Wacky Warning Labels Finalists–A Commentary on the State of Affairs in Products Liability Law

Last week, we heard an NPR story about a Wacky Warning Label Contest put on by a man named Bob Dorigo Jones, a Senior Fellow at the Center for America.  According to its website, the Center for America’s mission is “to educate, motivate, and empower Americans to expand skills, entrepreneurship, prosperity and freedom.”

The contest works like this:  People submit entries for the product warning labels which “entertain[] and alarm[] the nation about the lawsuit-happy culture and the lengths to which companies must go to avoid lawsuits.”  People can venture online and vote for their favorites, and there are even cash prizes for the contest winners.  We here at Abnormal Use like the concept of this contest: highlighting the ridiculous lengths to which manufacturers must go to protect themselves from lawsuits, and to protect people from their own lack of common sense.

For instance, here is one of the finalists:

You can view all of this year’s finalists here.  The contest has been going on for fourteen years.  Some information about the 2010 contest can be found here.  The winners of the 2011 contest will be announced in June.  We can’t wait, and we’ll be sure to let you know which warning label wins.  In the meantime, we’d like to hear your thoughts about the most absurd warning labels you’ve encountered, either as a consumer or legal professional.

Manufacturer of Rub Cream Wins Summary Judgment on Allegations of Diabetic Foot Injuries

Earlier this month, the U.S. District Court for the Northern District of Georgia considered the case of Kersey v. Dolgencorp LLC, No. 1:09-CV-898-RWS, 2011 WL 1670886 (N.D. Ga. May 3, 2011). The case involved a tube of Dollar General Maximum Strength Muscle Rub Cream, which was manufactured by defendant Faria and sold under the Dollar General brand. The Plaintiff brought suit against both Dollar General and Faria, alleging that the rub cream caused her to develop multiple diabetic ulcers secondary to chemical burns. Ms. Kersey had been diagnosed with diabetes in 1994, which caused her to have severe diabetic neuropathy in her feet. She had been using the rub cream since 2006 or 2007; these alleged injuries occurred in 2008.

The lawsuit alleged four causes of action against Faria and Dollar General, including (1) negligence, (2) strict liability, (3) breach of express warranty, and (4) breach of implied warranty. Both defendants moved for summary judgment. Plaintiff abandoned all of her claims against Dollar General, as well as the breach of warranty claims against Faria prior to the hearing on Defendants’ motion and, therefore, the court granted the Defendants’ summary judgment motions as to those claims.

The court discussed three claims alleged by Plaintiff in turn: design defect, manufacturing defect, and failure to warn. The court granted Faria’s summary judgment motion as to the design defect. First, it noted that Plaintiff had not even discussed the rub cream’s design, and because she had not presented any evidence of the product’s inherent risks, nor presented an alternative design. The court also noted that the rub cream had been tested by the Food and Drug Administration and determined its composition to be safe and effective.

The court also granted Faria’s motion for summary judgment based on the theory of the manufacturing defect. Plaintiff had not even had the product tested to back up any allegation she may have had that the particular tube of the rub cream was stronger or weaker than the standard formula. No genuine issue of material fact there.

Finally, the court considered the failure to warn claim. The warnings on the box containing the rub cream read as follows:

— For external use only.
— Use only as directed.
— Keep out of reach of children to avoid accidental poisoning.
— Discontinue use if excessive irritation o[f] the skin develops.
— Do not bandage tightly, apply to wounds or damaged skin or use with a
heating pad.
— If condition worsens, of if symptoms persist for more than 7 days or
clear-up and occur again within a few days, discontinue use of this product and
consult a doctor.
— If swallowed, get medical help or contact a Poison Control Center right

The court made a number of findings before granting Faria’s motion for summary judgment on this theory. First, Plaintiff’s doctors stated only that Faria should have known that the rub cream would have been absorbed by the skin, not that this phenomenon would be injurious to diabetics. Second, this was the very first complaint that Faria had ever received about the product  after it had manufactured more than 8 million tubes of the cream. Finally, the court noted that Plaintiff had developed these injuries after using the cream and then putting on socks and shoes, which the court found to violate the warning on the box that advises against bandaging skin after using the product.

