Product Liability Strict Liability Claims: California

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PRACTICE NOTE

byJonathan S. Tam and Mary H. Kim, Dechert LLP, with Practical Law Commercial Litigation

Status: Maintained | Jurisdiction: California

This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-034-8446

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A Practice Note analyzing the types of strict product liability claims that a plaintiff may bring for

personal injury under California law. This Note addresses available product liability claims, who can

be named as parties in a strict product liability claim, manufacturing and design defects, failure to

warn, causation, available damages, and the statute of limitations for claims.

California recognizes strict product liability claims for

products that are alleged to be:

• Sold with a manufacturing defect.

• Defective in design.

• Defective due to inadequate warnings or instructions.

Special rules and procedures apply for strict liability

claims that counsel must know before bringing a claim.

This Note outlines the key issues to consider when

bringing a strict product liability claim under California

law, including:

• Who may sue and be sued.

• The standard for determining liability under various

types of strict product liability claims.

• Practical considerations in proving (or disproving) defect

and causation.

• Available damages.

• Applicable statutes of limitations.

Available Product Liability Claims

Claims Applicable to Most Products

California courts generally recognize the following causes

of action in product liability cases for most products:

• Strict liability claims, including claims for:

– manufacturing defect;

– design defect; and

– failure to warn.

(Trejov.Johnson & Johnson, 13 Cal. App. 5th 110,

116 (2017) (failure to warn and design defect);

Taylorv.Elliott Turbomachinery Co., Inc., 171 Cal. App.

4th 564, 577 (2009) (failure to warn); In re Coordinated

Latex Glove Litig., 99 Cal. App. 4th 594, 598 (2002)

(manufacturing defect); Judicial Council of California

Civil Jury Instructions (CACI) 1201 (jury instructions

for manufacturing defect); CACI 1203 and CACI 1204

(design defect); CACI 1205 (failure to warn).)

• Negligence claims, including claims for negligent:

– manufacture;

– design; and

– failure to warn.

(Trejo, 13 Cal. App. 5th at 116 (design and failure

to warn); Chavezv.Glock, Inc., 207 Cal. App. 4th

1283, 1305 (2012) (design and failure to warn);

Putensenv.Clay Adams, Inc., 12 Cal. App. 3d 1062,

1078 (1970) (manufacture); CACI 1220 (manufacture

and design); CACI 1222 (failure to warn).) For more

information on product liability negligence claims under

California law, see Practice Note, Product Liability

Negligence Claims: California.

• Breach of warranty claims, including breach of:

– express warranty (Cal. Com. Code§2313);

– implied warranty of merchantability (Cal. Com.

Code§2314); and

– implied warranty of ﬁtness for a particular purpose

(Cal. Com. Code§2315).

(Hauterv.Zogarts, 14 Cal. 3d 104, 114-15 (1975) (express

warranty); Am. Suzuki Motor Corp.v.Super. Ct., 37 Cal.

App. 4th 1291, 1295 (1995) (even though breach of

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Product Liability Strict Liability Claims: California

express warranty claims are based in contract and are

not true stand-alone product liability claims, California

courts generally recognize breach of express warranty

claims when brought in conjunction with other product

liability claims); Barthv.B.F. Goodrich Tire Co., 265 Cal.

App. 2d 228, 245-46 (1968) (implied warranty of ﬁtness

for a particular purpose); CACI 1230 (express warranty);

CACI 1231 (implied warranty of merchantability);

CACI 1232 (implied warranty of ﬁtness for a particular

purpose).) For more information on product liability

breach of warranty claims under California law, see

Practice Note, Product Liability Breach of Warranty

Claims: California.

• Common law fraud and misrepresentation claims,

including:

– negligent misrepresentation; and

– fraudulent (intentional) misrepresentation (see

Standard Clause, Fraudulent Misrepresentation

Cause of Action (CA)).

(Hanberryv.Hearst Corp., 276 Cal. App. 2d 680,

686 (1969) (negligent misrepresentation); CACI

1903 (negligent misrepresentation); CACI 1900

(intentional misrepresentation); Restatement of Torts

(Second)§533 (1977); see Litigating Fraud and Related

Claims Checklist (CA) and Pleading a Fraud Claim

Checklist: Scienter (CA).)

• Deceit claims, including fraudulent:

– inducement (see Standard Clause, Promissory Fraud

Cause of Action (CA)); and

– concealment (see Standard Clause, Fraudulent

Concealment Cause of Action (CA)).

(Cal. Civ. Code§§1709 and 1710; Jonesv.ConocoPhillips

Co., 198 Cal. App. 4th 1187, 1198 (2011).)

Special Issues in Strict Liability

Under California law, strict liability does not require a

plaintiff to prove a defendant’s negligence. A defendant

may be held liable under strict liability when it places

a product on the market and the product causes injury

to a person, regardless of whether the defendant was

negligent. However, there are notable limitations and

exceptions to the strict liability doctrine in cases involving

prescription drugs, medical devices, and special ordered

products.

