Product Warnings Litigation: Fixing What's Wrong

These noted scholars ' Twerski is a professor of Brooklyn Law School and Henderson is professor emeritus at Cornell Law School ' are no strangers to product liability law, and the legal standards for gauging when designs or warnings are to be considered “defective.” Both were Reporters for the Restatement of Torts, Third: Products Liability, the American Law Institute's prestigious and oft-cited collection of black-letter rules and commentary governing product liability. They also authored the 1990 “Doctrinal Collapse” article in the New York University Law Review about warnings, which, 10 years later, was cited as one of the 25 most influential articles published by the NYU Law Review over the previous 75 years. (Henderson and Twerski, “Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn,” 65 N.Y.U. L. Rev. 265 (1990); See “Seventy-Fifth Anniversary Retrospective: Most Influential Articles,” 75 N.Y.U. L. Rev' 1517, 1558 (2000).) There, the authors unmasked major shortcomings in how courts handled warning litigation. Prior to surveying some highlights of Twerski and Henderson's brand-new proposal to “fix” the law of warnings, a review of some of the major problems would be appropriate.