The final cautionary note can be found in the case’s only footnote, where the Court indicated without even being asked that Plaintiff’s case had “a strong proximate causation problem.” Indeed, Plaintiff had suffered diabetic-related foot injuries before and after this alleged incident, and had been using the product without incident for years before suffering these particular injuries. Plaintiff’s doctor also testified that he could not testify that, to a reasonable degree of medical certainty, that the complained-of injuries were caused by the rub cream at all.

Botox Maker Hit with $200 Million Punitives Award, But Award Subject to State’s Cap

A federal court jury in Richmond, Virginia, recently ordered drugmaker Allergan, Inc. to pay a staggering $212 million to a 67-year old man who said he suffered brain damage as a result of receiving Botox injections to treat cramps and tremors in his hand in 2007. Ray v. Allergan, Inc., 3:10-cv-00136 (E.D. Va. April 28, 2011). The plaintiff reportedly alleged in his suit that Allergan failed to warn him that Botox injections could trigger an autoimmune reaction that could cause brain damage. He alleged that the injections caused severe medical complications which resulted in total disability and $643,800 in medical costs. He reportedly alleged in his complaint that the drug left him “frequently confused or disoriented,” and that Allergan did not sufficiently warn doctors or patients of the possibility over fear of losing sales.

Bloomberg.com reports that the jury’s award includes $12 million in compensatory damages, and an additional $200 million in punitive damages. Botox is Allergan’s top-selling drug, accounting for $1.42 billion in sales last year alone, which was 29 percent of the drugmaker’s revenue. Perhaps the jury thought that such huge numbers in revenue justified a huge punitive award. Interestingly, however, by Virginia statute, the punitive damages award will be capped at $350,000. The statute further provides that although the jury is not to be made aware of the cap, the trial court is to reduce the award in accordance with that law. Allergan’s spokeswoman has said the company has not yet decided whether to appeal the verdict, but if it does, attorneys for the plaintiff plan to “attack the constitutionality of the cap.”

This is not the first big award handed down against drugmaker Allergan. Last May, we reported here on a $15 million verdict in favor of an Oklahoma doctor who similarly alleged she suffered injury from Botox as a result of the maker’s failure to provide sufficient information regarding possible side effects. In that instance, Allergan vowed to appeal the verdict. It remains to be seen whether in this instance Allergan will take the benefit of Virginia’s punitive damages cap and pay, or whether it plans to similarly appeal the most recent verdict.

Federal Hazardous Substances Act Preempts Recovery on Failure to Warn Claim in Fire Death Case

Last month’s Mwesigwa v. DAP, Inc., —F.3d—, 2011 WL 1584760 (8th Cir., April 28, 2011) [PDF] centered around the warnings on a can of DAP Weldwood Gel Formula Contact Cement. The cement is a construction adhesive, and the can looks harmless enough:The warnings on the can, however, tell a different story and were cited extensively by the Court, which described the instructions as follows:

“WARNING! FLAMMABLE! VAPORS HARMFUL AND MAY CAUSE FLASH FIRE” and “BEFORE USE TURN OFF MAIN GAS VALVE.” The lid further instructs the user to keep the product away from heat, electrical sparks, and flame; to shut off pilot lights; to refrain from smoking; to prevent buildup of vapors by opening windows and doors; and to shut off stoves, heaters, and appliances. In addition, the lid depicts an open can with vapors emanating toward a cigarette labeled “smoking,” a gas valve labeled “gas,” a flame labeled “flame/heat,” and electrical volts labeled
“electricity/sparks.” Each of the four pictures contain a bold red line crossed through the black-and-white image.The can further includes “Precautionary measures for use, handling, storage and disposal”:Use in a well ventilated area. Provide fresh air such that chemical odors cannot be detected during use and while drying. Vapors are heavier than air and will collect in low areas. Check all low areas (basements, sumps, etc.) for vapor before entering. Vapor may ignite explosively. Keep away from heat, sparks, and flames. Do not smoke. Extinguish all flames and pilot lights. Turn off stoves, heaters, electric motors and other sources of ignition during use and until all vapor is gone. Keep container closed when not in use. Do not reuse the empty container. Do not use in areas where static electric sparks may be generated. Empty container may contain explosive vapors. Do not weld, cut or torch on or near this container. Store away from oxidizers and caustics. Wear gloves. Avoid skin contact. Wear eye protection with side shields.


