This article was updated on June 2023.
A plaintiff asserting a failure to warn product liability claim based in strict liability must show the failure to warn actually caused the plaintiff’s injuries. This is an easier task for plaintiffs in states that recognize the “heeding presumption” doctrine.
Under the heeding presumption, when a plaintiff shows the absence of an adequate warning, it is presumed the plaintiff would have heeded an adequate warning if the manufacturer had provided one. This shifts the burden to the defendant to prove the plaintiff would not have followed the warning. In the United States (including Puerto Rico and the District of Columbia), sixteen (16) states expressly recognize the heeding presumption, with some applying the doctrine in more limited circumstances than others. The remainder of the states have either expressly rejected it or they have not definitively addressed it. This survey sets forth the status of the heeding presumption doctrine in each state.
Alabama does not recognize the heeding presumption. Barnhill v. Teva Pharms. USA, Inc., 819 F. Supp. 2d 1254, 1262 (S.D. Ala. 2011) (“Alabama courts have not recognized such a [heeding] presumption”) (citing Deere & Co. v. Grose, 586 So. 2d 196, 198 (Ala. 1991)).
No Alaska state court has expressly adopted the heeding presumption. While the Alaska Supreme Court touched in the issue in dicta, the Ninth Circuit predicted that Alaska would adopt the presumption. Ross Lab’ys v. Thies, 725 P.2d 1076, 1079 (Alaska 1986) (requiring evidentiary support from defendants to prove that “[plaintiff was] incapable of understanding an adequate warning or that such a warning would not have been heeded by them”); Ellis v. Coleman Co., Inc., No. 99-35341, 2000 WL 1131893, at *2 (9th Cir. Aug. 9, 2000) (predicting that the Alaska Supreme Court would adopt the heeding presumption given its history of adopting Restatement provisions). No Alaska court has yet followed Ellis’ prediction.
Arizona recognizes the heeding presumption. Golonka v. General Motors Corp., 65 P.3d 956, 968-69 (Ariz. Ct. App. 2003) (“[T]he heeding presumption is viable in Arizona”). The Arizona Supreme Court has yet to rule on this issue.
Arkansas recognizes the heeding presumption. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 842 (8th Cir. 2001) (“Under Arkansas law, once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded an adequate warning”) (citing Bushong v. Garman Co., 843 S.W.2d 807, 811 (1992)); In re Prempro Prod. Liab. Litig., 586 F.3d 547, 569 (8th Cir. 2009) (applying the heeding presumption to pharmaceutical products) (applying Arkansas law).
California does not recognize the heeding presumption. Motus v. Pfizer Inc., 196 F. Supp. 2d 984, 991 (C.D. Cal. 2001) (“[T]he plaintiff… bears the full burden of proving through affirmative evidence that the inadequate warning was the proximate cause of the injury…”); Roshkovan v. Bristol-Myers Squibb Co., No. ED CV 21-8590, 2022 WL 3012519, at *9 (C.D. Cal. June 22, 2022) (applying Motus).
Colorado recognizes the heeding presumption. Lynch v. Olympus Am., Inc., No. 18-cv-00512, 2019 WL 2372841, at *18 n.7 (D. Colo. June 1, 2019) (citing Uptain v. Huntington Lab., Inc., 723 P.2d 1322, 1326 (Colo. 1986)).
Connecticut does not recognize the heeding presumption. Connecticut General Statutes § 52–572q(c) provides that “the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered harm.” Conn. Gen. Stat. Ann. § 52-572q(c) (2023); see also DeJesus v. Craftsman Mach. Co., 548 A.2d 736, 744 (Conn. App. Ct. 1988) (stating that the statutory language is clear that no presumption arises in favor of the plaintiff); Battistoni v. Weatherking Prods., Inc., No. CV 92 0059579, 1994 WL 563429, at *2 (Conn. Super. Ct. Oct. 5, 1994) (“Merely establishing that there was a failure to warn by a product’s distributor does not create a presumption of proximate cause.”) (citing DeJesus), rev’d on other grounds, 687 A.2d 890.
