failure to warn claim in California

2023The Supreme Court disapproved of the cases upon which we relied: Weinstein v. Dept. of Transportation (2006) 139 Cal.App.4th 52 , disapproved by Tansavatdi, supra, 14 Cal.5th at p. 659; Compton v. City of Santee (1993) 12 Cal.App.4th 591 , disapproved by Tansavatdi, at p. 659, fn. 4. 4 for having created the dangerous condition), plaintiffs would nonetheless remain entitled to move forward with their failure to warn claim.” (Ibid.) The Supreme Court transferred this matter back for our further consideration in light of its holding in Tansavatdi, supra. As directed by the Supreme Court, we vaca

2022(See Compton v. City of Santee (1993) 12 Cal.App.4th 591, 600 ; Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 61 ; Tansavatdi, supra, 60 Cal.App.5th at p. 428, review granted.) Specifically, the disagreement is over whether a failure-to-warn claim against a public entity is categorically precluded by design immunity when the underlying dangerous condition that the public entity failed to warn against is covered by design immunity.

2023Contrary to Weinstein, there is no language in Cameron suggesting that our holding was only intended to apply when a failure to warn claim challenges a road condition “that was not part of the approved design.” (Weinstein, supra, 139 Cal.App.4th at p. 61 .) Indeed, such a limitation is in direct conflict with Cameron’s conclusion that if the defendant were able to produce evidence on remand demonstrating that the banking of the curve was part of the approved plan (thus precluding any claim for having created that dangerous condition), plaintiffs would nonetheless remain entitled to move forwar

2022(See Compton v. City of Santee (1993) 12 Cal.App.4th 591, 600 ; Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 61 ; Tansavatdi, supra, 60 Cal.App.5th at p. 428, review granted.) Specifically, the disagreement is over whether a failure-to-warn claim against a public entity is categorically precluded by design immunity when the underlying dangerous condition that the public entity failed to warn against is covered by design immunity.

2020(Ibid.) In other words, it would be We asked for, and received, supplemental briefing on whether and 3 how Wyeth, supra, 555 U.S. 555 , should apply in this case. 48 impossible under those circumstances to comply with both state and federal law.

2020(Ibid.) In Wyeth v. Levine, supra, 555 U.S. at page 572 , a patient sued a drug manufacturer for a failure-to-warn claim after she developed gangrene and her arm had to be amputated as a result of her use of an antinausea drug.

2020In reaching its conclusion that the MDA does not preempt a failure-to-warn claim, the Coleman court relied largely on the Ninth Circuit’s decision in Stengel, supra, 704 F.3d 1224 . ( Coleman, supra, 223 Cal.App.4th at pp. 428-429.) That case concluded that: (1) a state-law tort claim based on a manufacturer’s failure to warn the FDA of problems with its 15 product is not preempted if state law recognizes a parallel duty, and (2) Arizona law recognizes such a duty.

2014(Stengel III, supra, 704 F.3d 1224 .) In our view, Coleman’s failure to warn claim cannot include a theory of off-label promotion because he would essentially be claiming that by promoting the off-label use of Infuse, Medtronic incurred a duty to warn plaintiff and his doctors about the risks of such use.

2020Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 945 , italics added.) But even where there is an express preemption clause, that clause “does not ‘entirely foreclose[] any possibility of implied pre-emption.’ ” (Id. at p. 944, quoting Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288 .) This is consistent with Bates, which “emphasize[d] that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre- emption.” (Bates, supra, 544 U.S. at p. 453 .) And, as we discussed earlier, it noted that if a f

2020Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 945 , italics added.) But even where there is an express preemption clause, that clause “does not ‘entirely foreclose[] any possibility of implied pre-emption.’ ” (Id. at p. 944, quoting Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288 .) This is consistent with Bates, which “emphasize[d] that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre- emption.” (Bates, supra, 544 U.S. at p. 453 .) And, as we discussed earlier, it noted that if a f

2020Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 945 , italics added.) But even where there is an express preemption clause, that clause “does not ‘entirely foreclose[] any possibility of implied pre-emption.’ ” (Id. at p. 944, quoting Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288 .) This is consistent with Bates, which “emphasize[d] that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre- emption.” (Bates, supra, 544 U.S. at p. 453 .) And, as we discussed earlier, it noted that if a f

2020Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 945 , italics added.) But even where there is an express preemption clause, that clause “does not ‘entirely foreclose[] any possibility of implied pre-emption.’ ” (Id. at p. 944, quoting Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288 .) This is consistent with Bates, which “emphasize[d] that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre- emption.” (Bates, supra, 544 U.S. at p. 453 .) And, as we discussed earlier, it noted that if a f

