Wednesday, August 8, 2012

Recent Ninth Circuit Opinion on whether a manufacturer has a duty to warn of a particular risk

About a month ago, the Court of Appeals for the Ninth Circuit issued a short opinion on how to determine if a manufacturer has a duty to warn of a particular risk created by its products.   As stated by the court, the case called upon the court “to decide whether, in August 2004, a manufacturer of electronic control devices, commonly referred to as “tasers,” was under a duty to warn that repeated exposure to its products could lead to fatal levels of metabolic acidosis.”

Applying California law, which appears to be typical on this issue, the court stated that manufacturers have a duty to warn of a particular risk “if it is known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.”  Then the court explained the basic principles on the issue of what is “knowable”:

(1) manufacturers are held to the knowledge and skill of an expert in the field

(2) manufacturers are obliged to keep abreast of any scientific discoveries and are presumed to know the results of all such advances.

(3) manufacturers cannot defeat liability by claiming they did not review the relevant scientific literature.

But, (4) manufacturers are not under a duty to warn of every report of a possible risk, no matter how speculative, conjectural, or tentative.

Applying these principles to the facts of the case, the court found that to establish that the risk that the defendant’s products could cause fatal levels of metabolic acidosis was knowable by December 2003, the plaintiffs relied primarily on four peer-reviewed articles and concluded that these articles did not present a triable issue of fact that the risk was more than purely speculative.

The case is called Rosa v. Taser International and it is available here.

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