For The Defense, DRI, Vol. 57, No. 11

Authors: Patricia E. Antezana David G. Curry, John E. Meyer

In product liability litigation, a party may contend that the literature or warnings on a product downplayed the hazards associated with it, either by selecting the incorrect term for the level of hazard involved for a product warning (i.e., using “Caution” instead of “Warning” or using “Warning” instead of “Danger”), by providing no warning regarding a particular hazard at all, or by not designing or guarding against a particular hazard. While in some cases such allegations may be completely on target, it is often the case that counsel either does not understand (or possibly simply would like for the jury not to understand) how appropriate terms are selected or which hazards can and should be addressed during the product design cycle. Appropriate warning terminology, as well as whether or not a warning, guard, or product design change is warranted, stems from a hazard-and risk analysis of a product, not simply from an elementary identification of the worst potential outcome that might arise from the product’s improper use.

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