Invocation of the heeding presumption largely turns on public policy considerations.
The first and perhaps the strongest argument that defense counsel can assert is that the heeding presumption departs from long-standing legal principles in three ways:
First, the heeding presumption is incorrectly based on Comment j, because Comment j was intended to benefit defendants, not plaintiffs.
When applied through the heeding presumption to situations where no warning was given, Comment j then benefits the plaintiff rather than the intended defendant.
Second, the heeding presumption departs from the traditional proximate causation requirement of a failure-to-warn case.
51) In fact, Section 2, Comment 1, of the Restatement (Third) nullifies the unfairness that results when plaintiffs are relieved of their burden to prove causation; it does so by eliminating the heeding presumption by not mentioning it, yet requiring proof of causation.
Thus, because the new Restatement focuses on an adequate design and less on adequacy of warnings, the heeding presumption is currently not a major focus and is not recognized under the Restatement.
In Uniroyal, the Texas Supreme Court rejected the plaintiff's attempt to invoke the heeding presumption based on the Restatement (Second), observing that the Restatement (Third) "expressly rejects the Comment j approach.
Defense counsel should argue strenuously that the Restatement (Third) has rejected the heeding presumption and instead encourages safer designs.
The entire premise of the heeding presumption (1) is inconsistent with real-world experience that users ignore warnings; (2) is based on evidence that is not sufficiently reliable or scientific; and (3) allows, indeed encourages, speculative evidence to prove what plaintiffs might have done.
Thus, the heeding presumption should not be used because it allows unreliable, unscientific evidence, contrary to the trend to require reliable, scientific evidence.
Because the heeding presumption is mainly a question of policy, defense counsel must assert as many policy arguments as possible against it.
Otherwise inadmissible character evidence is allowed when the heeding presumption arises.
No evidence exists that fewer injuries will result if the heeding presumption applies.
The heeding presumption is unfair to defendants, by making them pay for more injuries than they actually cause.