Post-Sale Duty to Warn and the Subsequent Remedial Measures Rule
Posted by John Sedgewick - 06/03/10 at 09:03 pmA Pennsylvania jury has returned a verdict of $13.5 million in a case involving the death of a child caused by a defective electric fan motor.
The motor, which was sold as part of an inexpensive household fan, overheated and caused a fire. Several years after the fan was made and sold, Lasko Products, Inc., the seller, discovered the defect, and learned that the defect also was present in thousands of similar fans. In 2004, Lasko changed the design to eliminate the defect from some of its fans, but did not alert the public or recall the defective fans. The child died in 2004, and Lasko subsequently initiated a recall of the defeective fans.
If this case had been filed in Maine, the plaintiff might have been blocked from introducing the evidence of the 2004 re-design based on the “subsequent remedial measures” rule. That rule is intended to encourage defendants to improve dangerous situations by assuring them that safety improvements made after discovery of a problem or after an injury will not be introduced into evidence to prove that the product was defective to begin with. This rule is based on the public policy decision that it is better to encourage defendants to remedy defects than to encourage them to deny that there is a problem.
One way to avoid the obviously unfair impact of that rule on injured people may be to include a “post-sale duty to warn” count in the case. While in some states there is no duty to warn users about defects or “repairs” that become known after a product is sold, judges in Maine have rejected that position, at least in one case, and have held manufacturers to a higher standard.
If there is evidence of a post-sale design improvement, and if no recall or warning has been issued, plaintiff’s attorneys should include a post-sale duty to warn count. This will provide a basis for discovery on the re-design/modification, what warnings and notice of defect were provided to the public, and whether proper notice to the public, or a product recall, would have prevented the injury. If the facts support the argument, then the trial court should allow the evidence of “subsequent remedial measures.” To do otherwise would be to prevent the plaintiff from proving his or her case. The public policy of protecting consumers injured by defective products, particularly those known to the defendant to be defective, should outweigh the defendant’s interest in hiding evidence of its subsequent product improvement.
