Presenting a live 90-minute webinar with interactive Q&A Warnings-Based Claims in Product Liability Navigating U.S. Standards for Warnings; Leveraging the Requirements in Litigation WEDNESDAY, APRIL 25, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Phoebe A. Wilkinson, Partner, Chardbourne & Parke , New York Kenneth Ross, Of Counsel, Bowman and Brooke , Minneapolis The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Warnings and Instructions: Law and Standards Kenneth Ross 952.933.1195 kenrossesq@comcast.net Bowman and Brooke LLP April 25, 2012
Defects in Warnings Definition: Defective if reasonably foreseeable risks could have been reduced by providing reasonable instructions or warnings and omission renders product not reasonably safe Kenneth Ross 6
Defects in Warnings Exception: Not required for risks and risk avoidance measures that should be obvious to reasonably foreseeable product users Only required for reasonably foreseeable users and risks Sellers down chain are liable if predecessors labels are inadequate Kenneth Ross 7
Warnings Must Be Provided If . . . The product is hazardous The manufacturer knows or should know the product is hazardous The hazard is not obvious to the user The hazard will exist during reasonably foreseeable use or misuse Kenneth Ross 8
Restatement 2d Read and heed presumption Where a warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning ... is not ... defective....” Used by Ps and Ds. Not accepted in Restatement 3d. Kenneth Ross 9
Safety Hierarchy Eliminate hazard and risk from design Add guard, barrier, or interlock Add safety labels Provide for training and instruction Recommend personal protection Kenneth Ross 10
Reasonable Foreseeability Harm and person injured must have been reasonably foreseeable. Misuse, alteration and modification do not make manufacturer liable unless they are reasonably foreseeable. Kenneth Ross 11
Obvious Hazards Warning not required for obvious hazard Because product user will or should already know of its existence. Not necessary, diminish impact of other warnings Decided by trier of fact Rationale: How to determine? Related to reasonably foreseeable Probability and severity also obvious Kenneth Ross 12
What is an adequate warning in the U.S. It is in a form that could reasonably be expected to catch the attention of a reasonably prudent person in the circumstances of the product’s use; The content is of such a nature as to be comprehensible to the average user; and It conveys a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person Kenneth Ross 13
Content of adequate warnings (law and standards) Description of hazard Probability of hazard occurring Severity if occurs How to avoid hazard Kenneth Ross 14
Labeling Standards U.S. ANSI Z535 (all products where no product specific standard applies) ANSI Z400.1/Z129.1-2010 (hazardous industrial chemicals) Europe ISO 3864 (all products except chemicals and where law requires different label) Product specific European Directives Kenneth Ross 15
Label elements Signal word – Danger, Warning or Caution Description of hazard Description of consequences (severity) Description of probability How to avoid (precautions) Kenneth Ross 16
ANSI Z535.4 Format Kenneth Ross 17
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Z535 Signal Words Danger – will cause serious injury or death Warning – could cause serious injury or death Caution – will or could cause moderate or minor injury and property damage NOTICE – property damage only Kenneth Ross 19
Sufficiency of Warnings Description of hazard - words, pictorial Probability of hazard occurring - signal word, words Severity if hazard occurs - signal word, pictorial, words How to avoid hazard - words, pictorial Kenneth Ross 20
Illiterate and non- English reading users Some courts in U.S. have held that a manufacturer may be liable if the reasonably foreseeable users are illiterate or do not read English and the label does not have pictograms or text that are readily understood by such users No U.S. cases requiring foreign language on labels Kenneth Ross 21
Multi-lingual dilemma But some customers (e.g. retailers) require multi-lingual labels and you have no choice. Population is growing increasingly non- English speaking and reading. And there are more advertisements in foreign languages in TV, radio, print. Kenneth Ross 22
Multi-lingual in U.S. Do very carefully – which languages? Don’t diminish conspicuity of English labels Put burden on employer or customer to ask for languages other than English More pictorials instead of words? Should instructions be in foreign language? Use of website to offer other languages Kenneth Ross 23
Goal of some manufacturers No text labels Pictorial only Use worldwide But what about instructions Kenneth Ross 24
Pictorials in U.S. Not required generally by most standards Some courts have encouraged use of pictorials in addition to text where some users are illiterate or speak another language Labels with pictorials and no text are vulnerable unless they clearly transmit entire message Kenneth Ross 25
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ISO Safety Labeling Standards ISO 3864 Part 2 Product Safety Labels Accepts symbol-only formats ISO 3864-2 incorporated by reference in 2007 ANSI Z535.4 Kenneth Ross 27
3864-Part 2 Accepts Various Formats Kenneth Ross 28
ISO 3864 Kenneth Ross 29
Content of adequate warnings If lack of space on product, may be acceptable to use just Signal Word and reference to instruction manual Good idea to have label offering replacement manual by mail or on website But, what must go on label and what can be in manual? What about verbal labels: www.vesstech.com Kenneth Ross 30
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Safety Label Issues Other standards – U.S. and Europe Size Placement Material Adhesion Kenneth Ross 32
U.S. Law re Instructions A court has held that warnings, standing alone, may have no practical relevance without instructions and that instructions without warnings may not be adequate. In discussing the adequacy of instructions, the cases only say that manuals should be “adequate, accurate and effective” and “clear, complete and adequately communicated.” Kenneth Ross 33
U.S. Law re Instructions Whether warning goes on product or in manual is decided on a case by case basis What about multi-lingual – no case law Kenneth Ross 34
ANSI Z535.6 - goals address the applicability of elements of other ANSI Z535-series standards to collateral materials establish a uniform and consistent visual layout for safety information in collateral materials for a wide variety of products minimize the proliferation of designs for safety information in collateral materials Kenneth Ross 35
State Of The Art Instructions Label on product referring to manual Incorporate safety information into manual Warning on cover to read manual Safety information consistent with labels, ads Reproduce labels in product manual Written for intended audience Delivered to customer Kenneth Ross 36
Other instruction issues Delivery to customer – how to prove, how to keep with product Hard copy vs. electronic? Instruction videos/CDs Websites – interactive web-based training (with or without CD-Rom) Test comprehension? Kenneth Ross 37
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