A law review article by professors Aaron D. Twerski and James A. Henderson Jr. is about to be published in the Indiana Law Journal, 90 Ind. L.J. ___ (vol. 1 Fall 2014), and it merits serious attention by the bench and litigation bar. Provocatively titled, “Fixing Failure to Warn,” the noted authors once again reveal serious ills in the current system of warnings litigation and provide a logical, simple “fix” that is analogous to a widely accepted construct in product design litigation. They suggest that, just as a claimant alleging a defective product design must prove the practicable feasibility of defendant incorporating a safer “reasonable alternative design” (RAD), so too, a claimant urging a product’s inadequate warning should have to prove a safer reasonable alternative warning (RAW).
These noted scholars—Twerski is a professor of Brooklyn Law School and Henderson is professor emeritus at Cornell Law School—are no strangers to products liability law, and the legal standards for gauging when designs or warnings are to be considered “defective.” Both were Reporters for the Restatement of Torts, Third: Products Liability, the American Law Institute’s prestigious and oft-cited collection of black-letter rules and commentary governing products liability. They also authored the 1990 “Doctrinal Collapse” article about warnings in the New York University Law Review which, 10 years later, was cited as one of the 25 most influential articles published by the NYU Law Review over the previous 75 years. “Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn,” 65 N.Y.U. L. Rev. 265 (1990). There the authors unmasked major shortcomings in how courts handled warning litigation. Prior to surveying some highlights of Twerski and Henderson’s brand new proposal to “fix” the law of warnings, let’s review some of the major problems.
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