Also known as:marketing defects · failure to warn · inadequate instructions
Written by attorneys · grounded in primary & secondary sources — see below
A product defect arising from the failure to adequately warn of a potential risk of harm that is known or should have been known about a product or its foreseeable use. It also encompasses the failure to adequately instruct the user about how to use a product safely.
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Cases
Study Supplements
Dictionaries
How it applies
Common Examples
2
Prescription Drug Warning to Physician
PharmaCorp manufactured a prescription medication and provided detailed risk information to Dr. Patel about potential side effects. Dr. Patel reviewed the materials and prescribed the drug to patient Melanie Morris. When Melanie later suffered the warned-of side effect, she sued PharmaCorp claiming a marketing defect. Because the manufacturer had adequately warned the prescribing physician, the learned intermediary doctrine prevented liability for any failure to warn the patient directly.
Manufacturer Duty Satisfied Through Physician
DrugCo produced an antibiotic and supplied comprehensive safety data to Dr. Ramirez regarding known adverse reactions. Dr. Ramirez evaluated the information and prescribed the medication to patient Marco Marquez. After Marco experienced a documented reaction, he sued DrugCo for a marketing defect based on lack of direct patient warnings. The court held that the manufacturer's duty ran only to the learned intermediary physician, so no liability attached for failure to warn the patient.
Common questions
Frequently Asked
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What elements must a plaintiff prove to establish a marketing defect claim?+
A plaintiff must show that a risk of harm existed that was inherent in the product or its reasonably anticipated use, that the supplier knew or could reasonably foresee the risk when the product was marketed, that the product had a marketing defect, that the absence of a warning or instructions rendered the product unreasonably dangerous, and that the failure to warn caused the user's injury.
How does the learned intermediary doctrine affect marketing defect claims involving prescription drugs?+
The doctrine provides that a prescription drug manufacturer's duty to warn runs to the prescribing physician rather than directly to the patient. When the manufacturer adequately warns the physician of the drug's risks, the physician's independent medical judgment breaks the causal chain, and the manufacturer is not liable for failure to warn the patient directly.
Does a supplier's knowledge of a nonobvious danger trigger a duty to warn under marketing defect principles?+
Yes. A supplier that knows or has reason to know a product is likely dangerous for its intended use must use reasonable care to inform those it should expect to use the product or be endangered by it, unless the supplier has reason to believe users will realize the danger on their own.
Can a vague or subtle symbol on a product satisfy the duty to warn and avoid a marketing defect claim?+
No. When a supplier knows of a nonobvious hazard, a small embossed symbol or vague description is inadequate to convey the risk to ordinary users. The supplier must provide an explicit warning or instruction that reasonably informs users of the specific danger.
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