About a month ago, the Nevada Supreme Court took a look at the so-called “heeding presumption” – and rejected it outright. Rivera v. Philip Morris, Inc., ___ P.3d ___, 2009 WL 1563373 (Nev. June 4, 2009). Not only that, the decision was unanimous. Obviously, given the caption, Rivera wasn’t a drug or device case (which is why we didn’t jump on it right away). But, like drugs and devices, cigarettes have inherent risks that cannot be designed away. So some of the arguments we’ve used against the heeding presumption in drug cases would apply to cigarettes. Indeed, the degree of public knowledge concerning risks in cigarette cases is much greater than in the average drug case. So it may be that cigarettes represent an a fortiori situation.

But an unavoidably unsafe product analysis wasn’t the Nevada Supreme Court did in Rivera. The court didn’t split the baby like some courts have done – limiting the presumption to certain types of products or kinds of situations. Rather, Rivera rejected the heeding presumption entirely, as against all defendants in any case. That’s worthy of our attention, even though the subject matter is outside of our sandbox.

Rivera’s facts aren’t all that unusual; a typical smoking case with allegations of inadequate warnings about the risks of smoking. The defendant tobacco company moved for summary judgment on the warning claim, which was denied. The trial court interposed a heeding presumption, and stated that the defendant had not overcome it. 2009 WL 1563373, at *2. However, since the case was in federal court, Nevada procedure permitted certification of controlling questions of law to the Nevada Supreme Court. That’s what happened with the heeding presumption. Id.

The Rivera court first stated the general rule: “the burden of proving causation can be satisfied in failure-to-warn cases by demonstrating that a different warning would have altered the way the plaintiff used the product or would have prompted plaintiff to take precautions to avoid the injury.” 2009 WL 1563373, at *4. That’s essentially the same standard we use in our drug cases to win summary judgment in learned intermediary cases based upon independent physician knowledge and other doctor-related facts that preclude causation.

The heeding presumption, however, “departs from well-settled and established Nevada law.” Id. It would change the burden of production on warning causation:

Instead of requiring that the plaintiff prove each element of a strict product liability case, a heeding presumption removes the plaintiff’s responsibility to carry the initial burden of production as to the element of causation. A heeding presumption “allow[s] the fact-finder to presume that the person injured by product use would have heeded an adequate warning, if given. Therefore, a heeding presumption shifts the burden of production from the plaintiff to the manufacturer, who must rebut the presumption by proving that the plaintiff would not have heeded a different warning.

Id. (various citations and quotation marks omitted).

The court didn’t want to go there. First, it got rid of a couple of cases plaintiffs advanced by construing them as holding no more than, under the facts, the plaintiffs could have met their burden of proving causation. 2009 WL 1563373, at *5.

Then it turned to the crux of the heeding presumption – the language in Restatement (Second) of Torts §402a, comment j (1965): “[w]here warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Courts adopting the heeding presumption claim, as a some sort of symmetry, that a plaintiff presumptively would have followed a non-existent adequate warning.

That argument, of course, puts the rabbit squarely in the hat, because the comment j language really doesn’t give defendants anything. After all, if the warning is adequate, as the comment, postulates, the defendant doesn’t even need to get to causation to win. The defendant wins because there was nothing wrong with its warning – whether anybody read them or not. That means there’s really no “symmetry” or “corollary” at all. Instead, the heeding presumption effectively gives plaintiffs something of significant value (shifting the burden of, at least, production, on causation) for nothing (cases the defense wins anyway on adequacy of warming).

But we digress.

The Rivera court held that, while it had agreed with other parts of comment j in the past, in Allison v. Merck & Co., 878 P.2d 948 (Nev. 1994), it had not adopted all of comment j, and specifically had not adopted the language about presumed reliance upon warnings. 2009 WL 1563373, at *5 (“the manner in which we have previously cited to comment j indicates that we will not stray from the principle that the plaintiff carries the burden of production of the element of causation”). Coincidentally, Allison is the case where, when the votes of a splintered court are added together, a majority of the court followed the learned intermediary rule.

After discussing Allison, the court in Rivera comes out and says it: “It is a firmly rooted part of Nevada law that the plaintiff in a strict product liability case bears the burden of proving all the elements of his case, including causation.” 2009 WL 1563373, at *6. Rivera cites several other cases from around the country that refuse to adopt the heeding presumption. Id. (citing Riley v. American Honda Motor Co., 856 P.2d 196, 200 (Mont. 1993); DeJesus v. Craftsman Machinery Co., 548 A.2d 736, 744 (Conn. App. 1988); Harris v. International Truck & Engine Corp., 912 So.2d 1101, 1109 (Miss. App. 2005)).

Rivera also rejected the heeding presumption on public policy grounds. It’s basis was somewhat unusual. The court concluded that it didn’t really like warnings very much, and that manufacturers should instead be encouraged to design products differently:

[W]e strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products.

