Remember to Explore a Plaintiff’s Pandemic Actions

Recently, we offered some thoughts about the heeding presumption in light of recent news reports of Americans acting in ways that are contrary to public health recommendations. Since then, the CDC published a report of a survey conducted of approximately 500 U.S. adults regarding their understanding and use of some chemical cleaning products and practices. Some of the reported results are shocking – even to those who profess to no longer be surprised by any unwise behaviors that people might engage in. For example, the CDC reported that 19 percent of respondents reported applying bleach to food items such as fruits and vegetables, 10 percent reported misting themselves with cleaning or disinfectant sprays, and 4 percent reported “drinking or gargling diluted bleach solutions, soapy water, and other cleaning and disinfectant solutions.”

It is likely that the cleaning products used by these survey respondents in these ways contained warnings and instructions that cautioned against such or similar uses. If any of the people who misused these products suffer ill consequences and bring legal claims against the product manufacturers, then certainly part of the defense that will be mounted will be the failure of those claimants to follow the warnings and instructions provided.

But beyond such a direct relationship between misuse of a product, failure to heed given warnings, and a defense against an injured person’s claims, there may be a broader consideration of which to take note. In those states that afford a failure-to-warn plaintiff the benefit of a rebuttable presumption that if an adequate warning had been given, it would have been heeded by the plaintiff, exploration during discovery of how that plaintiff may have acted during the COVID-19 pandemic may give rise to useful examples of warning-contrary behaviors that can be used at trial to rebut the heeding presumption. Of course, the first and foremost inquiry in any failure-to-warn lawsuit is whether the plaintiff followed the warnings and instructions for the specific product that is at issue in the case. But defense counsel should think broadly and creatively during discovery about what else that particular plaintiff may have done. This could include that plaintiff’s social behaviors – did the plaintiff ignore public health guidance to gather in groups or contravene social-distancing recommendations? As well as the plaintiff’s personal hygiene and cleaning practices – did the plaintiff clean food or gargle with bleach?

Quite frankly, before the events of COVID-19, none of us probably ever considered questioning a plaintiff about the use of bleach as a mouthwash. But the more evidence that can be developed that a particular plaintiff failed to follow warnings and instructions, even if unrelated to the particular product at issue in that plaintiff’s failure-to-warn lawsuit, the stronger case that can be built to rebut and impact of any otherwise-applicable heeding presumption that the plaintiff might be afforded.

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