COVID-19 and the Heeding Presumption

Much has been written about the so-called “heeding presumption,” which allows a fact-finder to presume, in a failure-to-warn case, that a plaintiff would have heeded an adequate warning if one had been provided. When applied, the heeding presumption obviates the need for the plaintiff to introduce evidence to prove that she or he would have followed the warning that the defendant is alleged to have failed to give. Life science companies and the attorneys who defend them in failure-to-warn cases are well-acquainted with this doctrine that makes it easier for a plaintiff to meet one of his/her causation hurdles.

The heeding presumption does not exist in all states and jurisdictions, and it is beyond the scope of this short post to address its contours and nuances in various jurisdictions. In some states, such as New Jersey, the heeding presumption is rebuttable, meaning that if the defendant can introduce sufficient evidence, the court will not direct the jury to find that the failure to provide an adequate warning caused the plaintiff’s injury. In order to successfully rebut the heeding presumption in New Jersey, however, a defendant may not rely on anecdotal evidence that a plaintiff failed to follow a given warning, but instead must introduce evidence that raises the level of warning-indifference to more of a habit. Thus, smoking in contravention of repeated warnings on cigarette packs can be used to rebut the heeding presumption, but one or a few instances that a plaintiff drove a car without wearing the seat belt cannot.

Currently in our country – and elsewhere in the world – there are a number of changing recommendations and warnings about actions that should be taken, or conduct that should be avoided, to lessen the chances of contracting and/or spreading COVID-19. There are also an increasing number of examples of people choosing not to follow those recommendations and warnings. Without debating the merits or justifications of any of those actions, it is fair to consider whether the kinds of behavior displayed by people who choose not to follow official recommendations and warnings relating to COVID-19 is further evidence that the heeding presumption is not supported by empirical evidence. Perhaps, when faced with future failure-to-warn claims, companies might explore whether the plaintiffs in those cases followed all COVID-19-related warnings and recommendations to wear a mask, avoid crowds, social distance, remain at home, or whatever. And perhaps courts will recognize that if a plaintiff was unwilling to follow COVID-19-related warnings and recommendations, then that plaintiff should not be afforded the benefit of the heeding presumption in an unrelated failure-to-warn lawsuit.

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