Obviously, when not handled properly, this product can have grave consequences. The plaintiff’s decedent in this case unfortunately learned this fact first-hand. He purchased a can to install new baseboards in his house, and accidentally spilled some of it in his laundry room. When he went to wipe it up, the vapors ignited and caused a flash fire. Mr. Mwesigwa suffered extensive burns and died because of his injuries. His widow and children sued the manufacturer, DAP, for (1) wrongful death on theories of negligence, strict liability, and failure to warn; (2) for negligent misrepresentation; and (3) for violations of the Consumer Product Safety Act. The district court granted summary judgment in favor of DAP. The plaintiffs appealed the summary judgment on the wrongful death failure to warn claims.

DAP’s product is a hazardous substance sold for household use, and therefore, falls under the purview of the Federal hazardous Substances Act (FHSA). The FHSA requires such products to “bear adequate cautionary labels,” but, as the Court pointed out, the statute also preempts any failure to warn claims based on an argument that the label should have included particular warnings not required by the FHSA. Rather, the only claim that the plaintiffs could bring would be an allegation that the label did not comply with the FHSA.

The plaintiffs attempted to assert that the label did not comply with the FHSA because it failed to warn that one of the principal hazards of the cement was the risk of fire from an accidental spill, separate and apart from the general flammability. “Principal hazard” is a defined term under the law, meaning “the principal or primary hazard(s) associated with a hazardous substance.” The Court affirmed the grant of summary judgment as to this argument, since “the risk of fire from an accidental spilling of DAP cement is not a principal hazard that the FHSA requires the label to state affirmatively.”

The plaintiffs also argued that the label failed to state that, in the event of a spill, the product should not be wiped but absorbed with an inert absorbent. The Court also rejected this argument because “the FHSA does not require the DAP cement label to warn consumers against spreading the product after a spill as a precautionary measure.” The term “precautionary measures” is referred to under the statute as steps needing to be followed to avoid or minimize the “principal hazard” of the product.

The Court did a nice job summarizing its findings in this way: “The label complies with the FHSA because the principal hazard to be avoided is flammability, and the way to avoid that hazard is to remove all potential ignition sources.” Because the extensive labeling on the can of DAP complied with those requirements, summary judgment was affirmed as to the failure to warn claims.

Side note: DAP cement apparently also comes in a non-flammable version:

South Carolina Seeks Billions in Suit for Alleged Deceptive Marketing of Drug

A Spartanburg, South Carolina judge is set to decide how much money Janssen Pharmaceutica, Inc., a Johnson & Johnson subsidiary, should pay the state for what the jury found to be deceptive marketing by the company of its antipsychotic drug Risperdal. Last month, a jury agreed with attorneys for the State of South Carolina that the drug manufacturer had violated the state’s Unfair Trade Practices Act by sending misleading letters to approximately 7,200 South Carolina doctors downplaying the links between Risperdal and diabetes. South Carolina law provides for potential penalties of $5,000 for each offense, and since attorneys for the state argued that every single prescription, sample box or “Dear Doctor” letter written since the 1990s may constitute a violation of the law, the number could reach into the billions of dollars.

South Carolina’s suit is the fourth case of its kind to go to court. We previously reported here on a similar case tried in Louisiana. In that case, the jury awarded a $257.7 million verdict against the drugmaker. The jury found that the company had sent 7,604 “Dear Doctor” letters and made a total of 27,542 sales calls in which its sales representatives claimed Risperdal was safer than competing antipsychotic drugs such as Eli Lilly’s Zyprexa and AstraZeneca’s Seroquel. The Louisiana jury assessed penalties of $7,250 for each violation. Of the other two cases, the Pennsylvania case was dismissed in June, and another case in West Virginia was dropped in December.

