Is a Generalized Warning Sufficient to Warn of a Specific Serious Risk In Over-The-Counter Products ?
In Cooley v. Carter-Wallace, Inc., 102 AD2d 642, 478 N.Y.S.2d 375 [4th Dept 1984] the plaintiff was advised by his doctor to use Nair, an over-the-counter ("OTC") depilatory, on an area of his body on which, according to the consumer package warning, it should not be used.
Plaintiff experienced serious medical problems after using the product.
The label stated only that "irritation or allergic reaction may occur with some people."
The Appellate Division held that the warning could be found to be inadequate because it did not warn of the "specific risks involved if 'Nair' is applied to the genital area," and that "a warning may be inadequate when the magnitude of the potential harm requires more . . . (Cooley v. Carter-Wallace, Inc., supra, 102 AD2d at 646)."
The court held further:
Had plaintiff been alerted to the possibility of enduring the severe injuries he sustained from use of what appeared to be an innocuous product used daily by many consumers, he may not have relied upon the recommendation of his doctor. Id. at 648.
Decisions in other jurisdictions, in cases with comparable facts, support the proposition that a generalized warning may be found to be inadequate to warn of a specific, serious risk.
Hermes v. Pfizer, Inc., 848 F2d 66, 68 [5th Cir 1988];
Golod v. Hoffman La Roche, 964 F Supp 841 [SD NY 1997];
Erony v. Alza Corp., 913 FS 195 [SD NY 1995];
MacDonald v. Ortho Pharmaceutical Corp., 394 Mass 131, 139, 475 NE 2d 65, cert denied 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 ;
Michael v. Warner/Chilcott (91 NM 651, 579 P2d 183, cert denied sub nom Robbins v. Michael, 91 NM 610, 577 P2d 1256 ;
Torsiello v. Whitehall Laboratories, Division of Home Products Corp., 165 NJ Super 311, 321, 398 A2d 132 [App Div], cert denied 81 NJ 50, 404 A2d 1150 .