Product Liability Claims and Proper Labeling

By Nicholas E. Subashi
Subashi, Wildermuth & Dinkler

The mini-trampoline that failed to warn of the danger of falling off; the lawn mower chute that failed to warn the user of a cutting blade; the chain saw with the grease and dirt obscuring the warning about the risk of “kick back;” and the bottle of insecticide with the label which had fallen off or which had been removed. What do the manufacturers of these products have in common as they begin to defend the product liability lawsuits brought against them by injured consumers? The answer: They all wish that they had an inexpensive method of permanently affixing warning labels to their products. Warning labels that cannot fall off, cannot be removed and cannot be obliterated.

The fact is that today, current labeling methods are insufficient. Pressure sensitive adhesive labels do not permanently fuse to plastics. And screening a warning onto a plastic product can wear or be scratched off over time. Even the FDA’s Anti-Counterfeiting Task Force has recognized the need for improved labeling.

A product liability claim is a civil lawsuit to recover compensatory damages from a manufacturer for death and physical injury arising from, among other things, inadequate, insufficient, confusing or misleading warnings associated with the manufacturer’s product. Under the law of most states, a product is defective due to inadequate warning or instruction if the manufacturer failed to provide warnings or instructions that a manufacturer exercising reasonable care would have provided concerning the risk. In other words, even if the product has been properly designed and manufactured, if the manufacturer did not properly provide warnings to the consumer, a product liability lawsuit can still be asserted.

Think you’re an unlikely target for such a lawsuit? Think again. In Marcon v. Kmart Corp., 573 N.W.2d 728 (Minn. App. 1998), a 12 year-old boy fractured his neck and was rendered a quadriplegic as a result of a sledding accident. The minor plaintiff was riding a plastic sled on his knees when he hit a bump, lost control, was thrown forward, and landed face down in the snow. The plaintiffs brought suit against the manufacturer, Paris Manufacturing Corp., and the retailer, Kmart. The jury returned a verdict against the manufacturer in excess of $7 million. The jury found that the sled was defective because it “failed to provide adequate warnings or instructions for safe use.” In short, because the plastic sled failed to warn against riding the sled on one’s knees, it was considered a defective product.

In addition to protecting against product liability lawsuits, proper warnings are required by a host of federal and state laws. For example, the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”); the Federal Hazardous Substances Act; and the Medical Device Amendments to the Food, Drug and Cosmetics Act and the regulations promulgated pursuant to them all have very specific requirements for warnings and labeling.

Unfortunately, many of the traditional labeling methods fall short of permanently affixing appropriate and conspicuous warning labels. Too often these labels peel off, fade or become unreadable due to exposure to such forces as oil, gasoline or mechanical wear. According to Mark McCarthy, a partner with the Cleveland law firm of Tucker & Ellis and a specialist in defending manufacturers from product liability actions, “User safety is a huge concern. We want everyone who buys products to have a completely safe experience. That’s why it is so important that safety warnings and other information remain legible and easy to read for the life of a product. You can’t always get that with ordinary labels that peel, scratch, or tear. And messages molded into plastic without contrasting color aren’t very readable.”

What is needed, then, is a method of permanently integrating conspicuous and easily read safety messages into a product—as opposed to gluing on a more temporary label. Such capability would become an integral part of any manufacturer’s risk management program. For, as the old saying goes, “the best defense to any lawsuit, is not to get sued in the first place.”

This article was reprinted with permission by the author, attorney Nicholas E. Subashi. Copyright 2009 Subashi, Wildermuth & Dinkler. All Rights Reserved.

EDITOR’S NOTE: One potential solution to the problem presented here by Mr. Subashi is in-mold labeling. For more information, see the Fall 2008 edition of Insights for Manufacturers and read “Manufacturers Get ‘In’ on In-Mold Labeling.”