Contact an Abbott Baby Formula Recall Lawyer today about an Abbott Baby Formula Recall Lawsuit
The vast majority of product liability claims, particularly in mass tort cases, are brought because the product suffered from some type of manufacturing or design defect, and in many cases, there has been a voluntary recall or a recall ordered by the U.S. Food & Drug Administration (FDA). The types of defective product cases typically asserting a design or manufacturing defects include, among others: defective medical devices; automobile defects; dangerous or defective pharmaceutical drugs, and toxic or environmental torts.
However, another basis for liability, and one asserted in the Abbott Baby Formula Recall Lawsuit, is a claim for failure to warn, also referred to as a marketing or warning defect. A failure to warn claim does not indicate any physical flaws or defects in the product; rather, a plaintiff bringing a failure to warn claim alleges that the manufacturer was negligent in warning consumers about the dangers of using the product.
Earlier we discussed everything you need to know about the Abbott Baby Formula Recall Lawsuit. Below we discuss a failure to warn claim, its elements, and common defenses to a failure to warn claim. If you are a plaintiff in the Abbott Recalled Baby Formula cases, read on to understand what your attorneys will have to prove to win your case and get you the compensation you deserve.
What Is a Failure to Warn Products Liability Claim?
As noted above, the vast majority of products liability cases involve a design or manufacturing defect where a plaintiff is asserting that a physical defect exists. A failure to warn claim, on the other hand, does not claim any physical defect exist with the product. Instead, a failure to warn claim asserts the defendant manufacturer did not supply adequate warnings or instructions on how to use the product safely, and the plaintiff was injured due to the failure to disclose the risk.
For example, in the Abbott Baby Formula Recall Lawsuit, plaintiffs do not assert a physical defect with the powered baby formula. Rather they assert they were injured as a result of the undisclosed risk of consuming baby formula that was environmentally contaminated with Cronobacter sakazakii and Salmonella Newport. If plaintiffs prevail on their failure to warn claim, they are entitled to recover both economic and non-economic damages, pain and suffering, medical costs, lost wages, and loss of enjoyment of life.
Warning labels may not always be visible on a product. The manufacturer might put a warning on the box or in the instructions. A warning may not be sufficient to protect a manufacturer from liability if the user will not see it. For example, a manufacturer might have to put a warning directly on a product if people who would face the risk will not see it on the box or in the instructions.
Warnings should be expressed in language that the average individual understands, even if the product is complex and technical. Thus, Plaintiffs in the Recalled Baby Formula cases will argue and attempt to prove that any warning provided was not legally sufficient because it did not disclose the risks of a helpless infant consuming baby formula environmentally contaminated with Cronobacter sakazakii and Salmonella Newport.
Defenses to a Failure to Warn Claim
The Danger Was Evident
One defense to a failure to warn claim is that the danger was evident. While the law may vary in jurisdictions, one common rule is that an obvious risk does not require a warning. However, if an ordinary person using common sense would not be able to recognize the risk, the defense would not be available. For example, the manufacturer of toothpaste that caused headaches, could not rely on this defense since an ordinary person would not expect toothpaste to cause headaches.
Obviously, this defense will be hard to assert in the Abbott Recalled Baby Formula cases, because the no ordinary person would every expect, nor should they, for their infant to get Cronobacter sakazakii and Salmonella Newport from their baby formula.
The Misuse Was Not Foreseeable
A defendant manufacturer may also argue the plaintiff did not use the product in a reasonably foreseeable way. If someone uses a product in an unpredictable manner, then manufacturer will not be liable for a failure to warn. For example, if someone buys a bicycle, but instead of ridding it, turns it up on its handlebars and tries to juggle while balancing on the wheels, a manufacturer will not be liable because it did not warn about a risk that it obviously could not have reasonably foreseen.
However, a plaintiff does not have to use a product exactly as it was intended by the manufacturer, and a manufacturer’s lack of warning for a predictable misuse may still be liable if the risk of was not obvious. This obviously will not be at issue in the baby formula recall cases since the product was being used exactly as intended.
A manufacturer may try to avoid liability by arguing it had no knowledge about the risk it failed to provide warnings about. But, to state a claim for relief, actual knowledge is not required. However, the test is whether the manufacturer reasonably should have known about the risk. If the answer is yes, then the manufacturer may be held liable. In other words, a defendant may be liable for a risk it should have known about, even if the defendant possessed no actual knowledge of the risk.
This too will be a hard argument for defendants to make an Abbott Baby Formula Recall Lawsuit, as it was clear defendant had knowledge from the FDA to clean up the filthy facility causing the contaminated baby formula, but chose not to.
An Abbott Baby Formula Recall Lawyer will argue the defendant is liable for failure to warn and should be able to prove that any warning provided was not legally sufficient. Furthermore, the defenses to a failure to warn, misuse of the product and that the danger was evident, do not seem like viable defenses, nor should the defendant be able to escape liability based on lack of knowledge.
Timothy L. Miles, Esq.
Timothy L. Miles is a nationally recognized shareholder rights attorney raised in Nashville, Tennessee. Mr. Miles was recentely selected by Martindale-Hubbell® and ALM as a 2022 Top Ranked Lawyer, 2022 Top Rated Litigator. and a 2022 Elite Lawyer of the South. Mr. Miles also maintains the AV Preeminent Rating by Martindale-Hubbell®, their highest rating for both legal ability and ethics. Mr. Miles is a member of the prestigious Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association, a superb rated attorney by Avvo, a recipient of the Lifetime Achievement Award by Premier Lawyers of America (2019) and recognized as a Distinguished Lawyer, Recognizing Excellence in Securities Law, by Lawyers of Distinction (2019). Mr. Miles has published over sixty articles on various issues of the law, including class actions, whistleblower cases, products liability, and more.
Timothy L. Miles
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