Prescription Drugs and Medical Devices

The California Supreme Court held that a manufacturer

cannot be held strictly liable for injuries caused by a

prescription drug, if the drug was properly prepared and

accompanied by warnings of its dangerous propensities

that were “known or reasonably scientiﬁcally knowable

at the time of distribution” (Brownv.Super. Ct., 44 Cal. 3d

1049, 1061, 1069 (1988) (adopting Restatement of Torts

(Second)§402A, cmt. k)).

California courts, applying the Brown holding, have

also held that the public interest in the development,

availability, and affordability of implanted medical devices

justiﬁes an exemption from design defect strict product

liability claims for all implanted medical devices that are

available only through a doctor (whether the medical

devices are characterized as prescription medical devices

or not) (Garrettv.Howmedica Osteonics Corp., 214 Cal.

App. 4th 173, 184-85 (2013); Artigliov.Super. Ct., 22 Cal.

App. 4th 1388, 1397 (1994); Plengerv.Alza Corp., 11 Cal.

App. 4th 349, 360-61 (1992)).

Special Ordered Products

California courts generally apply the strict liability

doctrine only in cases of mass-produced, commercially

distributed products. However, a product sold as a special

order by a mass producer might fall within the strict

liability doctrine. (See Oliverv.Super. Ct., 211 Cal. App.

3d 86, 89 (1989) (the fact that a buyer special ordered

machines from a manufacturer may not insulate the

manufacturer from strict liability where it was in the

business of manufacturing and selling and therefore not

an occasional seller).)

Proper Plaintiffs

The California Supreme Court has held that any person

whose injury was reasonably foreseeable may bring a

strict liability claim against a product manufacturer or

distributor (Elmorev.Am. Motors Corp., 70 Cal. 2d 578,

586 (1969)). No privity between the parties is required,

so a plaintiff need not have been the actual purchaser of

the product at issue. For example, California courts have

allowed strict liability claims brought by:

• An employee injured by a defective high-lift loader

leased by the employer (Barkerv.Lull Eng’g Co., 20 Cal.

3d 413, 416-17 (1978)).

• A bystander (a minor) who lost an eye when struck by

a projectile discharged from a lawnmower (Fogliov.W.

Auto Supply, 56 Cal. App. 3d 470, 472 (1976)).

• A neighbor (a minor) who sustained burns due to a

neighbor’s water heater that was defectively installed

(Hymanv.Gordon, 35 Cal. App. 3d 769, 773 (1973)).

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Product Liability Strict Liability Claims: California

• Bystanders who sustained injuries from defective

automobiles (Elmore, 70 Cal. 2d at 586).

For wrongful death claims, the estate of a person who

would have been a proper plaintiff if the person had

survived to bring suit may generally bring the claim.

Section 377.60 of the California Code of Civil Procedure

identiﬁes the persons who may be proper plaintiffs

in a wrongful death action, including the “decedent’s

surviving spouse, domestic partner, children, and issue

of deceased children.”

In addition to a wrongful death action, the decedent’s

personal representative (or if none, the decedent’s

successor in interest) may bring a survival action (Cal. Civ.

Proc. Code§377.30). If applicable, plaintiffs may bring

causes of action for both wrongful death and survival

(Cal. Civ. Proc. Code§377.62). Survival actions focus on

the injury suffered by the decedent, while wrongful death

actions focus on the injury suffered by the heirs (Cal. Civ.

Proc. Code§§377.30 to 377.35 (survival actions); Cal. Civ.

Proc. Code§§377.60 to 377.62 (wrongful death actions);

Williamsv.Pep Boys Manny Moe & Jack of Cal., 27 Cal. App.

5th 225, 228-29 (2018)).

Potentially Liable Defendants

A proper defendant to a strict product liability action must

be both:

• In the chain of distribution for the product (for example,

manufacturer, wholesaler, distributor, or retailer).

• Engaged in the business of marketing or distributing

the product.

(Petersonv.Super. Ct., 10 Cal. 4th 1185, 1198-1200 (1995);

Taylor, 171 Cal. App. 4th at 576; Oliver, 211 Cal. App. 3d

at89.)

Chain of Distribution

An entity in the chain of distribution for a product may

potentially be held liable for defects in the product. This

includes “manufacturers, retailers, and others in the

marketing chain of a product.” (Taylor, 171 Cal. App. 4th at

575 (stream of commerce theory).)

A plaintiff asserting a strict product liability claim must

prove that a defendant manufactured, sold, or was

otherwise in the chain of distribution for the speciﬁc

product giving rise to the plaintiff’s claims (Taylor, 171 Cal.

App. 4th at 576-77). Where a plaintiff does not know the

manufacturer of the product at issue, the testimony of

coworkers or other witnesses is admissible to establish the

manufacturer (Paulusv.Crane Co., 224 Cal. App. 4th 1357,

1366 (2014)).

