Texas PJC Malpractice 2022

PJC 71.5

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

PJC 71.5

Defect in Warnings or Instructions (Marketing Defect)

QUESTION ______ Was there a defect in the [ warnings ] [ instructions ] at the time the automobile left the possession of ABC Company that was a producing cause of the [ injury ] [ occurrence ] in question? A “defect in the warnings” means the failure to give adequate warnings of the product’s dangers that were known or by the application of reasonably developed human skill and foresight should have been known and which fail ure rendered the product unreasonably dangerous as marketed. [or] A “defect in the instructions” means the failure to give adequate instructions to avoid the product’s dangers that were known or by the application of reason ably developed human skill and foresight should have been known and which failure rendered the product unreasonably dangerous as marketed. “Adequate” [ warnings ] [ instructions ] means [ warnings ] [ instructions ] given in a form that could reasonably be expected to catch the attention of a reason ably prudent person in the circumstances of the product’s use; and the content of the [ warnings ] [ instructions ] must be comprehensible to the average user and must convey a fair indication of the nature and extent of the danger and how to avoid it to the mind of a reasonably prudent person. An “unreasonably dangerous” product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product with the ordinary knowledge common to the community as to the product’s characteristics. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 71.5 should be used if the plaintiff seeks to recover on the the ory of marketing defect for the defendant’s failure to warn or failure to adequately warn or instruct for safe use of the product. The duty to warn and instruct for safe use in connection with marketing a product is determined by the dangers inherent in the product or associated with its foreseeable use. Bristol-Myers Co. v. Gonzales , 561 S.W.2d 801, 804 (Tex. 1978); Technical Chemical Co. v. Jacobs , 480 S.W.2d 602, 605

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