Morris Polich & Purdy LLP
In ruling, the Court of Appeals confirmed that a manufacturer is not under a duty to warn of every report of a possible risk regarding its product because warning of every hint of danger would "dilute the force of any specific warning given." Although the plaintiffs relied on peer reviewed articles to support their claim that it was "known or knowable" that stun guns could cause fatalities resulting from metabolic acidosis, the court determined that the literature did not present a triable issue with respect to notice because it failed to establish a causal link between stun guns and metabolic acidosis to put the defendant on notice. The court found that the literature, at best, consisted of conjecture and unproven hypothesis. As such, the risk of metabolic acidosis was not "known or knowable" in light of the prevailing best scientific and medical knowledge. Consequently, the defendant had no duty to warn of the risk of metabolic acidosis. Product liability defendants can cite this decision when challenging failure to warn claims based on the state of the art defense. Even in cases where the plaintiff relies on peer reviewed materials that purport to establish a causal link between the product and the injury, the Rosa decision concludes that the evidence must consist of tested theories, not unproven hypotheses or mere conjecture. To view the complete article on this case, please click HERE. Also, you may view the complete United States Court of Appeals decision HERE. If you have any questions or comments, please feel free to contact me, or alternatively, Matthew Marshall (213.417.5106 or mmarshall@mpplaw.com). Sincerely, Dwayne A. Anderson Morris Polich & Purdy LLP
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