A plaintiff asserting a failure to warn product liability claim based in strict liability must show the failure to warn actually caused the plaintiff’s injuries. This is an easier task for plaintiffs in states that recognize the “heeding presumption” doctrine.
Under the heeding presumption, when a plaintiff shows the absence of an adequate warning, it is presumed the plaintiff would have heeded an adequate warning if the manufacturer had provided one. This shifts the burden to the defendant to prove the plaintiff would not have followed the warning. In the United States (including Puerto Rico and the District of Columbia), sixteen (16) states expressly recognize the heeding presumption, with some applying the doctrine in more limited circumstances than others. The remainder of the states have either expressly rejected it or they have not definitively addressed it. This survey sets forth the status of the heeding presumption doctrine in each state.
Alabama does not recognize the heeding presumption. Barnhill v. Teva Pharmaceuticals USA, Inc., 819 F. Supp. 2d 1254, 1262 (S.D. Ala. 2011) (“Alabama courts have not recognized such a [heeding] presumption”) (citing Deere & Co. v. Grose, 586 So. 2d 196, 198 (Ala. 1991)).
Alaska does not recognize the heeding presumption. Ross Laboratories, Div. of Abbot Laboratories v. Thies, 725 P.2d 1076, 1079 (Alaska 1986) (requiring evidentiary support to prove “parties were incapable of understanding an adequate warning or that such a warning would not have been heeded by them”); Ellis v. Coleman Co., 2000 WL 1131893, at *2 (9th Cir. 2000).
Arizona recognizes the heeding presumption. Golonka v. General Motors Corp., 65 P.3d 956, 968-9 (Ariz. App. 1996) (“[T]he heeding presumption is viable in Arizona”). The Arizona Supreme Court has yet to rule on this issue.
Arkansas recognizes the heeding presumption. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 842 (8th Cir. 2001) (“Under Arkansas law, once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded an adequate warning”) (citing Bushong v. Garman Co., 311 Ark. 228, 234, 843 S.W.2d 807, 811 (1992)).
California does not recognize the heeding presumption. Huitt v. S. California Gas Co., 188 Cal. App. 4th 1586, 1603, 116 Cal. Rptr. 3d 453, 467 (2010).
No state court in Colorado has recognized the heeding presumption. Potthoff v. Alms, 41 Colo App. 51, 54, 583 P.2d 309, 311 (1978). However, the Tenth Circuit stated that Colorado did recognize the heeding presumption in Staley v. Bridgestone/Firestone, Inc., 106 F.3d 1504, 1509 (10th Cir. 1997).
Connecticut does not recognize the heeding presumption. Connecticut General Statutes § 52–572p(a) provides that “[a] product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party….” See also DeJesus v. Craftsman Machinery Co., 16 Conn. App. 558, 574, 548 A.2d 736, 744 (1988).
Delaware does not recognize the heeding presumption. Delaware has never adopted strict liability or Restatement (Second) of Tort § 402A (1965).
DISTRICT OF COLUMBIA
The District of Columbia recognizes the heeding presumption. East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1124 (D.C. 1990) (“[The court] [a]dopted a rebuttable presumption that the user would have read an adequate warning, and in the absence of evidence rebutting the presumption, a jury may find that the defendant’s product was the producing cause of the plaintiff’s injury.”).
Florida does not recognize the heeding presumption, and there are no state court cases that discuss the presumption under Florida law.
Georgia does not recognize the heeding presumption. Dozier Crane & Mach., Inc. v. Gibson, 284 Ga. App. 496, 500, 644 S.E.2d 333, 336 (2007) (“[W]here there is no evidence that a plaintiff read the allegedly inadequate warning, causation cannot be shown.”).
No Hawaii court has expressly recognized the heeding presumption under Hawaii law.
No Idaho court has expressly recognized the heeding presumption under Idaho law.
No Illinois state court has recognized the heeding presumption, but at least one federal district court applied Illinois law to recognize the heeding presumption. Rutz v. Novartis Pharm. Corp., 2012 WL 6569361 (S.D. Ill. Dec. 17, 2012).
Indiana recognizes the heeding presumption. Indiana’s heeding presumption “may be rebutted with evidence that an adequate warning would not have been heeded.” In re Fosamax Products Liability Litigation, 688 F. Supp. 2d 259, 266 (S.D.N.Y. 2010) (applying Indiana law). See also Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d 541,555 (Ind. App. 1979).
Iowa state courts have not recognized the heeding presumption. Federal courts in Iowa have recognized a limited heeding presumption. Petty v. United States, 740 F.2d 1428, 1437-38 (8th Cir. 1984) (affirming, “the district court’s application of a rebuttable presumption to the proximate cause issue. The district court relied on the factual distinctions between the physician-patient situation . . . and the mass-immunization context of this case to justify the use of the rebuttable presumption.”).
