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An unusual twist in the typical product liability case can occur when a plaintiff asserts a post-sale warning claim. (In this article, “product” does not refer to consumer products that are subject to the jurisdiction of the U.S. Consumer Product Safety Commission.) Because a post-sale warning claim is not frequently encountered, such a claim can cause confusion, especially with respect to the relation between the post-sale warning claim and the other claims that a plaintiff is asserting.

The following hypothetical helps to highlight a few of the problems that can arise when a plaintiff asserts a post-sale warning claim. The plaintiff is injured by a product in the workplace and sues the manufacturer of the product, alleging design defect, manufacturing defect, and warning defect claims. As to the warning claims, the plaintiff asserts that the product was defective because it did not contain an adequate warning when it was initially placed into the stream of commerce, and also contends that the manufacturer is liable because it should have issued a post-sale warning. All of those claims, with the exception of the post-sale warning claim, focus on facts, and hence evidence, that transpired prior to the manufacturer’s placing the product into the stream of commerce.

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