As reported by TheState.com, Janssen has appealed the Louisiana verdict, although representatives have reportedly not yet decided whether they will do the same with this latest South Carolina jury verdict. That likely will depend on the dollar number reached by the Spartanburg County judge. We’ll continue to follow this case and report on Judge Couch’s ruling.

Manufacturer’s Duty to Warn Does Not Include Duty to Train Airline Pilots

In Glorvigen v. Cirrus Design Corp., 2011 WL 1466393 (Ct. App. Minn. April 19, 2011) [PDF], the Minnesota Court of Appeals considered how far a manufacturer’s duty to warn extends in the context of piloting an aircraft. In so doing, the court found that any such duty does not extend so far as to require the manufacturer to provide pilot training.

The facts were these: In 2001, Gary Prokop received his pilot’s license, training mostly on an aircraft manufactured by Cessna and logging most of his hours in that plane, as well. He had a visual-flight-rules certification, which meant that he was not permitted to fly when weather conditions might require the use of instruments. He subsequently completed all of the training he needed to take the test to be instrument-certified, but he had not yet taken the test.
In 2002, Prokop bought a new plane, a Cirrus SR22. He was provided a Pilot’s Operating Handbook and FAA Approved Airplane Flight Manual for that aircraft. Also included in the purchase price of the plane was two days of “transition training.” Not to be confused with classes on how to actually fly a plane, this “transition training” was designed simply to show a pilot how the new aircraft differed from the plane the purchasing pilot had previously flown. In this case, the transition training was supposed to have included training on the autopilot system of the Cirrus plane, a feature Prokop’s original Cessna lacked. In addition to this two days of transition training, Prokop purchased and attended an additional day and a half of training.
Following these training sessions, the instructor was supposed to grade the pilot on specific maneuvers on an evaluation sheet, leaving blank those maneuvers which had not been performed by the pilot. Following his training, Prokop received “S” for “satisfactory” on all maneuvers except one that involved the use of autopilot in switching between flying visually and flying with the use of instruments. That part of the evaluation form remained blank.
On January 18, 2003, after being cleared to fly, Prokop and a friend, Jamed Kosak, took off from Grand Rapids, Michigan on their way to St. Cloud for their sons’ hockey game. A few minutes later, the plane struck the ground and both men were killed in the accident. The trustees for the decedents’ next of kin sued Cirrus; the trustee for Kosak’s next of kin also sued Prokop’s estate. The Kosak complaint alleged that “Cirrus undertook a duty to provide Prokop with flight training, that Cirrus breached an implied warranty of merchantability by omitting a flight lesson [concerning switching from visual to instrument flying using autopilot], and that Prokop was negligent in piloting the aircraft.” The Prokop complaint alleged that Cirrus was negligent in the “designing, testing, manufacturing, sale, distribution, maintenance, warnings, pilot training, and instructions given regarding the aircraft.”
Much of the ensuing trial focused on the “transition training” – what specifically was taught by the instructor, whether or not that one training session in question was actually performed or not, and whether or not the crash would have happened if the training had been performed properly or differently. Following the trial, the jury awarded both trustees damages.
On appeal, however, the appellate court focused not on the adequacy of the transition training, but whether or not the manufacturer, Cirrus, owed a duty to train Prokop at all. The issue, as framed by the appeals court, was, “Does an airplane manufacturer’s duty to warn by providing adequate instructions for the safe use of its aircraft include a duty to provide pilot training?”
The appellate court concluded that it does not, for two reasons. The first focused on the purpose of the transition training, and whether or not it had anything to do with the manufacturer’s duty to warn:

Respondents assert that Cirrus offered transition training as a means of satisfying its duty to warn by providing adequate instructions for safe use. But the record indicates that the purpose of transition training was to assist Prokop to be proficient in the use of an unfamiliar aircraft. Although proficiency training undoubtedly promoted the safe use of the SR22, we find no support in the law for respondents’ proposition that Currus’s duty to warn included an obligation to train Prokop to proficiently pilot the SR22–which is the crux of respondents’ claims.