Delaware does not recognize the heeding presumption. Delaware recognizes strict liability in contracts via express or implied warranties but does not recognize strict tort liability. Cline v. Prowler Indus. of Md., Inc., 418 A.2d 968, 978 (Del. 1980) (stating that the Delaware General Assembly intended to preclude the adoption of strict tort liability with the sales warranty theory included in the U.C.C.); White v. A.P.P. Pharms., LLC, No. N10C-04-061, 2011 WL 2176151, at *2 (Del. Super. Ct. Apr. 7, 2011) (“Delaware does not recognize a strict liability cause of action in a products liability suit when the product is sold”).
DISTRICT OF COLUMBIA
The District of Columbia recognizes the heeding presumption. East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1124 (D.C. 1990) (stating that the jurisdiction has adopted “‘a rebuttable presumption that the user would have read an adequate warning, and in the absence of evidence rebutting the presumption, a jury may find that the defendant’s product was the producing cause of the plaintiff’s injury.’”) (quoting Payne v. Soft Sheen Prods., Inc., 486 A.2d 712, 735 (D.C. 1985)).
No Florida state court has expressly adopted the heeding presumption, but some state and federal courts applying Florida law have discussed it in passing. Giddens v. Denman Rubber Mfg. Co., 440 So.2d 1320, 1323 (Fla. Dist. Ct. App. 1983) (“Where warning is given, the seller may reasonably assume that it will be read and heeded”) (quoting Restatement (Second) of Torts § 402A cmt. j (Am. L. Inst. 1965)); Pringle v. Johnson & Johnson, No. 13-81022-CIV, slip op. at *5 (S.D. Fla. Jan. 30, 2020) (discussing the heeding presumption but declining to apply it to a learned intermediary case).
Georgia does not recognize the heeding presumption. Dozier Crane & Mach., Inc. v. Gibson, 644 S.E.2d 333, 336 (Ga. Ct. App. 2007) (“[W]here there is no evidence that a plaintiff read the allegedly inadequate warning, causation cannot be shown.”).
No Hawaii state court has expressly adopted the heeding presumption. But see Forsyth v. Eli Lilly & Co., No. Civ. 95-00185,1998 WL 35152135, at *5 (D. Haw. Jan. 5, 1998) (citing to Oklahoma case recognizing heeding presumption to hold that material issues of fact exist and deny summary judgment to plaintiff).
No Idaho state court has expressly addressed the issue of whether to adopt the heeding presumption. But see Richardson v. Bayer Healthcare Pharms. Inc., No. 15-cv-00443,2016 WL 4546369, at *8 (D. Idaho Aug. 30, 2016) (noting that under Idaho law, a medical device manufacturer’s failure to disclose the necessary risks to the FDA is an issue for the trier of fact to determine the “adequacy” of the warning and “the plaintiffs will ultimately have the burden of proving the ‘inadequacy’ of the FDA’s warnings”).
No Illinois state court has expressly adopted the heeding presumption, but at least one federal district court found that the heeding presumption applies to learned intermediary cases in Illinois. Compare In re Depakote, No. 14-CV-847, 2015 WL 4775864, at *7 (S.D. Ill. Mar. 15, 2015) (noting that “[t]he issue of whether Illinois applies the heeding presumption has not been clearly addressed by the Illinois Supreme Court” but applying it to a learned intermediary case), with Walker v. Macy’s Merch. Grp., Inc., 288 F. Supp. 3d 840, 866-67 (N.D. Ill. 2017) (declining to extend the heeding presumption to cases not involving a learned intermediary or a defective pharmaceutical product).
Indiana recognizes the heeding presumption. Ford Motor Co. v. Rushford, 868 N.E.2d 806, 811 (Ind. 2007) (“‘Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonable dangerous.’”) (quoting Dias v. Daisy-Heddon, 390 N.E.2d 222, 225 (Ind. Ct. App. 1979)) (following Restatement (Second) of Torts § 402A cmt. j (1976)). The presumption may be rebutted if the manufacturer provides evidence that even if an adequate warning was provided, the user still would not have read it. Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1168 n.6 (Ind. Ct. App. 1988).