To prevail on a strict product liability claim, a plaintiff

must be able to establish that a defendant was

responsible for the speciﬁc product at issue (Taylor, 171

Cal. App. 4th at 575-76). California courts have applied a

market share theory of liability for strict product liability

claims in some instances where fungible goods that cause

harm to consumers “cannot be traced to any speciﬁc

producer” but all the defendants in the action produced

a product from an identical formula (Sindellv.Abbott

Labs., 26 Cal. 3d 588, 610-11 (1980) (discussing market

share liability in the prescription-drug context); but see

Mullenv.Armstrong World Indus., Inc., 200 Cal. App.

3d 250, 250 (1988) (market share theory could not be

extended to asbestos products, since they were not

fungible goods); Kennedyv.Baxter Healthcare Corp., 43

Cal. App. 4th 799, 802 (1996) (market share liability

theory did not apply to latex glove manufacturers, sellers,

and distributors regarding allergic reactions to gloves)).

Component Parts Liability

Product manufacturers generally cannot be held

strictly liable for harm caused by a component part that

was supplied by another company and used with the

manufacturer’s product (see O’Neilv.Crane Co., 53 Cal.

4th 335, 352 (2012)). The only narrow exceptions to this

rule arise when the manufacturer bears some direct

responsibility for the harm (O’Neil, 53 Cal. 4th at 362).

Questions of liability for suppliers of component parts arise

most frequently in the context of strict liability, failure-to-

warn claims. For example, the California Court of Appeal

has held that a manufacturer of a component part, such as

a valve or pump in a Navy vessel’s propulsion system, was

not liable under a failure to warn theory for injuries caused

by exposure to asbestos ﬁbers released from gaskets,

packing, and insulation manufactured by other companies

and installed long after the valves and pumps were

supplied to the Navy. The court found that the valve and

pump manufacturers did not substantially participate in

the integration of their components into the design of the

overall system. (Taylor, 171 Cal. App. 4th at 575, 585.)

Successor Liability

A successor corporation generally is not liable for a defect

in a product manufactured or sold by a corporation whose

assets the successor has acquired (Rayv.Alad Corp.,

19 Cal. 3d 22, 25, 30-31 (1977)). To determine whether

an exception to the general rule should apply, courts

consider:

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Product Liability Strict Liability Claims: California

• Whether the destruction of the plaintiff’s remedies

against the original manufacturer were caused by the

successor’s acquisition of the business.

• The successor’s ability to assume the original

manufacturer’s risk-spreading role.

• The fairness of requiring the successor to assume a

responsibility for defective products that was a burden

necessarily attached to the original manufacturer’s

goodwill being enjoyed by the successor in the

continued operation of the business.

(Cal. Civ. Code§3521; Ray, 19 Cal. 3d at 31, 34.)

Engaged in the Business of Selling the

Product

A defendant may only be held strictly liable if it engaged

in a commercial transaction related to the product and

was in the business of doing so (Hernandezcuevav.E.F.

Brady Co., Inc., 243 Cal. App. 4th 249, 258-59 (2015)).

A defendant that sold a product on a one-time or

occasional basis but was not engaged in the business of

selling that product cannot be subject to strict liability for

defects related to it, though that defendant may still be

subject to a negligence claim (Oliver, 211 Cal. App. 3d at

89). Similarly, a defendant that serviced or maintained a

product but was not in the business of selling the product

is not subject to strict liability, though that defendant

may be subject to a negligence claim (Hernandezcueva,

243 Cal. App. 4th at 259; see also Bolgerv.Amazon.com,

LLC, 53 Cal. App. 5th 431, 448-49 (2020) (discussion

of situations where strict liability inapplicable, such as

hotel proprietors, residential landlords, or dealers in used

products that do not rebuild or recondition the products)).

Strict Liability Manufacturing

Defect

A party typically brings a manufacturing defect claim

when it is alleged that a product’s condition as sold

deviated from the manufacturer’s design in a way that

renders the product defective.

Elements of a Manufacturing Defect

Claim

A plaintiff pursuing a strict product liability manufacturing

defect claim must prove that:

• The defendant manufactured, distributed, or sold the

product at issue.

• The product contained a manufacturing defect, that is, it

differed from the manufacturer’s intended result or from

other ostensibly identical units of the same product line.

• The manufacturing defect existed when the product left

the defendant’s control.

• The plaintiff was injured.

• The product’s defective condition was a substantial

factor in causing the plaintiff’s injuries.

(Rutherfordv.Owens-Illinois, Inc., 16 Cal. 4th 953, 968

(1997); Garrett, 214 Cal. App. 4th at 190; Brown, 44 Cal. 3d

at 1057; see CACI 1201.)

Proving Manufacturing Defect

A plaintiff may prove that a product is defective in

manufacture by establishing either:

• Direct evidence that the product deviated from the

manufacturer’s design in a way that rendered the

product defective.

• Circumstantial evidence that the product had a

manufacturing defect because it malfunctioned

during normal use and no other potential causes

explain its failure.

(See, for example, Jiminezv.Sears, Roebuck & Co., 4 Cal.

3d 379, 383-84 (1971); Khanv.Shiley Inc., 217 Cal. App. 3d

848, 854-55 (1990).)