2009 WL 1563373, at *6. We’re not sure how we feel about that rationale, as there are a lot of product risks – in cigarettes, and in prescription drugs – that simply cannot be designed away. That’s what the unavoidably unsafe product concept is all about.

One thing we don’t have any qualms over, however is the court’s alternative policy ground, recognizing that presuming even adequate warnings will be heeded is an out and out fiction:
[I]t is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. Warnings are everywhere in the modern world and often go unread or, where read, ignored.
Id. (citation and quotation marks omitted).

Rivera got us thinking about the heeding presumption generally. We’ve examined it previously, but that was limited to the context of prescription drugs and medical devices. We also discussed Ackermann v. Wyeth, 526 F.3d 203 (5th Cir. 2008), a case both of us had a hand in (it was Herrmann’s case, and Bexis contributed an amicus brief). Ackermann wiped out the heeding presumption in prescription drug cases brought in Texas:

Further, we doubt the Texas Supreme Court would apply such a presumption here, when it would not serve its intended purposes. . . . In the learned-intermediary context, however, it is [the prescriber], not [the plaintiff], who had to testify about his decision to prescribe [the drug. . . .] [T]o “read and heed,” in the context of a learned intermediary, means only that the physician would have incorporated the additional risk into his decisional calculus.

526 F.3d at 213. See also Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 814 (5th Cir. 1992) (no presumption in unavoidably unsafe products because the effect of a presumption on an inherent risk would be to presume that nobody would ever use the product); Lineberger v. Wyeth, 894 A.2d 141, 145, 149-50 (Pa. Super. 2006) (heeding presumption limited to products involuntarily encountered in the course of a plaintiff’s employment).

But while we’ve considered the presumption’s applicability with respect to unavoidably unsafe products, we’ve never considered the existential question of “to heed or not to heed, is there a presumption?” Apologies to The Bard for that one.

We’ll do that now.

As we expected, the Nevada Supreme Court in Rivera cited most of the best cases. In Riley, the Montana Supreme Court methodically shot down the various “policy” arguments that were advanced in support of the heeding presumption:

First, the dissent contends that it is “common sense” that if an adequate warning is given the plaintiff would have read and heeded it. While this might be common sense in an ideal world, our own experience does not support it; warnings are everywhere in the modern world and often go unread or, where read, ignored. We conclude that the presumption is not appropriate running in either direction, to the manufacturer/seller where a warning is given or to a plaintiff where it is not.

856 P.2d at 200. That sounds like “common sense” to us. We don’t read every warning that we encounter – and we’re defense lawyers. Like Riley, we don’t think anybody else does either.

Next, the dissent raises the perceived difficulties involved in requiring a plaintiff to establish the causation element. We note that the evidence required to establish this element is not qualitatively different than other testimony given by a party in support of her or his prima facie case. Concerns that the testimony may be speculative or self-serving and that a plaintiff may die before the testimony is given are not unique to this cause of action.

Id. We’d go a step further. If plaintiffs are inclined to commit perjury in support of possible recovery, that’s no reason at all to reward them by shifting the burden of proof.

Finally, the dissent argues that the presumption is consistent with the policy behind strict products liability. This may be so; so too would many other changes in a plaintiff’s burden of establishing a prima facie case-including the elimination of any burden at all-be consistent with that policy. We are unwilling to shift the respective parties’ burdens in such a fashion. . . . A defendant certainly is in no better position to rebut a presumption which totally excuses a plaintiff from meeting the causation element than a plaintiff is in establishing the causation element as part of the prima facie case.

Id. We’ve seen plaintiffs trot this tired argument out in favor of abandoning any and all legal rules that can preclude recovery. Thus, there are lots of cases that, like Riley, reject it in various contexts. Here’s one we happen to have lying around: Strict liability “policies, however, have not been, and cannot be, applied to remove all forms of restriction imposed upon plaintiffs’ proofs in products liability actions.” Duchess v. Langston Corp., 769 A.2d 1131, 1145 (Pa. 2001) (subsequent remedial measures admissible in strict liability).

In Harris, the court declined to create a heeding presumption in a case involving a truck accident. The court observed that its state supreme court had, in a prior warning causation case (one involving a prescription vaccine), held: “Assuming arguendo that the warning was inadequate, [the plaintiff] still had the burden of showing that an adequate warning would have altered [the doctor’s] conduct.” 912 So.2d 1109 (quoting Wyeth Laboratories, Inc. v. Fortenberry, 530 So.2d 688, 691 (Miss.1988)). This causation standard, Harris held, precluded any heeding presumption:

The fact that our supreme court has ruled on cases where a heeding presumption could easily have been applied to aid the plaintiff in a products liability case and declined to do so indicates to us that the [court] has no intention or desire to adopt or create a heeding presumption as a part of our jurisprudence with respect to product liability cases. Therefore, we decline to create one as well.

