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“Warning Will Robinson, Warning”! A Primer in Warnings

Date: 6/4/12

Some of you may remember that warning from the 1960’s/ 1970’s television show Lost in Space.  Looking back at that phrase I now realize how inadequate Robot’s warnings to young Will were under today’s standards.  Although always consistent, what the heck was Robot warning about?  Regardless of the danger, Robot’s warnings were always the same, delivered in the same tone, with the same verbage.  Over all the years of racing home from elementary school and sitting down in front of the television with my after school snack,  Robot never updated his warning.  Although a futuristic robot, Robot’s warnings were antiquated.  Can the same be said about your warnings?  Do your warnings and instructions provide the consumer with important and pertinent information?  Are you using the most up to date method of warning?  If you use a variety of warnings for one product are they consistent?  To whom are you providing the warning?  I guarantee Robot did not take any of these issues into consideration, and look what happened to him!

Update your warnings.
As apparently obvious this instruction might be, I cannot tell you how many times over the years it has taken a lawsuit to awaken a client as to their outdated warnings.  If you change your product, check your warnings and instructions.  Do they address any new potential dangers?  Do they have irrelevant information?  If you have heard of issues with products similar to yours, make sure your warnings address those issues.  It is very uncomfortable to sit in a deposition and get questioned on why your competitor included specific warnings about known dangers and instructions and you did not.

What information are you providing to the consumer and is it adequate?
ANSI Z535.6-2011 “Product Safety Information in Product Manuals, Instructions, and Other Collateral Materials is an excellent resource.  Although the standards are voluntary, in many states they are admissible as the state of the art.  The standards are intended to “identify and warn against specific hazards and for other accident prevention purposes.”  (ANSI Z535.6-2011 Foreword.)  They set forth an easy to understand warning selection process dependent on the severity of the danger and are easily accessible on-line.  The ANSI committee is also comprised of some of the brightest people working in the product manufacturing arena.

Are you using the most up to date method of warnings and instructions?
In this day of modern technology, the consumer can access your product manuals and warnings on most electronic devices.  Consumers expect this accessibility.  They also expect your inbox warnings to be progressive.  Try a computer animation.  They are easy to update and easy to modify to different products while maintaining a consistency in your messaging.   Whatever methods you use to warn, the messages must be consistent with each other.

Who are you warning and instructing?
As a manufacturer you may sell to distributors, retailers, or directly to the public consumer, and your duties relative to warnings may be dependent on whom you are selling to.   For example, if you are a seller of a bulk product that could be used in recreational endeavors ranging from mountain climbing to sailing most states will not find that you owe a duty to the ultimate user, but they may find that you owe a duty to adequately warn your distributor.  On the other hand, in many situations you may be held to a standard of care requiring you to sufficiently warn and instruct the ultimate user so they are well informed as to proper use and fitting of a particular product such that it can be reasonably safely used.  Whether selling to a distributor or retailer a technical manual should be supplied.  Often this is accomplished electronically.  These innovative ways of delivering information are much easier to follow and more impactful than a writing.  Obviously, if you have requirements you wish the distributor or retailer to follow it is important to include pertinent information as to assembly, maintenance, adjustment, fitting, and inspection.  Cover this information in clear concise language. 

Ultimately, a duty to warn is determined as a matter of law, and you may be held to a different duty depending on what you are selling and to whom.

What should the Warning and Instructions to the ultimate user include?
Warnings and Instructions should include: the intended use, proper fitting, recommended maintenance, usage limitations, and cautionary and warning language as to problems that your company has learned with the product.  While the litany of risks need not be as complete as for example, informed consent forms used in conjunction with surgery, they should nonetheless contain a reasonably complete recitation of the instructions for usage, and warnings as to the risks the product's use entails.  Appropriate disclaimer language describing warranty information and information as to limitations you are placing on the product should be included.  It is a good idea to run the proofs by your risk manager, in house counsel, or outside counsel for final approval.  Although tempting, your marketing department is not the department that should have the final say in this matter.

In the event there is assembly involved or fitting, the warnings and instructions should cover these aspects as well.  Assembly instructions should be easy to follow and unambiguous.  Instructions pertaining to fitting should be clear and easy to follow.  Remember you are more familiar with your product than anyone else.

Conclusion
Clearly, doing a comprehensive job on your warnings and instructions will pay dividends in preventing accidents in the first place, and put your company in a stronger position to defend itself should an accident occur.  Remember these materials may ultimately be an exhibit in a trial and as such proactively generating the best warnings and instructions you can is work well worth doing. 

In closing, I recall the time I deposed a plaintiff in a lawsuit in which a warning was at issue.  I asked the simple question “Didn’t you see the warning?”  To which he responded, “No one told me I had to read the warning!”  So, despite your best efforts to update, be consistent, be modern, and warn the correct audience, Robot’s simple message of “Warning Will Robinson Warning” may be the most persuasive one yet.  After all, Will Robinson never was injured in any Lost in Space episode I saw!

By: Kimberly Viergever- kim@rietzlawfirm.com - Rietz Law Firm

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