Second, the court focused on the fact that at the time he purchased the aircraft, Cirrus provided Prokop with two sets of written instructions: the Pilot’s Operating Handbook and FAA Approved Airplane Flight Manual for the Cirrus Design SR22.

Therefore, the court held, “any liability based on appellant’s failure to provide adequate transition training cannot be sustained under a product-liability theory.”

This is the right decision for a few reasons. First, the transition training was not mandatory, nor was it a prerequisite for buying the plane from Cirrus in the first place. If Prokop had never availed himself of the training offered, then the adequacy of the training would never have been put under the microscope. Secondly, there was never any allegation that the training Prokop did receive was performed negligently. And, finally, the liability waves from a finding that Cirrus did owe a duty to train Prokop could have turned into tidal waves, leading to de facto requirements that chainsaw manufacturers provide training to every person who buys their product from a Home Depot, car manufacturers give driving lessons, ad infinitum. But for now, the floodgates remain closed on this issue, thanks to the Minnesota Court of Appeals.

Ear Candler Presents Issue of Fact

“Your Honor, don’t let stupidity create an issue of fact.”

Surely, someone, somewhere has uttered this sentence. Perhaps counsel for one of the defendants in Danaher v. Wild Oats Markets, Inc., No. 08-22930-DJW, 2011 WL 903878 (D. Kan. March 14, 2011). In a case with multiple defendants, Wild Oats Markets could not reach summary judgment on the plaintiff’s products liability claims related to ear candling. I have to admit that I was gainfully employed in the early 2000s and had not heard of the ear candling fad. Prior to reading the remainder of the post, I would recommend that you visit the Wikipedia page on ear candling, which contains such unintentionally humorous sentences as “According to medical researchers, [ear candling] is both dangerous and ineffective.”

The immediate takeaway from the case is that retailers should honestly consider whether carrying certain products is worth the risk of litigation. The basic facts of the case are as follows: Plaintiff buys an ear candle at Wild Oats in 2003. For some reason, by 2006, she still possesses the ear candle and decides that she would like to use it. She calls Wild Oats for a recommendation of an ear candler, they refer her to another store, and she eventually finds a person to perform the ear candling procedure, during which, Plaintiff inexplicably suffers a burn to her ear drum, when wax from the candle rolls into her ear. Although the manufacturer promulgated warnings about ear candles in the packaging, Plaintiff did not remember any warnings. Without reciting the entirety of the case, Plaintiff was able to survive a motion for summary judgment on warning defect and breach of implied warranty.

We may be somewhat defendant-friendly here at the blog, so let me offer potential defendants some advice. Do not sell devices designed to combust in the middle ear. It is not worth the $2 you will generate in revenue. Sell something else. In all seriousness, this product is at the very least some homeopathic harmlessness, but there should be some thought (foreseeable use) about the economics of the business. Is it reasonable to anticipate someone being injured from using the product in a reasonable way? If so, how much money can you make, taking into account the likely cost of insurance/litigation? It’s hard for me to believe that the manufacturer/distributor/retailer of the candle sat down with a lawyer at the inception of the business and the selling of this absurdity was determined to be an economically rational choice. But lawyers are good at telling entrepreneurs why things won’t work, and, if all entrepreneurs listened, we would not have such grand creations as the ear candle, Ford Pinto, or the Hindenburg. Today’s lesson is to examine the inventory that you sell for $10 or less. It might not be worth it.

Hall v. Sunjoy Industries and Kmart: How NOT to litigate a products liability case

Growing up, we here at Abnormal Use were told more than once that one can learn more from failures than successes. If that’s the case, the perpetrators of one recent Florida lawsuit may have learned a great deal recently. See Hall v. Sunjoy Indus. Group Inc., No. 8:09-cv-2032-T-30MAP, 2011 WL 589830 (M.D. Fla. Feb. 18, 2011).