No Iowa state court has expressly adopted the heeding presumption, but some federal district courts have found that Iowa does recognize the presumption. Huck v. Wyeth, Inc., 850 N.W.2d 353, 403 n.7 (Iowa 2014) (noting that that a majority of jurisdictions recognize the heeding presumption but declining to address that issue in this case); Rowson v. Kawasaki Heavy Indus., 866 F. Supp. 1221, 1238 (N.D. Iowa 1994) (concluding that “where plaintiff proves that a warning is inadequate, either in content or presentation, a presumption arises that plaintiff would have heeded an adequate warning.”).
Kansas recognizes the heeding presumption. Wooderson v. Ortho Pharm. Corp., 681 P.2d 1038, 1042 (Kan. 1984) (“There is a presumption that an adequate warning would be heeded. This operates to the benefit of a manufacturer where adequate warnings are in fact given. Where warnings are inadequate, however, the presumption is in essence a presumption of causation.”).
No Kentucky state court has expressly adopted the heeding presumption, but at least one federal district court has found that Kentucky recognizes the presumption. Snawder v. Cohen, 749 F. Supp. 1473, 1479-80 (W.D. Ky. 1990) (“Although this Court can find no Kentucky case which affirmatively applies this [heeding] presumption, Kentucky has adopted § 402A of the Restatement of Torts 2d. The presumption is formulated in comment j of that section and presumably would be followed by the Kentucky courts.”).
Louisiana recognizes the heeding presumption. Bloxom v. Bloxom, 512 So.2d 839, 850 (La. 1987) ([W]hen a manufacturer fails to give adequate warnings or instructions, a presumption arises that the user would have read and heeded such admonitions.”); Breaux v. Goodyear Tire & Rubber Co., 320 So.2d 1197, 1204 (La. Ct. App. 2021) (applying Bloxom).
No Maine state court has expressly adopted the heeding presumption, but at least one federal court has found that Maine recognizes the presumption. Koken v. Black & Veatch Constr., Inc., 426 F.3d 39, 50 (1st Cir. 2005) (“We agree that such a presumption exists in Maine law.”) (citing Bernier v. Raymark Indus. Inc., 516 A.2d 534, 538 (Me. 1986)); but see Novak v. Mentor Worldwide LLC, 287 F. Supp. 3d 85, 96 (D. Me. 2018) (declining to recognize the presumption in learned intermediary prescription medical device case).
Maryland recognizes the heeding presumption. United States Gypsum Co. v. Mayor of Baltimore, 647 A.2d 405, 413 (Md. 1994); Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d 445, 468-69 (Md. 1992).
Massachusetts recognizes the heeding presumption. Evans v. Lorillard Tobacco Co., 990 N.E.2d 997, 1023-24 (Mass. 2013) (“In Massachusetts, ‘[t]he law permits an inference that a warning, once given, would have been followed.’”).
Michigan only recognizes the heeding presumption when the user of the product is deceased. Compare Allen v. Owens-Corning Fiberglass Corp., 571 N.W.2d 530, 535 (Mich. Ct. App. 1997) (“When… the lack of warning is undisputed, and the person exposed is dead, the jury may be permitted to infer that a warning would have been heeded and that the failure to warn was a proximate cause of the injury.”), with Muilenberg v. Upjohn Co., 320 N.W.2d 358, 366 (Mich. Ct. App. 1982) (“[T]he plaintiff does have the burden of proving that had [the prescriber] been adequately warned he would have pursued a course of treatment to avoid or reduce injury.”).
Minnesota does not recognize the heeding presumption. Yennie v. Dickey Consumer Prods., Inc., No. C1-00-89, 2000 WL 1052175, at *1 (Minn. Ct. App. Aug. 1, 2000).
