Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn

Liability for a manufacturer\u27s failure to warn of product-related risks is a well-established feature of modern products liability law. Yet many serious doctrinal and conceptual problems underlie these claims. Professors Henderson and Twerski explore these problems and argue that failure-to-warn jurisprudence is confused, perhaps irreparably, and that this confusion often results in the imposition of excessive liability on manufacturers. The authors begin by exposing basic errors resulting from courts\u27 confusion over whether to apply a strict liability or a negligence standard of care in failure-to-warn cases. Having determined that negligence is the appropriate standard, they then examine more substantial and intractable difficulties in failure-to-warn litigation, particularly the inability of juries to consider the marginal costs and benefits of adding warnings to those already provided. The authors conclude that fairness and efficiency goals of products liability law would be better served if judges were to take a more active role in screening out marginal failure-to-warn claims