A plaintiff unable or unwilling to provide direct evidence

of a speciﬁc defect in the product at question may use

circumstantial evidence to prove the existence of a defect

if it can be “logically and reasonably” inferred from the

circumstantial evidence (Campbellv.Gen. Motors Corp., 32

Cal. 3d 112, 121-23 (1982)).

Establishing that a product is defective in manufacture

using circumstantial evidence requires proving that the

product both:

• Malfunctioned or failed to perform as designed.

• Was used in an ordinary or foreseeable manner.

(Barker, 20 Cal. 3d at 427-28; Gonzalezv.Autoliv ASP, Inc.,

154 Cal. App. 4th 780, 792 (2007); Khan, 217 Cal. App. 3d

at 854-55.)

The plaintiff need not show that an inference in the

plaintiff’s favor is “the only one that may be reasonably

drawn from the evidence” to have the case submitted to the

jury. The plaintiff must instead show that the material fact

to be proved can “logically and reasonably” be inferred from

the circumstantial evidence. (Campbell, 32 Cal. 3d at 121.)

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Product Liability Strict Liability Claims: California

Strict Liability Design Defect

A party typically brings a design defect claim when it is

alleged that a product’s design, as opposed to an error or

oversight in manufacturing, resulted in a defective product

that caused injury to the user.

Elements of a Design Defect Claim

While many states follow (in whole or in part) the

Restatement of Torts (Second)§402A, which provides

for strict product liability claims against those who

sell products in a “defective condition unreasonably

dangerous to the user,” the California Supreme Court

has not followed the unreasonably dangerous limitation

on strict liability (Barker, 20 Cal. 3d at 414). A plaintiff

pursuing a strict product liability design defect claim

under California law must instead prove that:

• The product was defective in design.

• The defect existed when the product left the defendant’s

control.

• The plaintiff was injured.

• The defect was a proximate cause of the plaintiff’s

injuries.

(Barker, 20 Cal. 3d at 427; Jiminez, 4 Cal. 3d at 382.)

Proving Design Defect

A plaintiff may prove that a product is defective in design

by using either a consumer expectations test or a risk-

beneﬁt test, but a plaintiff may only rely on the consumer

expectations test if the product is one that ordinary users

can reasonably opine regarding the product’s safety.

The consumer expectations test is reserved for cases

where the “everyday experience of the product’s user”

allows a conclusion that the product’s design violated

minimum safety assumptions and is therefore defective

“regardless of expert opinion about the merits of the

design” (Soulev.Gen. Motors Corp., 8 Cal. 4th 548, 550

(1994); Chavez, 207 Cal. App. 4th at 1310). A plaintiff may

elect to pursue one theory or both (Soule, 8 Cal. 4th at 571;

Chavez, 207 Cal. App. 4th at 1312).

Consumer Expectations Test

A plaintiff attempting to prove a strict liability design

defect using the consumer expectations test must prove

that because of its design, the product failed to perform as

safely as an ordinary consumer would expect when used

(or misused) in a reasonably foreseeable manner (Barker,

20 Cal. 3d at 429-30).

This requires a plaintiff to prove that:

• The defendant manufactured, distributed, or sold the

product.

• The product failed to perform as safely as an ordinary

consumer would expect it to perform when used or

misused in an intended or reasonably foreseeable way.

• The plaintiff was harmed.

• The product’s failure to perform as safely as expected

was a proximate cause of the plaintiff’s injuries.

(Barker, 20 Cal. 3d at 429-30; see CACI 1203.)

A product is not defective in design if the risk of

injury it poses would be reasonably anticipated by

a hypothetical reasonable consumer, irrespective of

whether a particular plaintiff actually anticipated that

risk (Soule, 8 Cal. 4th at 568; Chavez, 207 Cal. App. 4th

at 1297-98, 1303).

Where the intended user of a product would have

specialized knowledge, such as with a piece of industrial

equipment, it may be necessary for the plaintiff to

introduce expert testimony to establish the reasonable

expectations of an ordinary consumer of that type of

product. In that context, courts have permitted plaintiffs

to proceed under a consumer expectations test to show

the expectation of a sophisticated consumer. (Chavez, 207

Cal. App. 4th at 1322-23; but see Soule, 8 Cal. 4th at 567

(expert witnesses cannot be used to demonstrate what an

ordinary consumer would expect).)

Risk-Beneﬁt Test

A plaintiff attempting to prove strict liability design defect

based on California’s risk-beneﬁt test must ﬁrst prove that:

• The defendant manufactured, distributed, or sold the

product.

• The plaintiff was harmed.

• The product’s design was a proximate cause of the

plaintiff’s injuries.

(Kimv.Toyota Motor Corp., 6 Cal. 5th 21, 30 (2018);

Perezv.VAS S.p.A., 188 Cal. App. 4th 658, 676-77 (2010);

see CACI 1204.)

If the plaintiff establishes these three elements, under

the risk-beneﬁt test, the burden of proof shifts to the

defendant to prove that the beneﬁts of the product’s

design outweigh the risks of the design (Perez, 188 Cal.