The facts are simple. Plaintiff Dorothy Hall sat on a patio chair displayed in the garden center at her local Kmart. The chair collapsed, causing her to allegedly suffer “various injuries, including a painful back condition.” Hall and her husband sued Kmart as the retailer, and Sunjoy as the alleged manufacturer on theories of strict liability for a manufacturing defect, negligence for failing to inspect and test the chair, and negligent failure to warn. They also sued Kmart on a fourth count, res ipsa loquitur for displaying the chair. Both defendants filed summary judgment motions on all counts, as well as a motion to dismiss based on the plaintiffs’ dishonesty during their depositions. The plaintiffs also filed a motion to establish a rebuttable presumption of negligence based on the fact that the chair was not preserved.

Here are the lessons that we can take from this case:

Lesson #1: Make Sure You Sue the Correct Manufacturer. This may be obvious advice, but these plaintiffs could have used it before facing the court on this issue. Apparently, Sunjoy was not the chair manufacturer. In fact, the record was undisputed as to that fact. In order to avoid Sunjoy’s motion for summary judgment, the plaintiffs filed a motion to voluntarily dismiss Sunjoy without prejudice. The court wasn’t buying their trick and remarked:

When the parties have expended considerable resources to fully develop a case, a court may infer that a plaintiff seeks a voluntary dismissal solely to avoid a pending motion for summary judgment.

In those cases, it is appropriate to do as this court did: deny the motion for voluntary dismissal without prejudice and grant the summary judgment motion.

Lesson #2: Hire the Necessary Experts. The plaintiffs’ first count against both defendants was a strict liability claim for a manufacturing defect. Step one in building such a case is to establish that there is, in fact, a defect. Expert testimony is necessary on this issue if the defect is latent, i.e., not obvious, as in this case. In fact, the plaintiffs needed to establish, through expert testimony, that the chair malfunctioned when it collapsed. While this may appear to be an easy question because the chair in fact collapsed, the court explained that “While the chair may have broken after Plaintiff sat on it, this does not automatically mean the chair ‘malfunctioned.'” The plaintiffs also sacrificed their design defect claim by failing to hire an expert who could provide expert testimony about whether or not testing or an inspection could have revealed a design defect. Finally, the plaintiffs’ negligent failure to warn claim failed because of a lack of expert testimony. “A claim that a warning is necessary and that the failure to warn rendered a product unreasonably dangerous and defective requires a warnings expert,” the court noted.

Lesson #3: Vet Your Clients Properly. The plaintiffs also filed a claim of res ipsa against Kmart. The court granted summary judgment on this claim for two reasons: First, the plaintiffs could not prove that the chair was in the store’s exclusive control because it was in the garden department where people, like Ms. Hall, could sit in it. Second, the court held that the plaintiffs had not presented “any evidence that the reason for the chair’s collapse was some act of the Defendants as opposed to Ms. Hall’s excessive weight” of over 350 lbs.

Even more on this point. The court’s opinion in this case included several footnotes alluding to the fact that both Mr. and Mrs. Hall appear to have perjured themselves, in either their depositions or in affidavits, or both. Not only is that a problem for them, but it could be a problem for their lawyers. It appears that the court did not find the legal theories any more admirable than the Plaintiffs, as evidenced by the reference to the Rule 11 motion which was filed by Sunjoy, based on the fact that Sunjoy was not the manufacturer of the chair.

Lesson #4: Keep the Evidence. The plaintiffs also filed a motion asking the court to grant them a rebuttable presumption of negligence based on the fact that Kmart didn’t preserve the chair at issue in the case even after a preservation letter was sent. Apparently, Kmart kept it initially, but discarded it after seven months, thinking the case was “old.” Because the court found no evidence of bad faith by Kmart, it denied the plaintiffs’ motion. Still, this is one of the cardinal rules of defending a products case: keep track of the evidence, or it may lead to a presumption of negligence later.

The McDonald’s Broken Toilet Case

Plaintiffs certainly have high expectations for what McDonald’s should “know” in civil litigation these days. Back in the early 1990s, in the infamous Stella Liebeck McDonald’s hot coffee case, the plaintiff asserted that the fast food chain should have known that the beverage could cause serious harm to a person who did not appreciate the dangers that steaming hot drinks perched in laps could inflict. Now, just last week, an Illinois woman sued McDonald’s based on her claim that the restaurant should have known that a toilet located in its restroom was dangerous.

