The NAM joined with the American Tort Reform Association and the Louisiana Association of Business and Industry in an amicus brief 6/30/2000 urging the Louisiana Supreme Court to review lower court rulings and reverse decisions that held a tool company legally obligated to issue a post-sale warning about its product even though (1) the product was not being used in its originally intended use, (2) the product had been subjected to substantial and repeated abuse, (3) there had never been a similar accident or complaint since 1958, (4) there was no proof the company knew of the risk alleged, and (5) there was no evidence that a warning would have prevented the injury.
Our brief warned that the lower courts' vague and open-ended new duty theory would subject products to liability long after they were sold, without notice, and without regard to how the product was used. We urged the court to adopt a mainstream standard as set forth in the Restatement (Third) of Torts: Product Liability. This standard considers 4 critical guideposts to determine whether a reasonable seller would provide a post-sale warning: (1) if the seller knows or reasonably should know that the product poses a substantial risk of harm, (2) buyers can be identified and are unaware of the risk, (3) a warning can be effectively communicated and acted upon, and (4) the risk of harm is sufficiently great to justify the burden of providing a warning. In this case, these factors would not impose a duty to warn on the manufacturer.
On Nov. 13, 2000, the Louisiana Supreme Court declined to hear this appeal.