Legally Speaking: Don't Say I Didn't Warn You

John G. Browning May 6, 2009, 9:42am

Every year, an organization called the Foundation for Fair Civil Justice attracts international media attention with its Wacky Warning Label Contest.

Now in its 12th year, the contest tries to convey how lawsuits – and perhaps more accurately the fear of lawsuits – drives companies to spend millions on warnings.

As contest creator Bob Dorigo Jones of Novi, Mich., explains, "We want to expose how the American civil justice system is out of whack, and this contest allows us to use humor as a hook to start an important debate over how much consumers and families spend because of frivolous lawsuits, how much more they spend on everything from medicine to automobiles… In today's economy, wacky warning labels demonstrate the tax we all pay in lawsuit abuse."

This year's winner has a Texas connection. Convenient Sports International of Wylie markets a portable toilet seat for hunters and other outdoorsmen called "The Off-Road Commode."

The camouflaged toilet seat conveniently attaches to a vehicle's trailer hitch. The warning label featured on this product reads "Not for use on moving vehicles."

As obvious as it may seem to most of us that when movements of one kind are your priority, your vehicle should not be moving, the good folks at Convenient Sports International beg to differ.

According to Mike Willis, the company's president of national sales, the firm added the warning roughly two years ago after learning that at least one consumer had modified their product and was driving around with it on the back of his truck.

Steve Shiflett of Hampton, Ga., submitted the label attached to the portable toilet seat and won $500 for his trouble. Perhaps if he had come up with a snappy warning slogan – say, something like "Stop, Then Go" – he could've made even more.

This year, the contest's runner-up was a wart removal product's instruction guide that read "Do not use if you cannot see clearly to read the information in the information booklet."

I hate to point out the obvious, but that hardly seems like a warning that's calculated to reach its intended audience. After all, if you can't see clearly enough to read the information in the product's instruction guide, odds are pretty slim that you'll be able to read that warning.

Other warning labels that received recognition included the cautionary statement on the underside of a cereal bowl that reads "Always use this product with adult supervision," and a bag of livestock castration rings bearing the admonition "for animal use only."

My personal favorite was the warning on a small (1 inch by 4 inch) LCD panel stating "Do not eat the LCD panel;" has there really been a rash of people eating LCD panels?

Aside from this contest, we get reminders every day of unnecessary warnings that demonstrate just how "over warned" we've become as a society.

From the personal watercraft manual that states "Never use a lit match or open flame to check fuel level" to the candle from Target that helpfully instructs "To extinguish candle, blow out flame" to the milk container in the United Kingdom that bears the reminder "Contains Milk" (just in case you're both lactose intolerant and incredibly stupid), we have chosen information overload and redundancy over holding out hope for some vestige of personal responsibility.

The other day, I saw a commercial for a drug that is prescribed to reduce the size of enlarged prostates. It features a warning that women should not take it, for various reasons; none of the reasons given, however, was the fact that women don't have prostates in the first place!

And in New York City, the City Council recently voted to require warning signs on playground equipment to advise children that surfaces may become hot due to sunlight.

As Geoffrey Croft, president of New York City Park Advocates, fumed, "This bill is basically useless as written. The city is more interested in their liability than in protecting their children." Let's face it – if your kid is old enough to read, he's old enough to know that the sun makes things hot.

By over-warning the consuming public out of a fear of litigation, companies have actually given the plaintiff's personal injury lawyers more ammunition. Burying those warnings that may be meaningful or at least not obvious amidst all the boilerplate cautionary statements has inured consumers to warning labels and resulted in people tuning them out.

During the Vioxx litigation, prominent trial lawyer Mark Lanier used this to his advantage, accusing pharmaceutical giant Merck of providing too many warnings, and burying the data about the medication's cardiovascular risk amid a blizzard of other cautions.

I once deposed an expert witness for the plaintiff in a product liability case, a well-credentialed professor of "human factors" at a large university, who had all sorts of opinions about the sufficiency of the warnings that accompanied my client's product.

For a couple of hours, he and I went back and forth, as he attempted to deftly parry each of my verbal thrusts about what warnings the injured plaintiff should have observed and heeded if he had just paid attention and used a little common sense.

A manufacturer can't rely on a consumer to watch out for himself or to exercise common sense, he insisted.

Finally, I asked the good professor about the sufficiency and effectiveness of an apparently very clear warning contained in the product owner's manual. It was, he agreed, clearly stated and effectively communicated the risk in question.

The only problem, he said, was that it was prominently featured in the owner's manual, because "no one ever reads the owner's manual. That's just common sense."

So common sense should count after all, eh, professor?


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