Id.

DeJesus, in contrast, was more of a statutory case, involving causation language in the Connecticut product liability statute. The statute, however, was silent about what “proving’ causation entailed. The court held that it did not entail a heeding presumption:

[Plaintiff’s] argument is untenable. The plaintiff, the claimant herein, acknowledges that [the statute] specifically places upon him the burden of proving proximate cause, but then argues that the statute is vague by not providing guidelines as to how a claimant can satisfy this burden. . . . The language of the statute is clear. There was no presumption of proximate cause that arose on the jury’s finding that [defendant] had failed to provide adequate warnings.

548 A.2d at 744.

Beyond the cases cited in Rivera, there’s a lot of law, perhaps predictably, in New York and California.

In New York, “[u]nder well settled law, to prove proximate cause, a plaintiff has the obligation to adduce proof that had a warning been provided, she would have read the warning and heeded it.” Mulhall v. Hannafin, 841 N.Y.S.2d 282, 287 (N.Y.A.D. 2007). Accord Sosna v. American Home Products, 748 N.Y.S.2d 548, 549 (N.Y.A.D. 2002) (“in this State, it remains plaintiff’s burden to prove that defendant’s failure to warn was a proximate cause of his injury, and this burden includes adducing proof that the user of a product would have read and heeded a warning had one been given”); Topliff v. Wal-Mart Stores East LP, 2007 WL 911891, at *43 (N.D.N.Y. March 22, 2007) (no heeding presumption in New York; at most an “inference”); Smallwood v. Clairol, Inc., 2005 WL 425491, at *2 (S.D.N.Y. Feb. 18, 2005) (“plaintiff has the burden to establish “that he would have read and heeded a different warning had one been given”).

In California, all the law’s on the trial court level, but it holds that California would not recognize a heeding presumption. In Motus v. Pfizer Inc., after a lengthy discussion of California precedent, the court summed up:

Given that other no other court applying California law in this context has adopted the presumption, and several courts have failed to do so when the presumption could have been critical, this Court will not apply it here.

196 F. Supp.2d 984, 994-95 (C.D. Cal. 2001), aff’d, 358 F.3d 659 (9th Cir. 2004). Accord Nix v. SmithKline Beecham Corp., 2007 WL 2526402, at *2 (D. Ariz. Sept. 5, 2007) (“California. . .has not adopted a rebuttable presumption that the physician would have heeded an adequate warning”); Latiolais v. Merck & Co., 2007 WL 5861354, at *4 (C.D. Cal. Feb. 6, 2007) (plaintiff “improperly invokes the ‘rebuttable presumption’ doctrine. . ., as no California court had adopted it”), aff’d, 302 Fed. Appx. 756 (9th Cir. 2008); Lord v. Sigueiros, 2006 WL 1510408, at *4 (Cal. Super. April 26, 2006) (concluding that Motus “accurately summarize[s]” California law), aff’d, 2007 WL 4418019 (Cal. App. Dec. 19, 2007) (unpublished).

Elsewhere, courts have concluded that Alabama, Georgia, Minnesota, New Hampshire, South Carolina, and Wisconsin do not recognize the heeding presumption. See Gurley v. American Honda Motor Co., Inc., 505 So.2d 358, 361 (Ala. 1987) (warning cases “cannot be submitted to a jury unless there is some evidence that the allegedly inadequate warning would have been read and heeded and would have kept the accident from occurring”); Porter v. Eli Lilly & Co., 2008 WL 544739, at *11 (N.D. Ga. Feb. 25, 2008) (“there is no indication in Georgia law, however, that it would apply this comment in the manner of a ‘heeding presumption’ that would vitiate the need for a plaintiff to establish proximate cause for her injuries”), aff’d, 291 Fed. Appx. 963 (11th Cir. 2008); Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 925 (8th Cir. 2004) (“Minnesota state courts have not adopted the so-called ‘heeding presumption’”); Wilson v. Bradlees, Inc., 250 F.3d 10, 16 (1st Cir. 2001) (“New Hampshire has not adopted the ‘read and heed’ presumption, and we will not do so on its behalf”); Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992) (“There is no such presumption under South Carolina law, and we are unwilling to create one”); Kurer v. Parke, Davis & Co., 679 N.W.2d 867, 876 (Wis. App. 2004) (“[e]ven in the event that a warning is inadequate, proximate cause is not presumed”).

So, while there are quite a few states that adopted heeding presumptions – mostly during product liability law’s “free lunch” period in the 1970s and 1980s – there’s hope yet. Rivera demonstrates that, when an appellate court actually takes a hard look at the underpinnings of this spurious presumption, there’s a good chance that it will be rejected.