We confess, we can't think of any good reason for admitting
evidence concerning product risks that the plaintiff in a
particular case never actually encountered – yet plaintiffs
try it with a straight face all the time. It's another example
of plaintiffs throwing mud against the wall to see if it will
stick; anything to divert attention from a weak merits case
concerning the injuries actually being claimed.
Sometimes plaintiffs argue that, even though they never
encountered a particular risk, it was so severe and downright scary
that if they had only been warned about that risk, they
wouldn't have used the product. Trouble is, while that argument
could be causal in a "but for" sense (assuming plaintiffs
aren't lying), it's not causal in the legal, or proximate,
sense. One of the major tort treatises explains the difference:
