Heeding Presumption In NY Law? It Depends Who You Ask

Law360, New York (January 11, 2013, 12:22 PM EST) -- Few theories of liability are as elusive and difficult to defend against as "failure to warn." Given the hindsight borne of any accident, it is tempting to suggest, and for a jury to want to believe, that a few simple words of warning would have avoided a catastrophic consequence.

Moreover, failure to warn claims are favored by plaintiffs because they do not require the thorny analysis of the risk and utility of the product at issue that design defect claims present. “One simple sentence would have prevented this accident” is a powerful pitch for plaintiff’s counsel, and it is one of the hardest arguments for defense counsel to respond to in front...

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