2020Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 945 , italics added.) But even where there is an express preemption clause, that clause “does not ‘entirely foreclose[] any possibility of implied pre-emption.’ ” (Id. at p. 944, quoting Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288 .) This is consistent with Bates, which “emphasize[d] that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre- emption.” (Bates, supra, 544 U.S. at p. 453 .) And, as we discussed earlier, it noted that if a f

2020Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 945 , italics added.) But even where there is an express preemption clause, that clause “does not ‘entirely foreclose[] any possibility of implied pre-emption.’ ” (Id. at p. 944, quoting Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288 .) This is consistent with Bates, which “emphasize[d] that a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre- emption.” (Bates, supra, 544 U.S. at p. 453 .) And, as we discussed earlier, it noted that if a f

2017The court quoted the savings clause in 21 U.S.C. § 379r(e) and concluded that this subdivision showed "Congress' intent to preserve state-law product liability actions with respect to non-prescription drugs...." ( Id. at p. 699.) The Supreme Judicial Court of Massachusetts came to the opposite conclusion in Reckis , supra , 471 Mass. 272 [ 28 N.E.3d 445 , 456], which addressed a failure to warn claim by a plaintiff who contracted TEN after ingesting Children's Motrin.

2017The court quoted the savings clause in 21 U.S.C. § 379r(e) and concluded that this subdivision showed "Congress' intent to preserve state-law product liability actions with respect to non-prescription drugs...." ( Id. at p. 699.) The Supreme Judicial Court of Massachusetts came to the opposite conclusion in Reckis , supra , 471 Mass. 272 [ 28 N.E.3d 445 , 456], which addressed a failure to warn claim by a plaintiff who contracted TEN after ingesting Children's Motrin.

2016(Stengel, at p. 1227.) Citing Hughes and Bausch, supra, 630 F.3d 546 , the court in Stengel concluded the plaintiff’s failure to warn claim rested “on a state-law duty that parallels a federal-law duty under the MDA, as in Lohr[, supra, 518 U.S. 470 ].” (Stengel, at p. 1233.) As such, the claim was not preempted.

1997These general obligations are no more a threat to federal requirements than would be a state-law duty to comply with local fire prevention regulations and zoning codes, or to use due care in the training and supervision of a workforce. (518 U.S. at p_ [ 116 S.Ct. at p. 2258 , 135 L.Ed.2d at p. 725 ], italics added.) The qualification is that the PMA process, although device specific, may include requirements that are too general to warrant preemption.

2023We have previously held that “[s]tatements by appellate courts ‘responsive to the issues raised on appeal and . . . intended to guide the parties and the trial court in resolving the matter following . . . remand’ are not dicta.” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158 .) Cameron expressly clarified why we elected to address the failure to warn claim at issue in that case, explaining that if the state was able to produce evidence showing the banking of the “S” turn was part of the approved design, “plaintiffs’ second contention” — i.e., their failure to warn claim — “wo

2023(See Campbell, supra, 32 Cal.3d at p. 120 .) As far as the failure to warn claim, the warning label on JLG’s scissor lift did not explicitly warn users to latch the chain, and the placard was six feet away from where the latch and the chain were located.

2021(Internet Brands, supra, 824 F.3d at p. 850 .) In determining that the claim was not barred, the Court of Appeals noted that the failure to warn claim did not seek to hold the website owner liable as the publisher or speaker of any user content.

2020(Stengel, at pp. 1232- 1233.) The Arizona Supreme Court subsequently rejected Stengel’s latter conclusion: “[E]stablished law does not recognize a claim merely for failing to provide something like adverse event reports . . . to a government agency.” (Conklin v. Medtronic, Inc. (Ariz. 2018) 431 P.3d 571, 579 .) But that does not mean that Coleman is no longer good law in California.

2020In reaching its conclusion that the MDA does not preempt a failure-to-warn claim, the Coleman court relied largely on the Ninth Circuit’s decision in Stengel, supra, 704 F.3d 1224 . ( Coleman, supra, 223 Cal.App.4th at pp. 428-429.) That case concluded that: (1) a state-law tort claim based on a manufacturer’s failure to warn the FDA of problems with its 15 product is not preempted if state law recognizes a parallel duty, and (2) Arizona law recognizes such a duty.

