California “Warning Defects” (Failure to Warn) Laws

California product liability law imposes a duty of care on manufacturers, distributors and sellers of products to provide adequate instructions and warnings. If you are injured as a result of a warning defect, you can recover compensatory damages under California’s strict liability law – even if the manufacturer, distributor or seller was not negligent.¹

Damages for which the manufacturer, distributor or seller may be held liable can include (without limitation):

• Medical bills,
• Lost wages,
• Lost earning capacity, and
• Pain and suffering.

To help you better understand California’s “warning defects” product liability laws, our California personal injury lawyers will discuss:

• 1. The Elements of a Claim for a Defective Warning
• 2. What does it mean to use a product in a “reasonably foreseeable” way?
• 3. What damages are recoverable?
• 4. Can I recover punitive damages?
• 5. How long do I have to sue?
• Additional Reading

1. The Elements of a Claim for a Defective Warning

California Civil Jury Instructions (CACI) 1205 spells out the elements of “failure to warn” causes of action. For you to win a failure to warn claim, you must prove by a preponderance of the evidence that:

1. The defendant manufactured, distributed or sold a product;
2. The product had potential risks that were known or knowable by the defendant;
3. Such risks presented a substantial danger when the product was used or misused in an intended or reasonably foreseeable way;
4. Ordinary consumers would not have recognized the potential risks;
5. The defendant failed to warn consumers of the potential risks adequately; and;
6. As a result of the lack of instructions or warnings, you were harmed.²

2. What does it mean to use a product in a “reasonably foreseeable” way?

California law requires manufacturers and sellers of products to

1. consider how ordinary consumers are likely to use or misuse a product and
2. take reasonable steps to warn against misuse.

If warnings are adequate, your misuse of a product is a complete defense to strict products liability.³

However, if your misuse or modification of the product contributed to your injuries, but was not the sole cause, you may still be able to recover a portion of your damages under California’s comparative fault law.⁴

3. What damages are recoverable?

Compensatory damages for failure to warn in California can include, but are not limited to:

• Medical bills,
• Lost wages,
• Lost earning capacity,
• Pain and suffering, and
• Property damage.

4.  Can I recover punitive damages?

Yes, but only if the harm resulted from the defendant’s gross negligence or recklessness or was caused intentionally.

5. How long do I have to bring a claim?

California’s statute of limitations for defective warnings is generally two years from the date on which you were injured.⁵ If you do not file a lawsuit within this “limitations period,” you lose the right to sue.

However, if the injury was not discovered until later, a lawsuit can be commenced for up to one year after discovery of the injury if:

• You did not know of facts that would have caused a reasonable person to suspect that they had suffered harm due to an inadequate product warning, or
• A reasonable and diligent investigation would not have disclosed that a warning defect contributed to your harm.⁶

The two-year period can also be extended if you were under 18 or legally incompetent at the time of the injury or if the defendant was out-of-state.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Case for Preemption of Prescription Drug Failure-to-Warn Claims – Food and Drug Law Journal.
• Failing to Warn in the Context of Rare Side Effects – Cardozo Public Law, Policy & Ethics Journal.
• Medical Implant Litigation and Failure to Warn: A New Extension for the Learned Intermediary Rule – Kentucky Law Journal.
• Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn – N.Y.U. Law Journal.
• A Critical Examination of the FDA’s Efforts to Preempt Failure-To-Warn Claims – Georgetown Law Journal.

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