Mississippi does not recognize the heeding presumption. Wyeth Lab’ys, Inc. v. Fortenberry, 530 So.2d 688, 691 (Miss. 1988) (“Assuming arguendo that the warning was inadequate, [the plaintiff] still had the burden of showing that an adequate warning would have altered [his doctor’s] conduct.”); Harris v. Int’l Truck & Engine Corp., 912 So.2d 1101, 1109 (Miss. Ct. App. 2005).
Missouri recognizes the heeding presumption. Moore v. Ford Motor Co., 332 S.W.3d 749, 762-63 (Mo. 2011); Bachtel v. TASER Int’l, Inc., 747 F.3d 965, 971 (8th Cir. 2014) (“Missouri law supplies a heeding presumption ‘if the plaintiff shows that no warning was given’ and where there is a ‘legitimate jury question whether [the user] did not already know the danger.’”) (applying Missouri law).
Montana only recognizes the heeding presumption when the user of the product is deceased. Compare Riley v. Am. Honda Motor Co., 856 P.2d 196, 199 (Mont. 1993) (declining to adopt the heeding presumption for a living plaintiff), with Patch v. Hillerich & Bradbsy Co., 257 P.3d 383, 389-90 (adopting a “flexible standard of proof” to satisfy causation, and agreeing that “where… the lack of warning is undisputed, and the person…is dead, the jury may be permitted to infer that a warning would have been heeded and that the failure to warn was a proximate cause of the injury.”) (quoting Schutte v. Celotex Corp., 492 N.W.2d 773, 777 (Mich. Ct. App. 1992)).
No Nebraska state court has expressly adopted the heeding presumption, but some federal courts have applied the Restatement (Second) of Torts § 402A comment j—commonly viewed as the origin of the heeding presumption—to analyze questions of Nebraska law. Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 299 (8th Cir. 1996) (analyzing the adequacy of present warnings) (applying Nebraska law).
As a matter of first impression, the Nevada Supreme Court rejected the heeding presumption in strict products liability failure-to-warn cases. Rivera v. Philip Morris, Inc., 209 P.3d 271, 274 (Nev. 2009). The court reasoned that “public policy is best served by [its] rejecting the heeding presumption” and “not to encourage a reliance on warnings.” Id. at 277. Thus, the plaintiff bears the burden of production and must prove that the inadequate warning caused his injuries. Id. at 273.
No New Hampshire state court has expressly adopted the heeding presumption. Bartlett v. Mut. Pharm. Co., Inc., 731 F. Supp. 2d 135, 147 (D.N.H. 2010) (“Whether that so-called ‘heeding presumption’ applies under New Hampshire law is questionable.”) (citing Wilson v. Bradlees of New Eng., Inc., 250 F.3d 10, 16 (1st Cir. 2001) (applying New Hampshire law), which recognized that the New Hampshire Supreme Court had not yet adopted the heeding presumption), aff’d on other grounds, 678 F.3d 30 (1st Cir. 2012), rev’d on other grounds, 570 U.S. 472 (2013).
New Jersey recognizes the heeding presumption. Coffman v. Keene Corp., 628 A.2d 710, 717-19 (N.J. 1993). However, the presumption “is primarily applicable in circumstances in which plaintiff lacks the ability to prove by direct evidence that a proper warning, if given, would have been heeded.” McDarby v. Merck & Co., 949 A.2d 223, 267-69 (N.J. Super. Ct. App. Div. 2008).
No New Mexico court has expressly adopted the heeding presumption. While some courts applying New Mexico law have hinted at adopting the presumption, committee commentary on New Mexico’s Uniform Jury Instructions expresses concerns with evidentiary problems presented by it. Skyhook Corp. v. Jasper, 560 P.2d 934, 938 (N.M. 1977) (stating that a seller “could reasonably assume that [a] warning would be read and heeded”); Magoffe v. JLG Indus., Inc., No. CIV 06-0973, 2008 WL 2967653, at *33 (D.N.M. May 7, 2008) (mentioning possibility of presumption); UJI 13-1419 comm. cmt. NMRA (2023).
