told.....' A Failure to Warn Discussion: Causation, the Uncertainty Principle, the Benign Experience Principle", William O. ("Skip") Martin Jr., a partner at Haight Brown and Bonesteel in Los Angeles, discusses the Heeding Presumption and provides strategies for defense counsel to overcome the presumption at trial.
In Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir. 1974), the Fifth Circuit adopted the Heeding Presumption and described it as follows:
Where a consumer, whose injury the manufacturers should have reasonably foreseen, is injured by a product sold without a required warning, a rebuttable presumption will arise if the consumer would have read any warning provided by the manufacturer, and acted so as to minimize the risks. In the absence of evidence rebutting the presumption, a jury finding that the defendant’s product was the producing cause of the plaintiff’s injury would be sufficient to hold him liable.
Martin advises that the Heeding Presumption may be rebutted by demonstrating either that the plaintiff did not read or look for any warning, or that plaintiff failed to follow adequate warnings on the product. In the article, Martin provides good case law examples of both scenarios. If it can be demonstrated that the plaintiff would not have read the warning or, if he or she had read them, would not have heeded the warning, the Heeding Presumption is overcome. The key to a successful defense of a failure to warn claim is to require plaintiff to demonstrate that his or her failure to warn claim was a proximate cause of the injury. Often, trial judges overlook that it is plaintiff’s legal burden to establish that an allegedly inadequate or missing warning was a cause of the injury.
In addition to his discussion of the Heeding Presumption, Martin also provides a good outline for taking the deposition of an adversary human factors or warnings expert. Most plaintiff warnings experts fail to present any competent evidence as to whether a warning would have altered the plaintiff’s conduct. Human factors/warnings experts criticize the existing warning or lack of a warning on a product label, but often have done little or nothing to determine how a different warning would have altered the outcome. Again, by focusing on the causation element in plaintiff’s burden of proof, a defendant can reduce the “sting” of plaintiff’s failure to warn allegation.