We’ve covered a lot of topics since we started DDLaw in late 2006.  One that we haven’t addressed in any real fashion is overwarning – except for an unusual allegation made by a plaintiff that a defendant was “hiding” a warning among too many other warnings.  Cf. Kendall v. Hoffmann-La Roche, Inc., 2010 WL 3034453, at *22 (N.J. Super. App. Div. Aug. 5, 2010) (plaintiff complained that a drug’s warnings focused “predominantly” on birth defects and suicide but only “alluded to” about her condition (“abdominal and bowel problems”) in a “less conspicuous or pointed manner”).

We remedy that today.

Usually, the concept of overwarning is asserted by a defendant – that the plaintiff is threatening the usefulness of warnings about serious, relatively frequent risks by demanding that a defendant include a plethora of warnings about less serious and/or less frequent risks, or otherwise seeks to clutter up the defendant’s warnings with details of one sort or another.  As the Supreme Court observed, albeit not in the product liability context, “[m]eaningful disclosure does not mean more disclosure.  Rather, it describes a balance between competing considerations of complete disclosure and the need to avoid informational overload.”  Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980) (citation and quotation marks omitted).  A typical critique of the problem of overwarning in the general (non-drug/device) product liability context occurred in Liriano v Hobart Corp., in consideration of the “open and obvious” limitation on the duty to warn:

[W]hen a warning would have added nothing to the user’s appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning. . . .  This is particularly important because requiring a manufacturer to warn against obvious dangers could greatly increase the number of warnings accompanying certain products. . . .  Requiring too many warnings trivializes and undermines the entire purpose of the rule, drowning out cautions against latent dangers of which a user might not otherwise be aware.  Such a requirement would neutralize the effectiveness of warnings as an inexpensive way to allow consumers to adjust their behavior based on knowledge of a product’s inherent dangers.

700 N.E.2d 303, 308 (N.Y. 1998) (citation omitted) (emphasis added).  Here’s another:

[T]he proliferation of label detail threatens to undermine the effectiveness of warnings altogether.  As manufacturers append line after line onto product labels in the quest for the best possible warning, it is easy to lose sight of the label’s communicative value as a whole.  Well-meaning attempts to warn of every possible accident lead over time to voluminous yet impenetrable labels-too prolix to read and too technical to understand.Continue Reading On Overwarning