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Steven J. Klearman
Steven J. Klearman
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No "Heeding Presumption" in Failure-to-Warn Cases in Nevada

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The Nevada Supreme Court refused to recognize a "heeding presumption" in strict products liability failure-to-warn cases, in its June 4 decision, Rivera v. Philip Morris, Inc.

A heeding presumption is a rebuttable presumption that allows a fact-finder to presume that the injured plaintiff would have heeded an adequate warning if one had been given.

The Court’s reasoning:

In Nevada, it is well-established law that in strict product liability failure-to-warn cases, the plaintiff bears the burden of production and must prove, among other elements, that the inadequate warning caused his injuries. Because a heeding presumption shifts the burden of proving causation from the plaintiff to the manufacturer, it is contrary to Nevada law. Rather than demanding that the plaintiff prove that the inadequate warning caused his injuries, a heeding presumption requires the manufacturer to rebut the presumption that the plaintiff would have heeded an adequate warning by demonstrating that a different warning would not have changed the plaintiff’s actions. While other jurisdictions have permitted this shifting of the burden of production, we are unwilling to do so.

See Rivera v. Philip Morris, Inc., 125 Nev. Adv. Op. No. 18 (June 4, 2009) for the full opinion.