Ted Kelso sued Bayer Corporation for strict product liability, alleging that the warning Bayer provided on its Neo-Synephrine 12 Hour Extra Moisturizing Spray was defective. * * * Ted Kelso began using Neo-Synephrine 12 Hour Extra Moisturizing Spray in 1990. He used Neo-Synephrine continuously for more than three years. After learning that his continued use of the product caused permanent
Ted Kelso sued Bayer Corporation for strict product liability, alleging that the warning Bayer provided on its Neo-Synephrine 12 Hour Extra Moisturizing Spray was defective. * * * Ted Kelso began using Neo-Synephrine 12 Hour Extra Moisturizing Spray in 1990. He used Neo-Synephrine continuously for more than three years. After learning that his continued use of the product caused permanent nasal tissue damage requiring multiple sinus surgeries, he sued Bayer, the manufacturer of Neo-Synephrine, alleging Bayer failed to adequately warn him of the dangers associated with Neo-Synephrine.
Bayer moved for summary judgment, arguing that the warning it provided, as follows, was adequate, as a matter of law:
‘‘Do not exceed recommended dosage.’’
‘‘Stop use and ask a doctor if symptoms persist. Do not use this product for more than 3 days. Use only as directed. Frequent or prolonged use may cause nasal congestion to recur or worsen.’’
The district court agreed and granted Bayer summary judgment. Kelso appeals. * * *
Kelso argues that summary judgment was inappropriate because he presented sufficient evidence to recover in a product liability action against Bayer. ‘‘To recover in a product liability action, a plaintiff must plead and prove that the injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer’s control.’’ [Citation.] A product may be unreasonably dangerous because of a design defect, a manufacturing defect, ‘‘or a failure of a manufacturer to warn of a danger or instruct on the proper use of the product as to which the average consumer would not be aware.’’ [Citation.]
Kelso claims the Neo-Synephrine was unreasonably dangerous because Bayer’s warning was confusing as to whether or not the product could be used safely for more than three days, when such use was effective in relieving his congestion. * * * Kelso * * * interpreted the warning as meaning not to exceed three days use if the product failed to relieve the congestion; he only needed to see a physician if the product did not work to relieve the congestion. Also, because the container included much more than three days’ dosage, Kelso insists that he had good reason to believe that he could safely use Neo-Synephrine for more than three days.
However, Kelso’s personal reaction to the warning is not the test. Whether a warning is sufficient ‘‘is determined using an objective standard, i.e., the awareness of an ordinary person.’’ [Citation.] Here, the plain, clear and unambiguous language of the warning states: ‘‘Do not use this product for more than 3 days.’’ Period. That the Neo-Synephrine container included doses sufficient to treat multiple users or multiple colds in no way takes away from the clear impact of the warning. Moreover, the warning clearly informs users to: ‘‘Stop use and ask a physician if symptoms persist.’’ The warning was clear. Yet Kelso continued using the product well beyond the three days. It is unreasonable to create an ambiguity that excuses extended use when the warning against such use is unequivocal.
Kelso also argues that the warning was inadequate because it did not warn users that the product could also cause permanent nasal tissue damage and also had a risk of habituation (meaning that users would become dependent on the product, causing them to use the product for more than three days). However, under Illinois law, a manufacturer need not warn of all possible consequences of failing to follow a primary warning. [Citation.] Here, the primary warning told consumers ‘‘not [to] use this product for more than 3 days.’’ That was sufficient under Illinois law. However, Bayer’s warning went even further, informing consumers of the consequence of extended use, stating: ‘‘[f]requent or prolonged use may cause nasal congestion to recur or worsen.’’ Although Kelso believes the warning should have provided him with more detailed information, Illinois law does not require more. [Citation.] Therefore, Kelso’s defective warning claim fails.
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Smith and Roberson Business Law
Authors: Richard A. Mann, Barry S. Roberts