We've made no secret of our dislike of the so called
"heeding presumption." We have a
tag on this subject with multiple posts decrying this
presumption — that juries may presume that if an alternative
adequate warning had been given, it would have been heeded by the
plaintiff (or, in prescription medical product cases, the
prescriber). That is essentially a shift of the burden of proof on
warning causation from plaintiffs to defendants without any
justification. Warnings are ignored all the time.
Our posts note that it is a fairly even split between
jurisdictions rejecting and those adopting the heeding presumption.
But we've taken special note of New York law on the issue
because it is a bit muddled. In a
post a couple of years ago we explained how a bad Second
Circuit decision on the issue (Liriano v. Hobart Corp.,
170 F.3d 264 (2d Cir. 1999)) overreached and ignored New York state
court precedent spawning a line of cases which purport to recognize
a general