Kansas recognizes the heeding presumption. Wooderson v. Ortho Pharmaceutical Corp., 681 P.2d 1038, 1042 (Kan. 1984) (“There is a presumption that an adequate warning would be heeded. This operates to the benefit of a manufacturer where adequate warnings are in fact given. Where warnings are inadequate, however, the presumption is in essence a presumption of causation…”).
At least one federal district court applied Kentucky law to recognize the heeding presumption. Snawder v. Cohen, 804 F. Supp. 910, 911 (6th Cir. 1993) (“In failure to warn cases, the plaintiff was entitled to a rebuttable presumption that she would have heeded a warning and acted to minimize the risk”) (applying Kentucky law).
Louisiana recognizes the heeding presumption. Bloxom v. Bloxom, 512 So.2d 839, 850 (La. 1987) (“The presumption may, however, be rebutted if the manufacturer produces contrary evidence which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances”).
Maine does not recognize the heeding presumption. Novak v. Mentor Worldwide LLC, 287 F. Supp. 3d 85, 96 (D. Me. 2018) (requiring affirmative evidence that the doctor would have changed his use of the product for plaintiff to survive summary judgment).
Maryland recognizes the heeding presumption. United States Gypsum Co. v. Mayor of Baltimore, 647 A.2d 405, 413 (Md. 1994); Eagle-Picher Industries, Inc. v. Balbos, 604 A.2d 445, 468-69 (Md. 1992).
Massachusetts recognizes the heeding presumption. Evans v. Lorillard Tobacco Co., 990 N.E. 3d 997, 1023-24 (Mass. 2013).
Michigan does not recognize the heeding presumption. Allen v. Owens-Corning Fiberglass Corp., 571 N.W.2d 530 (Mich. App. 1997).
Minnesota does not recognize the heeding presumption. Yennie v. Dickey Consumer Prod., Inc., 2000 WL 1052175, at *1 (Minn. Ct. App. Aug. 1, 2000).
Mississippi does not recognize the heeding presumption. Wyeth Laboratories, Inc. v. Fortenberry, 530 So.2d 688 (Miss. 1988); Harris v. International Truck & Engine Corp., 912 So.2d 1101, 1109 (Miss. App. 2005).
Missouri recognizes the heeding presumption. Moore v. Ford Motor Co., 332 S.W.3d 749, 762-63 (Mo. 2011); Anderson v. F.J. Little Mach. Co., 68 F.3d 1113, 1115 (8th Cir. 1995) (applying Missouri law).
Montana does not recognize the heeding presumption in strict liability failure to warn cases. Riley v. American Honda Motor Co., 856 P.2d 196, 199 (Mont. 1993); see also Patch v. Hillerich & Bradsby Co., 257 P.3d 383, 389-90 (Mont. 2011).
No Nebraska court has expressly recognized the heeding presumption under Nebraska law.
As a matter of first impression, the Nevada Supreme Court rejected the heeding presumption in strict products liability failure-to-warn cases. Rivera v. Philip Morris, Inc., 209 P.3d 271, 274 (Nev. 2009). The court reasoned that “public policy is best served by [its] rejecting the heeding presumption . . . not to encourage its reliance on warnings.” Id. at 277. Thus, the plaintiff bears the burden of production and must prove that the inadequate warning caused his injuries. Id. at 273.
New Hampshire has not expressly adopted the heeding presumption. Barlett v. Mut. Pharm. Co., Inc., 731 F. Supp. 2d 135, 147 (D.N.H. 2010) (“Whether that so-called ‘heeding presumption’ applies under New Hampshire law is questionable.” (citing Wilson v. Bradlees of New Eng., Inc., 250 F.3d 10, 16 (1st Cir. 2001), which recognized that the New Hampshire Supreme Court had not yet applied the heeding presumption).
New Jersey recognizes the heeding presumption. Coffman v. Keene Corp., 628 A.2d 710, 717-19 (N.J. 1993). However, the presumption “is primarily applicable in circumstances in which plaintiff lacks the ability to prove by direct evidence that a proper warning, if given, would have been heeded.” McDarby v. Merck & Co., 949 A.2d 223, 267-69 (N.J. Super App. Div. 2008).
No New Mexico court has expressly recognized the heeding presumption under New Mexico law.
Although New York courts reached somewhat conflicting decisions in the past, according to a more recent decision, the state does not recognize the heeding presumption. In In re N.Y.C. Asbestos Litig., in dicta, the court stated that “trial courts must continue to ensure that their jury instructions honor the principle that the burden of proving proximate causation, which in a case like this one includes the burden of demonstrating that the injured party would have heeded warnings, falls squarely on plaintiffs.” 59 N.E.3d 458, 482 (N.Y. 2016) (finding that the issue of heeding presumption was waived). In addition, a New York federal court held that New York does not recognize the heeding presumption. Adeghe v. Janssen Pharm., 16 Civ. 2235 (LGS), 2017 WL 3741310 at *6 (S.D.N.Y. Aug. 30, 2017) (applying New York law).
North Carolina prohibits strict liability, N.C. G.S.A. §99B-1.1, and expressly imposes on plaintiffs the burden of proving causation in warning cases. N.C. G.S.A. §99B-5(a).
North Dakota recognizes the heeding presumption. See, e.g. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 410 (N.D. 1994).
Ohio recognizes the heeding presumption. Seley v. G.D. Searle Co., 423 N.E.2d 831, 838 (Ohio 1981).
Oklahoma recognizes the heeding presumption. Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1382 (Okla. 1974).
Oregon does not recognize the heeding presumption. Parkinson v. Novaritis Pharm. Corp., 5 F. Supp. 3d 1265, 1272 (D. Or. 2014); McPike v. Enciso’s Cocina Mejicana, Inc., 762 P.2d 315, 319 (Or. App. 1988).
While Pennsylvania has adopted the heeding presumption, it is more limited to “situations where the plaintiff is not forced by employment to be exposed to the product causing harm.” Viguers v. Philip Morris USA, Inc., 837 A.2d 534 (Pa. Super. 2004), aff’d, 881 A.2d 1262 (Pa. 2005). Furthermore, the heeding presumption does not apply in prescription medical product cases because, under Pennsylvania law, strict liability does not apply to such cases. Fecho v. Eli Lilly & Co., 914 F. Supp. 2d 130, 145-47 (D. Mass. 2012) (applying Pennsylvania law).
No Puerto Rico court has expressly recognized the heeding presumption under Puerto Rico law.
No Rhode Island court has expressly recognized the heeding presumption under Rhode Island law.
South Carolina does not recognize the heeding presumption. Odom v. G.D. Searle & Co. 979 F.2d 1001, 1003 (4th Cir. 1992) (applying South Carolina law); see also Sauls v. Wyeth Pharm., 846 F. Supp. 2d 499, 503 (D.S.C. 2012).
South Dakota has not expressly recognized the heeding presumption. In Karst v. Shur-Co, the court stated that, in negligence and strict liability cases, the plaintiff has the burden to “show that adequate warnings would have made a difference in the outcome, that is, that they would have been followed.” 878 N.W.2d 604, 613 (S.D. 2016) (internal citations and quotations omitted).
Tennessee has not adopted the heeding presumption. Payne v. Novartis Pharm. Corp., 767 F.3d 526, 533 (6th Cir. 2014).
While the heeding presumption exists in Texas, it is limited. The Fifth Circuit applied the heeding presumption in a mass vaccination case, Reyes v. Wyeth Labs., 498 F.2d 1264, 1281-82 (5th Cir. 1974) (applying Texas law), however it later held that the heeding presumption, under Texas law, does not apply in cases involving prescription medical products. Ackermann v. Wyeth Pharm. 526 F.3d 203, 212-13 (5th Cir. 2008) (applying Texas law).
Utah has adopted the heeding presumption. House v. Armour of Am., Inc., 929 P.2d 340, 347 (Utah 1996).
Vermont recognizes the heeding presumption. Needham v. Coordinated Apparel Group, Inc., 174 Vt. 263, 265 (2002).
“…Virginia does not observe a heeding presumption…” Ford Motor Co. v. Boomer, 736 S.E.2d 724, 733 (Va. 2013) (footnote omitted).
Under Washington law, the heeding presumption is not recognized. Luttrell v. Novartis Pharm. Corp., 894 F. Supp. 2d 1324, 1345 n.16 (E.D. Wash. 2012), aff’d, 555 F. App’x 710 (9th Cir. 2014).
“West Virginia does not apply a heeding presumption.” In re NuvaRing Litig. 2013 WL 1874321, at *35-36 (N.J. Super. Law Div. Apr. 18, 2013). No West Virginia court has expressly recognized the heeding presumption under West Virginia law.
Wisconsin appellate courts have not expressly addressed the heeding presumption. In re Zimmer Nexgen Knee Implant Prods. Liab. Litig., No. 16-3957, 2018 WL 1193431,at *5 (7th Cir. March. 8, 2018) (applying Wisconsin law and refusing to adopt the heeding presumption). Wisconsin law clearly places the burden of proving causation on the plaintiff in a failure-to-warn case. Kurer v. Parke, Davis & Co., 679 N.W.2d 867, 876 (Wis. Ct. App. 2004).
No Wyoming court has expressly recognized the heeding presumption under Wyoming law.