App. 4th at 677-78). When conducting the risk-beneﬁt

test, California courts consider:

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Product Liability Strict Liability Claims: California

• The gravity of the potential harm resulting from the

product’s use.

• The likelihood that the harm would occur.

• The mechanical feasibility of a safer alternative when

the product was manufactured.

• The ﬁnancial cost of an improved alternative design.

• The adverse consequences to the products and to the

consumer that would result from the alternative design.

• Any other relevant factors.

(Barker, 20 Cal. 3d at 431 (referred to as the Barker

factors); Kim, 6 Cal. 5th at 30; see CACI 1204.)

The Barker factors do not require the manufacturer to

prove that the challenged design is the safest possible

alternative. The manufacturer must only show that,

given the complexities of the design, the beneﬁts of the

design outweigh the risks. (Soule, 8 Cal. 4th at 571 n.8;

see Bakerv.Cottrell, Inc., 2017 WL 6730572, at *7 (E.D.

Cal. Dec. 29, 2017) (applying California law) (dismissing

plaintiff’s strict liability design defect claim based on

the risk-beneﬁt test where plaintiff did not present any

evidence to establish that the alleged defect proximately

caused plaintiff’s injury).)

A defendant cannot use the risk-beneﬁt test as a defense

to the consumer expectations test or vice versa (Chavez,

207 Cal. App. 4th at 1303).

Reasonable Alternative Design

California courts do not require plaintiffs to present

evidence of a reasonable alternative design to meet

their prima facie burden. Once a plaintiff establishes

a prima facie case that the product’s design was a

proximate cause of the plaintiff’s injuries, the burden

of proof shifts to the defendant to prove that, given the

complexities of the design, the beneﬁts of the design

outweigh the risks. (Kim, 6 Cal. 5th at 30; Perez, 188 Cal.

App. 4th at 677-78.)

While courts may allow the evaluation of competing

designs, the Barker factors do not require the defendant

to prove that the challenged design is the safest possible

design (Soule, 8 Cal. 4th at 571 n.8).

Subsequent Remedial Measures

Under California law, subsequent remedial measures are

generally inadmissible to prove negligence or culpable

conduct (Cal. Evid. Code§1151). However, post-sale

changes in a product’s design may be admissible to prove

that the prior design of the product was defective in a

strict product liability action (Aultv.Int’l Harvester Co.,

13 Cal. 3d 113, 117-19 (1974) (holding that the prohibition

against admitting evidence of subsequent remedial

conduct, as contained in Cal. Evid. Code§1151, applies in

negligence, rather than strict liability cases)).

While California Evidence Code Section 1151’s prohibition

against the admission of evidence of subsequent remedial

actions does not apply in a strict product liability action,

a trial court retains broad discretion under California

Evidence Code Section 352 to exclude the evidence

if it is likely to take an “undue consumption of time”

or “create substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury.” The

evidence of subsequent remedial conduct is therefore

subject to the rules of admission of evidence generally

(Aguayov.Crompton & Knowles Corp., 183 Cal. App. 3d

1032, 1039-40 (1986) (excluding evidence of subsequent

remedial measures in strict liability design defect case on

grounds of relevancy and remoteness)).

Enhanced Injury or Crashworthiness Claims

California allows plaintiffs to assert strict product liability

claims based on a theory of crashworthiness or enhanced

injury. In a crashworthiness claim, the plaintiff alleges

that the product did not adequately protect users during

a collision or accident due to a defective condition in the

product, even though the accident or collision itself may

not have been caused by any defect in the product. (Soule,

8 Cal. 4th at 572; Endicottv.Nissan Motor Corp., 73 Cal.

App. 3d 917, 928 (1977).)

California courts analyze enhanced injury claims within

the context of proximate causation, or the substantial

factor test. The courts look to whether the plaintiff was

likely to have suffered the injury even if the alleged

defect had not been a factor. If so, the defect cannot

be a substantial contributing factor to the injury.

(Doupnikv.Gen. Motors Corp., 225 Cal. App. 3d 849, 862

(1990); Endicott, 73 Cal. App. 3d at 926.) A plaintiff is not

required to rule out all possible alternatives but must

show instead that the defective mechanism was “more

probable than not the cause in fact” of the plaintiff’s

injuries (Doupnik, 225 Cal. App. 3d at 864).

Strict Liability Failure to Warn

A party typically brings a strict liability failure to warn

claim when alleging that a plaintiff’s injuries were caused

by inadequate warnings or instructions for the safe use of

a product.

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Product Liability Strict Liability Claims: California

Elements of Failure to Warn Claim

When pursuing a strict product liability failure to warn

claim under California law, a plaintiff must prove that:

• The defendant manufactured, distributed, or sold the

product.

• The product had potential risks (or side effects or

allergic reactions) that were known or knowable

considering the scientiﬁc and medical knowledge that

was generally accepted in the scientiﬁc community at

the time of manufacture, distribution, or sale.

• The potential risks (or side effects or allergic reactions)

presented a substantial danger when the product

was used or misused in an intended or reasonably

foreseeable way.