Federal courts have disagreed in recent years about whether New York law recognizes the heeding presumption. Compare Vuksanovich v. Airbus Ams., Inc., 608 F. Supp. 3d 92, 113 (S.D.N.Y. 2022) (“New York law also provides for ‘a presumption that a user would have heeded warnings if they had been provided’”), with Buoniello v. Ethicon Women’s Health and Urology, No. 19-cv-4021, 2022 WL 17784995, at *11 (E.D.N.Y. Aug. 18, 2022) (“It is incumbent upon the plaintiff to demonstrate that ‘a warning, reasonably required, would have been heeded.’”). However, most federal courts applying New York law follow its high court’s latest word, provided in dicta, that New York does not recognize the heeding presumption. In re N.Y.C. Asbestos Litig., 59 N.E. 458, 482 (N.Y. 2016) (stating that “trial courts must continue to ensure that their jury instructions honor the principle that the burden of proving proximate causation, which in a case like this one includes the burden of demonstrating that the injured party would have heeded warnings, falls squarely on plaintiffs.”).
North Carolina prohibits strict liability, N.C. G.S.A. §99B-1.1, and expressly imposes on plaintiffs the burden of proving causation in warning cases. N.C. G.S.A. §99B-5(a).
North Dakota recognizes the heeding presumption. Butz v. Werner, 438 N.W.2d 509, 517 (N.D. 1989) (“We conclude that when no warning is given the plaintiff is entitled to the benefit of a presumption that an adequate warning, if given, would have been read and heeded.”); Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 410 (N.D. 1994).
Ohio recognizes the heeding presumption despite its statutory abolition of common-law product liability causes of action and no statutory creation of the presumption. Seley v. G.D. Searle & Co., 423 N.E.2d 831, 838 (Ohio 1981) (adopting the heeding presumption in Ohio); Ohio Rev. Code Ann. § 2307.71(B) (West 2023) (“[This section is] intended to abrogate all common law product liability claims or causes of action.”); Coon v. Pfizer, Inc., No. 17-CV-125, 2019 WL 632273, at *2 (S.D. Ohio Feb. 14, 2019) (applying Seley post-section 2307.71(B)’s enactment).
Oklahoma recognizes the heeding presumption. Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1382 (Okla. 1974); AlNahhas v. Robert Bosch Tool Corp., 706 F. App’x 920, 940 (10th Cir. 2017) (applying Oklahoma law).
Oregon does not recognize the heeding presumption. McPike v. Enciso’s Cocina Mejicana, Inc., 762 P.2d 315, 319 (Or. Ct. App. 1988); Parkinson v. Novartis Pharms. Corp., 5 F. Supp. 3d 1265, 1272 (D. Or. 2014) (“[T]here is not a presumption under Oregon law that an adequate warning would have been read and prevented the harm.”).
Pennsylvania recognizes the heeding presumption only in employment-related situations. Viguers v. Phillip Morris USA, Inc., 2003 PA Super 446, ¶ 9 (“Plaintiffs who are exposed to asbestos and other products as a condition of their employment have little choice but to be in an environment where the asbestos or other products are present; therefore, public policy would favor the application of an evidentiary presumption in their favor where no or inadequate warnings are given.”). Furthermore, the heeding presumption does not apply in prescription medical product cases because, under Pennsylvania law, strict liability does not apply to such cases. Fecho v. Eli Lilly & Co., 914 F. Supp. 2d 130, 145-47 (D. Mass. 2012) (applying Pennsylvania law).
No Puerto Rico court has expressly recognized the heeding presumption under Puerto Rico law.
No Rhode Island court has expressly recognized the heeding presumption, but they have adopted the Restatement (Second) of Torts § 402A—with a comment therein commonly viewed as the origin of the heeding presumption—to analyze questions of Rhode Island strict liability law. Swajian v. Gen. Motors Corp., 559 A.2d 1041, 1044 (R.I. 1989).
