The Federalist Society

Warning to Trial Lawyers: Read the Law -- The Federal Law -- Before Proceeding

October 1, 2003

Lawrence S. Ebner, Douglas T. Nelson

In the world of toxic tort suits, “failure to warn” can be a trial lawyer’s fastest road to success. A plaintiff, with the aid of an attorney, files a state court suit alleging that use of some toxic chemical, let’s say a pesticide, caused his chronic illness. The boilerplate complaint alleges that the pesticide’s manufacturer is liable under state law because it failed to warn him about the risks of using the product. At trial, a well paid expert testifies that the warnings and precautions on the pesticide product’s labeling were inadequate. The sympathetic jury, with the benefit of hindsight (“if only the plaintiff had been warned, he would not have used the product”), awards hundreds of thousands of dollars in compensatory and punitive damages.

Warning to Trial Lawyers: Read the Law -- The Federal Law -- Before Proceeding  


The Federalist Society