Lysol Issues Warning to Protect Itself Against Law Suits; Law Makes Manufacturers Liable Even for Misuses of Their Products
Did Lysol Overreact?
WASHINGTON, D.C., (April 24, 2020) - Some may think that Lysol overreacted when it issued a warning about ingesting its product following a suggestion by President Trump that using disinfectants "inside" the body, by "injection" of otherwise, might help to fight the coronavirus pandemic.
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But lawyers who specialize is suing those who make products which injure others, including the users and bystanders, as well as law professors who teach products liability law, know better, says public interest law professor John Banzhaf, one of those teachers.
Many people will understand why the law in most states requires manufacturers to issue warnings about how to avoid injury while using products for their intended use; the warnings about the dangers of using caustic drain cleaners when cleaning drains, or of consuming too many over-the-counter drugs to treat medical problem, are common examples.
After all, it's likely that some purchasers will not take what many people would regard as common sense precautions and injure or even kill themselves or others as a result.
So it's reasonable to require manufacturers to provide appropriate warnings - something which can usually be done at little or no cost - or risk a law suit imposing liability for a civil wrong, a tort.
The Dangers Of Unintended Use Of A Product
But what some may find more difficult to understand is why a manufacturer like Lysol should be held liable for not warning about the dangers of using a product if the use is not one for which the product is intended, especially if such a use is bizarre if not crazy.
The answer is the same, says Banzhaf: out of hundreds of thousands if not millions of potential users, there will be some who will use the product in ways never intended by the manufacturer, but nevertheless possible for the company to foresee. In such cases there can be legal liability for failing to provide appropriate warnings against such uses, provided the uses are foreseeable.
So, as GWU law professor Jonathan Turley pointed out on his legal website, "Products must be designed to protect against foreseeable misuse."
Indeed, he notes that RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 (1998) - a semi-official and highly influential statement of the law - has determined that a product is DEFECTIVE if, "because of inadequate instructions or warnings when the FORESEEABLE RISKS of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe." [emphasis added]
Injury Resulting From Misuse Of A Product
In other words, as a leading court decision explained, "if the injury resulting from foreseeable misuse of a product is one which an adequate warning concerning the use of the product would likely prevent, such misuse is no defense" - even if the misuse is not only negligent but downright stupid and ridiculous, adds Banzhaf.
Sometimes manufacturers have to use their own ideas to imagine various unintended but nevertheless foreseeable uses of their products, and they may have to be very careful as well as precise.
For example, a manufacturer of household glue was held liable to a person who used it in a kitchen, and was burned when it caused a fire.
Although the label on the glue clearly warned against using the highly inflammable product near an open frame, the court nevertheless said the maker was liable because it failed to foresee, and therefore to warn, that some people might use it in a kitchen and not be aware - or simply overlook - that many gas ovens and stoves have tiny flames called pilot lights to ignite a burner when it is turned on.
But in this Internet age, manufacturers can also become aware - lawyers call it being put on notice - of a use which suddenly becomes foreseeable when it is widely promoted on the Internet.
A example which Turley points to is the recent Tide Pod Challenge.
While most unusual if not bizarre (and therefore previously unforeseeable) uses for a product widely circulated on the Internet result from juvenile challenges or suggestions, a recent source appears to be statements made by the President.
Ingesting Chloroquine To Cure COVID-19
For example, statements made by the President which suggested that ingesting chloroquine might help prevent and/or cure COVID-19 apparently caused a man to ingest a liquid used to clean his fish pond.
Thus a use for the pool-cleaning product which would have been completely unforeseeable - and therefore did want warrant or require a warning about ingestion - suddenly becomes foreseeable, explains Banzhaf.
The makers of Lysol apparently had the same concern when the President remarked that:
"So supposing we hit the body with a tremendous - whether it's ultraviolet or just a very powerful light - and I think you said that hasn't been checked because of the testing. And then I said, supposing you brought the light inside the body, which you can do either through the skin or some other way, and I think you said you're going to test that, too . . . I see the disinfectant that knocks it out in a minute, one minute. And is there a way we can do something like that by injection inside or almost a cleaning?"
So now arguably all manufacturers of disinfectants, for both home and industrial use, are on notice that people - including others with the same level of sophistication and/or intelligence as the fish owner - might try to ingest their product, "by injection inside" or otherwise, and would be wise to include a clear and conspicuous warning against any such use, suggests Banzhaf.
Professor Banzhaf, who is widely known for developing novel and successful theories of tort liability - winning over $10 million from McDonald's over its claims about french fries, recovering the money Agnew received in bribes, liability for secondhand tobacco smoke, etc. - has been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," an "Entrepreneur of Litigation, and a "Trial Lawyer's Trial Lawyer."