South Carolina does not recognize the heeding presumption. Odom v. G.D. Searle & Co. 979 F.2d 1001, 1003 (4th Cir. 1992) (applying South Carolina law); see also Sauls v. Wyeth Pharms. Inc., 846 F. Supp. 2d 499, 503 (D.S.C. 2012).
No South Dakota state court has expressly adopted the heeding presumption. However, the Eighth Circuit Court of Appeals predicted that South Dakota would follow the heeding presumption, currently binding the United States District Court for the District of South Dakota to that stance. Schilf v. Eli Lilly & Co., 687 F.3d 947, 949 (8th Cir. 2012) (“It is likely that South Dakota would adopt this [heeding] presumption.”); see also Foster v. Ethicon, Inc., 529 F. Supp. 3d 992,999 (D.S.D. 2021) (“The Eighth Circuit’s prediction in Schilf that South Dakota would apply the heeding presumption binds this Court absent an intervening decision by the Supreme Court of South Dakota indicating that the prediction in Schilf was wrong.”).
Tennessee has not adopted the heeding presumption. Payne v. Novartis Pharms. Corp., 767 F.3d 526, 533 (6th Cir. 2014).
Texas recognizes the heeding presumption in limited instances. Although Texas was the first state to recognize the presumption in Tech. Chem. Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972), later decisions have specified that it does not apply to cases involving prescription medical products. Ackermann v. Wyeth Pharms., 526 F.3d 203, 212-13 (5th Cir. 2008) (applying Texas law).
Utah recognizes the heeding presumption. House v. Armour of Am., Inc., 929 P.2d 340, 347 (Utah 1996); Tingey v. Radionics, 193 F. App’x 747, 759 (10th Cir. 2006) (extending the heeding presumption to medical devices) (applying Utah law).
Vermont recognizes the heeding presumption. Menard v. Newhall, 373 A.2d 505, 506 (Vt. 1977) (holding that after a plaintiff establishes a duty to warn and that inadequate warnings were provided, “a presumption is created that [the product user] would have read the warning and heeded it.”); Leavitt v. Ethicon, Inc., 524 F. Supp. 3d 360, 370 (D. Vt. 2021) (applying Menard).
“…Virginia does not observe a heeding presumption…” Ford Motor Co. v. Boomer, 736 S.E.2d 724, 733 (Va. 2013) (footnote omitted).
Washington does not recognize the heeding presumption. Luttrell v. Novartis Pharms. Corp., 894 F. Supp. 2d 1324, 1345 n.16 (E.D. Wash. 2012), aff’d, 555 F. App’x 710 (9th Cir. 2014).
“[T]he West Virginia Supreme Court of Appeals has never adopted a heeding presumption.” Muzichuck v. Forest Lab’ys, Inc., No. 07CV16, 2015 WL 235226, at *13 (N.D.W. Va. 2015).
The Wisconsin Supreme Court has not directly addressed the issue of whether to adopt the heeding presumption. As a result, Wisconsin state courts and federal courts applying Wisconsin law have disagreed about whether it applies. Compare In re Zimmer, Nexgen Knee Implant Prods. Liab. Litig., 884 F.3d 746, 754 (7th Cir. 2018) (“We seriously doubt that [Wisconsin state courts] would adopt [the heeding presumption] in this context.”) (applying Wisconsin law), and Kurer v. Parke, Davis & Co., 679 N.W.2d 867, 876 (Wis. Ct. App. 2004), with Rogers v. K2 Sports, LLC, 348 F. Supp. 3d 892, 904 (W.D. Wis. 2018) (“There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.”), and Michaels v. Mr. Heater, Inc., 411 F. Supp. 992, 1006 (W.D. Wis. 2006).
No Wyoming state court has expressly adopted the heeding presumption, but federal courts applying Wyoming law have predicted that the state would apply the presumption. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 855-56 (10th Cir. 2003) (applying Wyoming law); Van Dyke v. Glaxo SmithKline, No. 05-CV-153, 2009 WL 10672277, at *7 (D. Wyo. Apr. 8, 2009) (citing Thom).