428 Mass. 1 (1998).
One-Sentence Takeaway: A defendant will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product.
Summary: Plaintiff claims that silicone breast implants had been negligently designed, accompanied by negligent warnings and that they breached the implied warranty of merchantability with the consequence that she was injured. Her husband claimed loss of consortium. The jury returned verdicts on the negligence and warranty counts in favor of the ∏s. On appeal, the court upheld the judgment entered on the negligence verdict.
The issue at hand was whether the trial court applied the correct standard regarding the duty to warn under the implied warranty of merchantability. The court answered in the negative.
Reasoning:
- The current standard the court uses is (strict liability standard):
- There is a presumption that the manufacturer is fully informed of all of the risks associated with the product at issue regardless of the state of the art at the time of the sale and strict liability is applied for failure to warn about these risks.
- Defendant wanted this jury charge:
- A manufacturer need only warn of risks known or reasonably known in light of the generally accepted scientific knowledge available at the time of the manufacture and distribution of the device.
- The court says that the judge’s instruction (the current standard) was correct, but the court notes that they are part of a minority that applies a hindsight analysis to duty to warn. Judge refused to instruct way that ∆ wanted.
- The court notes that a majority rejects the analysis that this court uses because it is impossible to warn against unforeseeable risks arising form foreseeable product use
- The court says that a majority of states uses the principle expressed in the Restatement (2nd) of Torts 402A comment j:
- Seller is required to give a warning against a danger if he has knowledge or by the application of reasonable developed human skill and foresight should have knowledge of the danger
- Note that comment M says that a seller is charged with the knowledge that reasonable product testing would reveal
- The court decides to apply the majority test from now on: the court says that
- A defendant will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product