• Ordinary consumers were not likely to have recognized

those potential risks (or side effects or allergic

reactions).

• The defendant failed to adequately warn or instruct of

the potential risks (or side effects or allergic reactions).

• The plaintiff was injured.

• The lack of sufﬁcient warnings or instructions was a

proximate cause of the plaintiff’s injuries.

(Carlinv.Super. Ct., 13 Cal. 4th 1104, 1112-13 (1996);

Andersonv.Owens-Corning Fiberglas Corp., 53 Cal. 3d

987, 999-1000 (1991); see CACI 1205.)

For strict liability failure to warn claims, a plaintiff must

prove that the product’s lack of sufﬁcient warnings was

a substantial factor in causing the plaintiff’s injuries

(Huittv.S. Cal. Gas Co., 188 Cal. App. 4th 1586, 1604

(2010)). This requires the plaintiff to establish both that

the product’s warnings were inadequate and that an

adequate warning would have prevented the plaintiff’s

injuries (Chavez, 207 Cal. App. 4th at 1304; Huitt, 188 Cal.

App. 4th at 1603; Taylor, 171 Cal. App. 4th at 577).

There are additional considerations for claims pertaining

to particular types of products.

Prescription Drugs and Medical Devices

California follows the learned intermediary doctrine for

prescription drugs and medical devices, which provides

that any warning must be given to the prescribing

physician (Bigler-Englerv.Breg, Inc., 7 Cal. App. 5th 276,

319 (2017)). The manufacturer has a continuing duty

to warn physicians (not the patient) for as long as the

product is in use (see CACI 1205; but see Bigler-Engler,

7 Cal. App. 5th at 319 (for medical devices that are

provided to patients for their use, duty to warn runs to the

physician and the patient)). As a result, the manufacturer

“discharges its duty to warn if it provides adequate

warnings to the physician about any known or reasonably

knowable dangerous side effects, regardless of whether

the warning reaches the patient” (Motusv.Pﬁzer Inc., 196

F. Supp. 2d 984, 991 (C.D. Cal. 2001), aff’d, 358 F.3d 659

(9th Cir. 2004) (applying California law)).

Products Containing Allergens

California has adopted the Restatement of Torts

(Second)§402A, comment j on the application of strict

liability failure to warn in the case of products containing

allergens (Livingstonv.Marie Callender’s, Inc., 72 Cal.

App. 4th 830, 838 (1999)). When pursuing a strict liability

failure to warn claim involving products containing

allergens, a plaintiff must prove that:

• The defendant manufactured, distributed, or sold the

product.

• A substantial number of people are allergic to an

ingredient in the product.

• The danger of the ingredient is not generally known or,

if known, the ingredient is one that a consumer would

not reasonably expect to ﬁnd in the product.

• The defendant knew or by using scientiﬁc knowledge

available at the time should have known of the

ingredient’s danger and presence.

• The defendant failed to provide sufﬁcient warnings

concerning the ingredient’s danger or presence.

• The plaintiff was injured.

• The lack of sufﬁcient warnings was a proximate cause of

the plaintiff’s injuries.

(Livingston, 72 Cal. App. 4th at 839; see CACI 1206.)

Proving Failure to Warn Defect

Under California law, a product is defective due to failure

to warn if it was distributed or sold without sufﬁcient

warnings of dangers “that were known to the scientiﬁc

community” at the time the product was manufactured

and distributed (Johnsonv.Am. Standard, Inc., 43 Cal. 4th

56, 64-65 (2008); Andersonv.Owens-Corning Fiberglas

Corp., 53 Cal. 3d 987, 1003 (1991)). The product’s user

must be given the option to either not use the product at

all or use it in a way to “minimize the degree of danger”

(Johnson, 43 Cal. 4th at 65).

A plaintiff must prove, typically using expert testimony,

that the defendant failed to adequately warn of a risk

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Product Liability Strict Liability Claims: California

that was “known or knowable in light of the generally

recognized and prevailing best scientiﬁc and medical

knowledge available at the time” (Anderson, 53 Cal. 3d at

992, 1002-03). However, a defendant may raise a state-of-

the-art defense, arguing that it could not have warned of

the product’s dangers because they were unknown at the

relevant time (Anderson, 53 Cal. 3d at 990-91, 1004).

In evaluating the adequacy of a warning under California

law, courts consider whether the warning:

• Alerts users to hidden dangers inherent in the use of the

product (Johnson, 43 Cal. 4th at 64-65; Anderson, 53

Cal. 3d at 1003).

• Is appropriate for the level of knowledge and

understanding of the product’s intended user (Johnson,

43 Cal. 4th at 65-66).

• Is sufﬁciently prominent to apprise users of the

product’s dangers (for example, the warning’s location

or position) (Bucknerv.Milwaukee Elec. Tool Corp., 222

Cal. App. 4th 522, 528 (2013)).

A manufacturer may be required to give two types of

warnings. If the product’s dangers can be avoided or

lessened by proper use of the product, the manufacturer

may be required to adequately instruct the consumer “to

use it in such a way as to minimize the degree of danger.”

