Constructing a Failure-to-Warn Case

A manufacturer’s own data can be one of your strongest tools. Obtaining it during discovery lays a powerful foundation for your client’s case.

Constructing a Failure-to-Warn Case is a practical roadmap for building products liability failure-to-warn claims by focusing discovery on the evidence a manufacturer is most likely to have—its own internal records.

Robert Zimmerman and John Lang explain how to use standards, testing history, design decisions, and other similar incidents to show what the company knew (or should have known) about a hazard, and how that knowledge should have been reflected in warnings and safety choices.

Key takeaways:

• Let the defendant’s documents prove knowledge. Target discovery toward design criteria, standards compliance, testing/field data, and incident tracking to establish notice and foreseeability.

• Standards are a baseline, not a shield. Trace the history of applicable standards and product changes over time to test “we complied” defenses and highlight what reasonable safety demanded.

• Other similar incidents (OSIs) can be the strongest proof. Well-scoped OSI discovery helps demonstrate recurring hazards and what the manufacturer did—or didn’t do—in response.

The full article is available here.

Reprinted with permission of Trial (December 2025), a publication of the American Association for Justice.