Warning: fourthingstoavoid when developing your products' warnings (no joke).
* Resisting the need to warn: The question should not be whether a warning is "required" or whether competitors are warning but, rather, whether a warning could assist in avoiding or defending a liability claim. The goal of a warning is to inform the user of the nature and gravity of a foreseeable risk and how to avoid it. Users can be motivated, at least in theory, to heed a warning by giving them an appreciation of the magnitude of the risk, and an understandable, easy-to-follow instruction on how to steer clear of it.
* Failing to identify foreseeable risks: When a new product is being launched, an investigation should be conducted to assess the risks that might be eliminated or reduced, if not by a design change, with effective warnings. While there is no duty to make a product "idiot proof," there is a duty to warn against reasonably foreseeable risks. If conducted at the direction of counsel, such investigations may be protected by the attorney-client privilege and/or the work product doctrine. Expert advice, whether from the manufacturer's design or engineering team or an independent outside expert, can inform counsel's advice as to what warnings need to be given. If risks are not detected until after a product is on the market, it is much more difficult to issue effective post-sale warnings.
* Minimizing a warning's prominence: In order to be effective, a warning must be attention-grabbing. Warnings on the bottom of a box or in fine print, for example, may be totally ineffective. Factors that help to call attention to a warning include the use of "signal" words, such as "WARNING" or "CAUTION"; contrasting colors; bolding; larger font sizes; bullet points; and a border/box around a warning.
Often, however, efforts to warn meet with resistance from the marketing team. They may be concerned that a warning will overshadow the advertising messages that they want to convey on the same packaging. The urge to minimize a warning's prominence should be resisted and, ideally, a balance should be struck between the visibility of the warning and that of the messaging concerning the product's positive attributes.
* Creating Inconsistent Messages. Ideally, the instruction manual, packaging and warning labels should all be created or updated at the same time, to ensure consistency. If "Safety Information" is presented at the front of an instruction booklet and warnings are repeated at appropriate points later in the instructions, again, they must be consistent. Often a change made in one place is overlooked in another.
If these four pitfalls are considered ahead of time and appropriately prominent, informative and consistent warnings are given as to all reasonably foreseeable risks, there is a good chance that injuries and claims may be minimized and the ever-popular failure-to-warn claim will be avoided or successfully defeated.
Editor's Note: The comments are those of the author and are not necessarily views shared by HTN or Macfadden Communications.
Deborah A Little is an attorney with the Pittsburgh office of Buchanan Ingersoll & Rooney For the past decade she ha s focused her practice on products liability litigation in a variety of consumer products industries. She can be contacted at www.bipc.com/deborah-a-little or firstname.lastname@example.org.
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|Title Annotation:||legally speaking|
|Author:||Little, Deborah A.|
|Publication:||HFN Home Furnishings News|
|Date:||Sep 1, 2014|
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