The Chicago Sun-Times reports that Plaintiff Cherry Hardie has filed a lawsuit against a Chicago-area McDonald’s after allegedly suffering injuries to her left arm and shoulder after the toilet upon which she sat broke underneath her. She has asked for damages exceeding $30,000.00 and claims to have suffered a “shock to her nervous system” and become disabled.

Now, if we were the lawyers taking this Plaintiff’s deposition, we would have a few interesting questions for her. First, we might ask why she thought it was okay to sit down in the first place, given the cleanliness of most fast food chain restaurant restrooms we’ve seen of late. Assumption of the risk, indeed. Next, we might ask what kind of notice she believed the restaurant may have had that a solid piece of commercial-grade porcelain might collapse. Finally, since Ms. Hardie claims she suffered severe, disabling personal injuries as a result of the mishap, we would ask about any prior personal injury suits. In fact, during our cursory online search for a copy of her complaint in this matter, we stumbled across this prior suit. Is it possible that the pro se Cherry Hardie in that prior Illinois lawsuit is the same woman now claiming to be victimized by the McDonald’s toilet? And what injuries was she claiming in this prior suit?

Cynical? Perhaps. But an important issue to explore nonetheless.

Marketing vs. The Market: A Debate About Bilingual Warnings

A few weeks ago, we commented upon the recent Florida case of Farias v. Mr. Heater, Inc., — F. Supp .2d —, No. 09-CIV-23789, 2010 WL 4814660 (S.D. Fla. Nov. 19, 2010) to start a discussion on bilingual warnings and what, if any, duty a manufacturer has to provide them. In so doing, we questioned what, if any, responsibility a manufacturer should have to provide bilingual warnings here in the United States, since the country has no official language and prides itself on its rich cultural and linguistic diversity.

Friend of the blog and John Marshall Law School professor Alberto Bernabe recently responded to our post on his own blog, and he made a number of interesting points. Just as the Farias court did, Professor Bernabe focused on the issue of marketing. The Farias court held that the heater manufacturers had no duty to provide a warning in Spanish in part because the heaters had not been marketed directly to a Spanish-speaking population, distinguishing the case factually from an earlier decision in a Florida federal court, Stanley Indus., Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992), in which the product had been directly marketed to a Spanish-speaking population.

Professor Bernabe asked the following question in response to the Farias decision and our post:

If we are ready to say that we should recognize a duty if the product is marketed to a specific audience, is it that much of a leap to say we should recognize a duty if the product is marketed in a particular market. By this I mean, there are specific areas in this country that are known to be centers of foreign populations. And if there is a great example of this it is Miami! Let’s face it, Miami is a bilingual city. A large portion of the city is known as “Little Havana.” Everyone knows this. So is it really that burdensome to suggest that labeling should be different for that market?

His question, therefore, is whether the concept of duty in this situation should be based on marketing, or just market. As Professor Bernabe himself appears to acknowledge, this would absolutely extend the concept of duty beyond reasonable limits. Miami is the easy case – there are parts of the city in which road signs are written only in Spanish.

But what about places like New York City, where huge populations of non-English speakers are concentrated in particular areas, but also run right into each other? For years the areas of the city known as “Little Italy” and “Chinatown” have been separated by little more than about a half a city block. There is also a huge Puerto Rican population in the city, along with countless other pockets of peoples of different nationalities and language in that city.
If we were to focus on the “market” itself, rather than the “marketing,” then manufacturers that sell any product in New York City would have to hire the United Nations to translate warnings into virtually every language spoken on the earth. Any manufacturer who bought advertising time on a national basis on the networks would have similar problems.

We’re not suggesting there is an easy solution. While we think there needs to be a reasonable limit to the duty imposed on manufacturers, it would also be unreasonable for us to say that manufacturers should be able to stick their collective heads in the sand and ignore the fact that there are people in this country who can’t read or understand English. For now, the marketing issue seems to be the best we have.

(Back in November, we interviewed Professor Bernabe as a part of our Abnormal Interviews series. You can read that interview here.).