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AMI 1002 Products Liability—Negligence—Manufacturer's Duty to Warn

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 1002
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 10. Products Liability
AMI 1002 Products Liability—Negligence—Manufacturer's Duty to Warn
A manufacturer of a (product) has a duty to give a reasonable and adequate warning of dangers [inherent][or][reasonably foreseeable] in its use [(for a purpose) (and) (in a manner) that the manufacturer should reasonably foresee]. A violation of this duty is negligence. There is no duty, however, to warn a user of obvious dangers or those known to [him][her] or those which [he][she] should reasonably discover for [himself][herself].
COMMENT
“[T]he manufacturer … is not required to foresee that someone might be affected because of his [or her] peculiar sensitivities to the substance causing the injury.” Vanoven v. Hardin, 233 Ark. 301, 306, 344 S.W.2d 340, 343 (1961) (affirming a directed verdict for defendant when plaintiff developed dermatitis resulting from an allergy to the defendant's insecticide when neither plaintiff nor defendant was aware of the allergy previously).
The duty to warn may extend beyond the purchaser of a manufacturer's product to an ultimate user. Hopkins v. Chip-In-Saw, 630 F.2d 616, 619 (8th Cir. 1980) (examining the scope of the duty and corresponding jury instructions).
For the distinction between (1) the inapplicability of the “patent danger” doctrine to negligent design claims, (2) the inapplicability of the “open and obvious danger” doctrine to failure-to-warn claims, and (3) comparative fault and assumption of risk, see Forrest City Mach. Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981).
In Hergeth, Inc. v. Green, 293 Ark. 119, 123–24, 733 S.W.2d 409, 411 (1987), the court properly instructed the jury on the manufacturer's duty to warn. Given the disputed facts, the court could not say as a matter of law that the danger presented in the case was open and obvious. In Larson Mach., Inc. v. Wallace, 268 Ark. 192, 206–12, 600 S.W.2d 1, 9–11 (1980), the court found that the alleged hazardous condition was not open and obvious and, therefore, upheld a jury verdict against the dealer on a failure to warn claim. The court determined that an independent intervening cause precluded liability for negligence on the part of the manufacturer when the dealer modified the product and thus created a danger which did not exist at the time it left the control of the manufacturer.
In certain cases, the learned intermediary doctrine applies under Arkansas law. The doctrine provides that a drug manufacturer may rely on the prescribing physician to warn the ultimate consumer of the risks of a prescription drug. See West v. Searle & Co., 305 Ark. 33, 42, 806 S.W.2d 608, 612 (1991) (applying the doctrine in case of oral contraceptives).
Failure-to-warn claims against manufacturers of generic drugs alleging that state tort law requires a label different from that used on the corresponding brand-name drug label provided to physicians are preempted by federal law, which requires manufacturers of generic drugs to use the same safety and efficacy labels as the brand-name manufacturer. PLIVA, Inc. v. Mensing, U.S. , 131 S. Ct. 2567, 2577–78 (2011). Failure-to-warn claims against brand-name manufacturers, however, are not preempted. See PLIVA, Inc., 131 S. Ct. at 2581 (distinguishing Wyeth v. Levine, 555 U.S. 555, 572–73 (2009)). For application of Mensing under Arkansas's learned intermediary doctrine, see Bell v. PLIVA, Inc., 845 F. Supp. 2d 967, No. 5:10CV00101, 2012 WL 640742, at *3–4 (E.D. Ark. Feb. 16, 2012) (holding failure-to-warn claim preempted).
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