If the risks of the product are unavoidable (for example,

side effects of prescription drugs), the manufacturer may

be required to give an adequate warning to allow the end

user to make an informed decision about whether to use

the product at all (Buckner, 222 Cal. App. 4th at 531-32).

California recognizes “the obvious danger rule, which

provides that there is no need to warn of known risks”

(Cal. Civ. Code§1714.45(a); Johnson, 43 Cal. 4th at 67).

Similarly, where a product is designed and intended

to be used by a speciﬁc class of users with specialized

knowledge, such as industrial products designed for use by

skilled technicians, a manufacturer or seller need not warn

of dangers that a reasonable intended user of that product

would appreciate in the absence of warnings (Johnson,

43 Cal. 4th at 65-66, 71 (no requirement to warn HVAC

professionals about the dangers of certain heat exposure)).

Courts have held that warnings are legally adequate when

they contain information warning of the exact danger that

causes a plaintiff’s injury (Marroquinv.Pﬁzer, Inc., 367 F.

Supp. 3d 1152, 1163 (E.D. Cal. 2019) (applying California law)

(dismissing failure to warn claim where plaintiff alleged that

company failed to warn of potentially fatal risk of taking

drug but the warning stated that the drug was a drug of last

resort because of its “potentially fatal toxicities”)).

Heeding Presumption

Unlike some jurisdictions, California does not recognize

a rebuttable presumption that a plaintiff would have

heeded an adequate warning if the product manufacturer,

distributor, or seller had provided one. The plaintiff

maintains the burden of establishing that any failure

to warn by the defendant was a proximate cause of the

plaintiff’s injury. (Huitt, 188 Cal. App. 4th at 1603.)

Post-Sale Duty to Warn

California generally does not impose a post-sale duty to

warn on product manufacturers or suppliers where no

defect existed in the product at the time of sale. To hold

the manufacturer or supplier liable for failing to warn of

dangers of which it would be impossible to know based

on the state of knowledge at the time would render

the manufacturer or supplier the “virtual insurer of the

product.” (Brown, 44 Cal. 3d at 1061, 1066.)

However, for prescription drugs and implantable medical

devices, the manufacturer, distributor, or seller has a

continuing duty to warn physicians of potential risks, side

effects, and allergic reactions that may result from the

foreseeable use of the product for as long as the product is

in use. The duty to warn runs to the physician, who stands

in the shoes of the ordinary user and not the patient.

(Bigler-Engler, 7 Cal. App. 5th at 319; see CACI 1205.)

Proving Causation

Under California law, a plaintiff must show both general

causation (that the product at issue was capable of

causing the alleged injury) as well as speciﬁc causation

(that the product actually caused “or was a substantial

factor in causing” the plaintiff’s injury) (Nelsonv.Matrixx

Initiatives, Inc., 592 F. App’x 591, 592 (9th Cir. 2015)

(citing Jonesv.Ortho Pharm. Corp., 163 Cal. App. 3d 396,

404 (1985))). “General and speciﬁc causation ‘must be

proven within a reasonable medical probability based

upon competent expert testimony’” (Nelson, 592 F. App’x

at 592 (citing Jones, 163 Cal. App. 3d at 402)).

To demonstrate that a defendant may have caused a

plaintiff’s injury, California uses the substantial factor

test to determine proximate causation (Rutherford,

16 Cal. 4th at 968-69; see Restatement of Torts

(Second)§431(a)). Under this test, a plaintiff must

prove that the defendant’s defective products were

a “substantial factor in bringing about” their injury

(Rutherford, 16 Cal. 4th at 968). It does not need to be

the only cause of the injury but must be more than a

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Product Liability Strict Liability Claims: California

remote or trivial factor (Rutherford, 16 Cal. 4th at 969;

Soule, 8 Cal. 4th at 572).

California courts have used the substantial factor test

as a “clearer rule of causation” than the but for test,

as the substantial factor test “subsumes the ‘but for’

test while reaching beyond it to satisfactorily address

other situations, such as those involving independent or

concurrent causes in fact” (Rutherford, 16 Cal. 4th at 969).

California has adopted the learned intermediary doctrine,

which provides that in cases involving prescription

medications, a pharmaceutical manufacturer’s duty

to warn “runs to the physician, not to the patient”

(Motusv.Pﬁzer Inc., 196 F. Supp. 2d 984, 990-91 (C.D.

Cal. 2001), aff’d, 358 F.3d 659 (9th Cir. 2004) (applying

California law)). In view of that doctrine, to establish that

a pharmaceutical manufacturer’s failure to warn was the

proximate cause of an injury, a plaintiff must show that

an adequate warning would have changed the physician’s

prescribing decision (Motus, 196 F. Supp. 2d at 990-91).

That is, to prove that a defendant’s alleged failure to warn

or inadequate warning was a substantial factor in the

plaintiff’s injury, the plaintiff has the burden to prove that

the “inadequate warning was the proximate cause of the

injury, or, in other words, that an adequate warning to the

prescribing physician would have altered the physician’s

conduct” (Motus, 196 F. Supp. 2d at 991).