2017The savings or exemption from preemption provided by § 379r(e), however, does not extend beyond the provisions of § 379r, and in particular does not preclude 'the ordinary working of conflict pre-emption principles.' [Citation.] That is, even if the savings clause in § 379r(e)'removes tort actions from the scope of [an] express pre-emption clause' such as § 379r(a), the savings clause 'does not foreclose ... the possibility that a federal [law] will pre-empt a state common-law tort action with which it conflicts' [citation] ...." ( Ibid. [ 28 N.E.3d at p. 456 , fn. omitted].) The federal distr

2016(Stengel, at p. 1227.) Citing Hughes and Bausch, supra, 630 F.3d 546 , the court in Stengel concluded the plaintiff’s failure to warn claim rested “on a state-law duty that parallels a federal-law duty under the MDA, as in Lohr[, supra, 518 U.S. 470 ].” (Stengel, at p. 1233.) As such, the claim was not preempted.

2016(Stengel, at p. 1227.) Citing Hughes and Bausch, supra, 630 F.3d 546 , the court in Stengel concluded the plaintiff’s failure to warn claim rested “on a state-law duty that parallels a federal-law duty under the MDA, as in Lohr[, supra, 518 U.S. 470 ].” (Stengel, at p. 1233.) As such, the claim was not preempted.

2015(See Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 821 .) Accordingly, it appears as if summary judgment was properly ordered as to Dr. Green.

2015(Pittman v. Boiven (1967) 249 Cal.App.2d 207, 218 .) Hertz's counsel argued the sophisticated user defense to the jury advising them it was a complete defense to the failure to warn claim.

2014(Huitt, supra, 188 Cal.App.4th at p. 1604 ; Rutherford, supra, 16 Cal.4th at p. 968 ; Conte, supra, 168 Cal.App.4th at p. 112 ; CACI No. 1205.) Furthermore, the heeding presumption is not another label for a reasonable person test, as appellants contend; it is a doctrine which shifts the burden of proof regarding an essential element of a failure to warn claim. ( Coffman, supra, 133 N.J. at pp. 600-603.) There may be sound policies for adopting that doctrine, but in view of the law discussed above, this appeal is not the proper process for seeking such a change.

2014(Huitt, supra, 188 Cal.App.4th at p. 1604 ; Rutherford, supra, 16 Cal.4th at p. 968 ; Conte, supra, 168 Cal.App.4th at p. 112 ; CACI No. 1205.) Furthermore, the heeding presumption is not another label for a reasonable person test, as appellants contend; it is a doctrine which shifts the burden of proof regarding an essential element of a failure to warn claim. ( Coffman, supra, 133 N.J. at pp. 600-603.) There may be sound policies for adopting that doctrine, but in view of the law discussed above, this appeal is not the proper process for seeking such a change.

2014(Huitt, supra, 188 Cal.App.4th at p. 1604 ; Rutherford, supra, 16 Cal.4th at p. 968 ; Conte, supra, 168 Cal.App.4th at p. 112 ; CACI No. 1205.) Furthermore, the heeding presumption is not another label for a reasonable person test, as appellants contend; it is a doctrine which shifts the burden of proof regarding an essential element of a failure to warn claim. ( Coffman, supra, 133 N.J. at pp. 600-603.) There may be sound policies for adopting that doctrine, but in view of the law discussed above, this appeal is not the proper process for seeking such a change.

2014(Huitt, supra, 188 Cal.App.4th at p. 1604 ; Rutherford, supra, 16 Cal.4th at p. 968 ; Conte, supra, 168 Cal.App.4th at p. 112 ; CACI No. 1205.) Furthermore, the heeding presumption is not another label for a reasonable person test, as appellants contend; it is a doctrine which shifts the burden of proof regarding an essential element of a failure to warn claim. ( Coffman, supra, 133 N.J. at pp. 600-603.) There may be sound policies for adopting that doctrine, but in view of the law discussed above, this appeal is not the proper process for seeking such a change.

2014(Huitt, supra, 188 Cal.App.4th at p. 1604 ; Rutherford, supra, 16 Cal.4th at p. 968 ; Conte, supra, 168 Cal.App.4th at p. 112 ; CACI No. 1205.) Furthermore, the heeding presumption is not another label for a reasonable person test, as appellants contend; it is a doctrine which shifts the burden of proof regarding an essential element of a failure to warn claim. ( Coffman, supra, 133 N.J. at pp. 600-603.) There may be sound policies for adopting that doctrine, but in view of the law discussed above, this appeal is not the proper process for seeking such a change.

2014(Huitt, supra, 188 Cal.App.4th at p. 1604 ; Rutherford, supra, 16 Cal.4th at p. 968 ; Conte, supra, 168 Cal.App.4th at p. 112 ; CACI No. 1205.) Furthermore, the heeding presumption is not another label for a reasonable person test, as appellants contend; it is a doctrine which shifts the burden of proof regarding an essential element of a failure to warn claim. ( Coffman, supra, 133 N.J. at pp. 600-603.) There may be sound policies for adopting that doctrine, but in view of the law discussed above, this appeal is not the proper process for seeking such a change.