A plaintiff asserting a failure to warn product liability claim based in strict liability must show the failure to warn actually caused the plaintiff’s injuries. This is an easier task for plaintiffs in states that recognize the “heeding presumption” doctrine.
Under the heeding presumption, when a plaintiff shows the absence of an adequate warning, it is presumed the plaintiff would have heeded an adequate warning if the manufacturer had provided one. This shifts the burden to the defendant to prove the plaintiff would not have followed the warning. In the United States (including Puerto Rico and the District of Columbia), sixteen (16) states expressly recognize the heeding presumption, with some applying the doctrine in more limited circumstances than others. The remainder of the states have either expressly rejected it or they have not definitively addressed it. This survey sets forth the status of the heeding presumption doctrine in each state.
ALABAMA
Alabama does not recognize the heeding presumption. Barnhill v. Teva Pharmaceuticals USA, Inc., 819 F. Supp. 2d 1254, 1262 (S.D. Ala. 2011) (“Alabama courts have not recognized such a [heeding] presumption”) (citing Deere & Co. v. Grose, 586 So. 2d 196, 198 (Ala. 1991)).
ALASKA
Alaska does not recognize the heeding presumption. Ross Laboratories, Div. of Abbot Laboratories v. Thies, 725 P.2d 1076, 1079 (Alaska 1986) (requiring evidentiary support to prove “parties were incapable of understanding an adequate warning or that such a warning would not have been heeded by them”); Ellis v. Coleman Co., 2000 WL 1131893, at *2 (9th Cir. 2000).
ARIZONA
Arizona recognizes the heeding presumption. Golonka v. General Motors Corp., 65 P.3d 956, 968-9 (Ariz. App. 1996) (“[T]he heeding presumption is viable in Arizona”). The Arizona Supreme Court has yet to rule on this issue.
ARKANSAS
Arkansas recognizes the heeding presumption. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 842 (8th Cir. 2001) (“Under Arkansas law, once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded an adequate warning”) (citing Bushong v. Garman Co., 311 Ark. 228, 234, 843 S.W.2d 807, 811 (1992)).
California does not recognize the heeding presumption. Huitt v. S. California Gas Co., 188 Cal. App. 4th 1586, 1603, 116 Cal. Rptr. 3d 453, 467 (2010).
COLORADO
No state court in Colorado has recognized the heeding presumption. Potthoff v. Alms, 41 Colo App. 51, 54, 583 P.2d 309, 311 (1978). However, the Tenth Circuit stated that Colorado did recognize the heeding presumption in Staley v. Bridgestone/Firestone, Inc., 106 F.3d 1504, 1509 (10th Cir. 1997).
CONNECTICUT
Connecticut does not recognize the heeding presumption. Connecticut General Statutes § 52–572p(a) provides that “[a] product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party….” See also DeJesus v. Craftsman Machinery Co., 16 Conn. App. 558, 574, 548 A.2d 736, 744 (1988).
DELAWARE
Delaware does not recognize the heeding presumption. Delaware has never adopted strict liability or Restatement (Second) of Tort § 402A (1965).
DISTRICT OF COLUMBIA
The District of Columbia recognizes the heeding presumption. East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1124 (D.C. 1990) (“[The court] [a]dopted a rebuttable presumption that the user would have read an adequate warning, and in the absence of evidence rebutting the presumption, a jury may find that the defendant’s product was the producing cause of the plaintiff’s injury.”).
FLORIDA
Florida does not recognize the heeding presumption, and there are no state court cases that discuss the presumption under Florida law.
GEORGIA
Georgia does not recognize the heeding presumption. Dozier Crane & Mach., Inc. v. Gibson, 284 Ga. App. 496, 500, 644 S.E.2d 333, 336 (2007) (“[W]here there is no evidence that a plaintiff read the allegedly inadequate warning, causation cannot be shown.”).
HAWAII
No Hawaii court has expressly recognized the heeding presumption under Hawaii law.
IDAHO
No Idaho court has expressly recognized the heeding presumption under Idaho law.
ILLINOIS
No Illinois state court has recognized the heeding presumption, but at least one federal district court applied Illinois law to recognize the heeding presumption. Rutz v. Novartis Pharm. Corp., 2012 WL 6569361 (S.D. Ill. Dec. 17, 2012).
INDIANA
Indiana recognizes the heeding presumption. Indiana’s heeding presumption “may be rebutted with evidence that an adequate warning would not have been heeded.” In re Fosamax Products Liability Litigation, 688 F. Supp. 2d 259, 266 (S.D.N.Y. 2010) (applying Indiana law). See also Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d 541,555 (Ind. App. 1979).
IOWA
Iowa state courts have not recognized the heeding presumption. Federal courts in Iowa have recognized a limited heeding presumption. Petty v. United States, 740 F.2d 1428, 1437-38 (8th Cir. 1984) (affirming, “the district court’s application of a rebuttable presumption to the proximate cause issue. The district court relied on the factual distinctions between the physician-patient situation . . . and the mass-immunization context of this case to justify the use of the rebuttable presumption.”).
KANSAS
Kansas recognizes the heeding presumption. Wooderson v. Ortho Pharmaceutical Corp., 681 P.2d 1038, 1042 (Kan. 1984) (“There is a presumption that an adequate warning would be heeded. This operates to the benefit of a manufacturer where adequate warnings are in fact given. Where warnings are inadequate, however, the presumption is in essence a presumption of causation…”).
KENTUCKY
At least one federal district court applied Kentucky law to recognize the heeding presumption. Snawder v. Cohen, 804 F. Supp. 910, 911 (6th Cir. 1993) (“In failure to warn cases, the plaintiff was entitled to a rebuttable presumption that she would have heeded a warning and acted to minimize the risk”) (applying Kentucky law).
LOUISIANA
Louisiana recognizes the heeding presumption. Bloxom v. Bloxom, 512 So.2d 839, 850 (La. 1987) (“The presumption may, however, be rebutted if the manufacturer produces contrary evidence which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances”).
MAINE
Maine does not recognize the heeding presumption. Novak v. Mentor Worldwide LLC, 287 F. Supp. 3d 85, 96 (D. Me. 2018) (requiring affirmative evidence that the doctor would have changed his use of the product for plaintiff to survive summary judgment).
MARYLAND
Maryland recognizes the heeding presumption. United States Gypsum Co. v. Mayor of Baltimore, 647 A.2d 405, 413 (Md. 1994); Eagle-Picher Industries, Inc. v. Balbos, 604 A.2d 445, 468-69 (Md. 1992).
MASSACHUSETTS
Massachusetts recognizes the heeding presumption. Evans v....
