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Last week we wrote about the status of Arkansas’ law recognizing a post-sale duty to warn, ultimately concluding that Arkansas Courts have not recognized the existence of any such duty. This week we will explain how, despite this reality, plaintiffs often try to inject argument about this non-existent duty, and we will explain how to control for this in litigation.
The Amorphous Reference to a “Duty to Warn.” Beginning with a plaintiff’s complaint, extending through closing argument, and at any point in between, plaintiff’s counsel may directly or indirectly attempt to advance a claim based upon amorphous references to a defendant’s “duty to warn.” This often comes part in parcel with the all too frequently deployed “kitchen sink pleading” practice seen in litigation. While a specific iteration of a legally recognized “duty to warn” claim is appropriate, a panoptic reference is inapposite and potentially dangerous. Often times, defense counsel will need to insist on more detail and a more particularized reference, for example a duty to warn by attaching a label at the time of manufacturing instead of just a duty to warn. This can be achieved through a motion for partial summary judgment, a motion in limine, a proper jury instruction, and/or timely objections. There is no one-size-fits-all approach here, and the facts of each case should dictate the strategy. However, the jury should be insulated from argument that allows them to base any decision, whether directly or indirectly, on a post-sale duty to warn.
The Expert Witness. Although every lawyer knows that just because an expert said it, doesn’t make it law, a jury may not be so discerning. As such, also damaging to a defendant in a products case can be an expert witness that opines or implies that a defendant should have taken some action to warn after the sale. Unless carefully coached by plaintiff’s counsel, experts often fail to appreciate the monumentality of this legal issue. And even the professional expert witness can be misguided by experience because recognition of a post-sale duty to warn is something that varies from state to state. To control for this, often a motion in limine will be prudent. Strategically laying the groundwork for that motion in limine during the expert’s deposition is critical. And looking even further down the road, because leading the jury to a post-sale duty to warn can be so damaging and so contrary to established law, any testimony bordering on this issue must be adequately peppered with objections to preserve the issue for an appeal. Ultimately, the defense should not only rely on jury instructions, but also actively work to buffer the jury from plaintiff’s expert’s post-sale duty to warn opinions.
Reptile Tactics. Even more subtle than any of the above is plaintiff’s counsel’s reliance on reptile tactics. Without explicitly saying as much at trial, and without submitting a jury instruction on a post-sale duty to warn, plaintiff’s counsel often tries to sneak in the suggestion that a product manufacturer or seller should nonetheless be required to undertake some specific post-sale action. Arguing that the jury should send a message to manufacturers like this who sell a product and then do nothing to warn of defects that later develop—may seem like standard plaintiff’s reptile arguments, but they can lead the jury toward the legally non-existent post-sale duty to warn. As such, in addition to deploying the standard defense panoply of motions in limine to guard against reptile tactics, the skilled products liability lawyer must also seek exclusion of such tactics to the extent that they rely upon legal theories not recognized by law. The Arkansas plaintiff’s bar is well versed in waging war using reptile tactics, and they must be dealt with proactively.
This article is part of the Mitchell Williams Products Liability Series explaining the nuances of how Arkansas Products Liability law is interpreted and practiced.
