It is well established principle that a manufacturer has a duty to givewarning of possible risks involved in using its product. The failure of amanufacturer to give an appropriate warning has generated considerablelitigation. In recent years there have been significant changes in the legalstandard governing Massachusetts product liability "failure to warn"cases. This newsletter identifies the recent changes and reviews their impact ona manufacturer's continuing "post sale" duty to warn of dangers and toadvise purchasers of product improvements.

Old Failure to Warn Standard: Historically,Massachusetts applied what was referred to as "hindsight" analysis infailure to warn cases. Under this approach, in addition to being heldresponsible for failure to warn of known product dangers, manufacturers werealso held responsible for risks that were not known at the time of sale, as wellas risks that could not reasonably have been known at the time of sale. This wasa harsh standard which imposed almost "true strict liability" againstmanufacturers. The manufacturer's actual knowledge, and the reasonableness ofits actions in light of that knowledge, was irrelevant.

New GeneralStandard for Failure To Warn Claims: In 1998 Massachusetts abandoned the"hindsight" analysis and adopted a "state of the art"analysis. The "state of the art" analysis is less burdensome onmanufacturers. "Hindsight" knowledge is no longer imputed to amanufacturer. A manufacturer will no longer be held liable under an impliedwarranty of merchantability for failure to warn or provide instructions aboutrisks that were not reasonably foreseeable at the time of sale or could not havebeen discovered by way of reasonable testing prior to marketing a product. Amanufacturer will, however, be held to the standard of knowledge of an expert inthe appropriate field, and will remain subject to a continuing duty to warn(at least purchasers) of risks discovered following the sale of the product atissue.

Under this new approach, Massachusetts failure to warn cases willbe resolved by considering only what the manufacturer knew about the product atthe time of sale, or what it reasonably could have discovered at the time ofsale. The "state of the art" standard (also known as the "expertstandard") presumes that the manufacturer will conduct"reasonable" testing of the product to discover risks and risk-avoidancealternatives prior to marketing a product. What is "reasonable"testing under a given set of circumstances is a fact-sensitive inquiry and willvary from case to case.

The benefit of manufacturers under this newstandard is that they may now demonstrate the reasonableness of their actionsand warnings as a defense against a failure to warn claim. This was not a viabledefense under the old "hindsight" analysis.

CurrentPost-Sale Duty to Warn: Product designs are often developed and improvedafter sale so that many risks that existed at the time of sale are reduced orcompletely eliminated. Also, as products are refined and developed after sale,manufacturers maybe become aware of risks or hazards that could not have beenknown at the time of sale. Some jurisdictions have imposed a general"post-sale" continuing duty upon manufacturers to warn allconsumers, including second-hand purchasers, of newly-acquired product orsafety-related information. Massachusetts continues to decline to impose suchsuch a general post-sale duty to warn; however, the post-sale duty to warn hasbroadened recently, and a recent case indicates that it may expand further inthe future.

In Massachusetts from approximately 1975 through 1998 only themanufacturer of a "defective" product had an ongoing duty to warn atleast the initial purchaser of the risk created by the product. In 1998 the"state of the art" standard was adopted and with it manufacturers inMassachusetts now have a continuing duty to warn (at least the initialpurchaser) of product risks discovered following the sale of any product. Thisis an expansion of the earlier duty in that post-sale warnings must now be givento purchasers even though the original product was not defective.

Massachusettshas thus far failed to explicitly extend the target of the post-sale duty towarn beyond the initial purchaser; however a recent case suggests that a broaderduty to warn second-hand purchasers may be developing. In Lewis v. Ariens,49 Mass. App, Ct. 309, (2000), the Massachusetts Appeals Court considered a caseinvolving an injury to a second-hand purchaser of a snow blower. The snow blowerwas manufactured and thereafter sold at retail to the initial purchaser in 1966.Mr. Lewis purchased the used machine in 1982. He sustained injury while usingthe snow blower in 1988. On these facts the Appeals Court declined to extend thepost-sale warning requirement to include Mr. Lewis, noting that "..a personwho buys a machine second-hand is a member of a universe too diffuse and toolarge for manufacturers or sellers of original to identify.. We are not preparedto adopt as a general rule a requirement to update warnings to the owner of aproduct who has purchased it second-hand, third-hand, or fourth-hand."While Lewis court failed to explicitly adopt the requirement of post-salewarnings as a general circumstances when warnings to second-hand purchasers willbe required. In a footnote the court wrote: "One may imagine cases wherethe danger in a product is so urgent and would affect potentially such a largenumber of people that the manufacturer would have a duty to warn secondarybuyers by recourse to the Internet and the advertisements through electronic andprint media."

Conclusion: Manufacturers can take some comfort fromrecent Massachusetts product liability law "failure to warn" cases.The abandonment of the "hindsight" analysis and the adoption of the"state of the art" standard in these cases means that themanufacturers may now defend against these claims by establishing the"reasonableness" of their warnings and their efforts in analyzingsafety and risk factors. At the same time manufacturers must now make post-salewarnings to initial purchasers regardless of whether the product was defectivein any way when sold at retail. In addition, the Lewis decision suggeststhat post-sale warnings to second-hand purchasers may be required when an urgentdanger exists. Unfortunately, there is currently no clear gauge formanufacturers to determine what will be considered "an urgent danger"so as to trigger the post-sale warning to a second-hand purchaser. It isnecessary, therefore, to carefully analyze future case decisions to determine ifand what extent this new duty will evolve.