Maintaining her claim, she reports that "[i]n indirect speech, one can warn that, warn about, warn of
, warn off, warn not to (do something) or warn to (do something)." In this study, warning refers to the different strategies used for getting the attention of the addressee and making him/her alert to a specific danger or bad consequences.
In those states, cases that deal with a manufacturer's duty to warn of a product's dangers before it is sold provide the basis for plaintiff attorneys to argue that this duty should be imposed after sale as well.
A manufacturer's duty to warn of a product's dangers after its sale is compatible with and has evolved from the traditional point-of-sale duty to warn.
Under the section, a seller or distributor of a product (under the restatement's definitions, these include a manufacturer) may be liable for harm caused by its failure to warn of a product's dangers when "a reasonable person in the seller's position" would have provided a warning.
Superior Court (Upjohn Co.) recently held that drug manufacturers are subject to strict liability, rather than simple negligence, for failure to warn of known or knowable pharmaceutical risks.1 In doing so, the court recognized the distinction between design defect and failure to warn claims, and it laid to rest the question of whether its decision in Brown v.
In Carlin, the plaintiff claimed that Upjohn was strictly liable for failing to warn of the emotional, physical, and psychological dangers of Halcion that were either known to Upjohn or reasonably knowable scientifically.
Upjohn's argument misses the point because it fails to distinguish between two separate issues: (1) whether the manufacturer knew or could have known of a risk; and (2) whether the manufacturer decided not to warn of a known risk.
Brown rejected only absolute liability -- liability for failure to warn of a risk a manufacturer could not have known.
Brown characterized comment k as stating a principle of negligence because the manufacturer would be liable "only if it failed to warn of a defect of which it either knew or should have known."(10) This standard focuses "on the fault of the producer in failing to warn of dangers inherent in the use of its product that were either known or knowable" and thus "rings of negligence."(11) Brown therefore characterized liability for failing to warn of known or knowable dangers as negligence and distinguished this from a manufacturer's liability for failing to warn "even if it neither knew nor could have known of the defect," which the court characterized as strict liability.(12)
Although Brown's reference to negligence has proved misleading to some, the court clearly was addressing a manufacturer's failure to use reasonable care in discovering a drug's danger, not the separate issue of a manufacturer's decision not to warn of a known or knowable danger.
Existing California law, as established in Brown and Anderson, therefore compelled the conclusion in Carlin that a plaintiff could maintain a cause of action in strict liability for failure to warn of known or knowable pharmaceutical risks unless there was a valid policy reason for carving out an exception for drugs.
Justice Joyce Kennard voiced similar concerns in advocating a modified negligence standard for failure to warn of drug risks.
Strict liability for failure to warn of a known or knowable danger does not subject manufacturers to any threat of liability over which they have no control.