Damages

Available Damages

Under California law, a plaintiff who prevails on a strict

product liability claim may potentially recover:

• Compensatory damages for economic losses, including:

– costs of required medical care;

– loss of earnings; and

– property damage other than to the product at issue.

• Compensatory damages for noneconomic losses,

including compensation for:

– pain and suffering; and

– loss of consortium (typically brought by the spouse).

• Punitive damages.

In a wrongful death action, a plaintiff may seek economic

damages in the form of:

• Financial support that the decedent would have

contributed to the family.

• Loss of gifts or beneﬁts the plaintiff would have

expected to receive from the decedent.

• Funeral and burial expenses.

• Reasonable value of household services that the

decedent would have provided.

In a wrongful death action, a plaintiff may seek

noneconomic damages, including loss of:

• The decedent’s love, companionship, comfort, and care.

• Consortium.

• The decedent’s training and guidance.

(Cal. Civ. Proc. Code§377.61.)

California recognizes the economic loss rule, which

generally bars tort recovery in strict liability for damage to

the defective product itself. Under this rule, a manufacturer

or distributor cannot be liable for “purely economic losses”

(KB Homev.Super. Ct., 112 Cal. App. 4th 1076, 1084 (2003)).

Limitations on Damages

Punitive damages may be awarded where the plaintiff

can prove “by clear and convincing evidence that the

defendant has been guilty of oppression, fraud, or malice”

(Cal. Civ. Code§3294(a)).

Punitive damages cannot be imposed on a corporate

defendant unless the plaintiff can prove that an

ofﬁcer, director, or managing agent of a corporation

had “advance knowledge and conscious disregard,

authorization, ratiﬁcation or act of oppression, fraud, or

malice” (Cal. Civ. Code§3294(b); Anayav.Machines de

Triage et Broyage, 2019 WL 359421, at *5 (N.D. Cal. Jan.

29, 2019) (applying California law); Morganv.J-M Mfg.

Co., Inc., 60 Cal. App. 5th 1078, 1089 (2021)).

Under California Civil Code Section 1431.2 (known

as Proposition 51), each defendant’s liability for

non-economic damages is several and not joint

(B.B.v.County of Los Angeles, 10 Cal. 5th 1, 9 (2020);

DaFontev.Up-Right, Inc., 2 Cal. 4th 593, 600 (1992);

but see Schreiberv.Lee, 47 Cal. App. 5th 745, 754 (2020)

(acknowledging a “split in authority of sorts” over

Proposition 51’s applicability to strict product liability

actions and quoting Rominev.Johnson Controls, Inc., 224

Cal. App. 4th 990, 1011 (2014))).

Although California law itself does not provide a cap

on punitive damages in a personal injury case, the US

Supreme Court has held that, as a matter of substantive

due process, punitive damages must bear a reasonable

relationship to the compensatory damages awarded to

Product Liability Strict Liability Claims: California

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the plaintiff (Cal. Civ. Code§3294; State Farm Mut. Auto.

Ins. Co.v.Campbell, 538 U.S. 408, 419-20 (2003); BMW of

N. Am., Inc.v.Gore, 517 U.S. 559, 575 (1996)).

Statutes of Limitations

The statute of limitations for product liability claims is

generally two years from the date the cause of action accrues

(Cal. Civ. Proc. Code§312; Cal. Civ. Proc. Code§335.1

(personal injury actions); Cal. Civ. Proc. Code§361 (effect

of limitation laws of other states); Norgartv.Upjohn Co., 21

Cal. 4th 383, 404-05 (1999) (calculating accrual of wrongful

death actions)). A cause of action generally accrues when

“the cause of action is complete with all of its elements”

(Norgart, 21 Cal. 4th at 397).

California recognizes the discovery rule, which “postpones

accrual of a cause of action until the plaintiff discovers, or

has reason to discover, the cause of action” (Foxv.Ethicon

Endo-Surgery, Inc., 35 Cal. 4th 797, 807-09 (2005)).

For asbestos exposure cases, the statute of limitations is

within one year after the date the plaintiff ﬁrst suffered

the disability or within one year after the date the plaintiff

“knew, or through the exercise of reasonable diligence

should have known, that such disability was caused or

contributed to by exposure,” whichever is later (Cal. Civ.

Proc. Code§340.2(a) (personal injury actions); Cal. Civ.

Proc. Code§340.2(c) (one year for wrongful death actions)).

For exposure to hazardous materials or toxic substances

other than asbestos, the statute of limitations is the later

of two years from the date of injury or two years after the

plaintiff becomes aware of “or reasonably should have

become aware of”:

• An injury.

• The physical cause of the injury.

• Sufﬁcient facts to put a reasonable person on inquiry

notice that the injury was caused or contributed to by

the wrongful act of another.

(Cal. Civ. Proc. Code§340.8(a) (personal injury actions);

Cal. Civ. Proc. Code§340.8(b) (two years for wrongful

death actions).)

California does not have a statute of repose applicable to

product liability actions.