Part two of a two-part series

As traditionally conceived, the heeding presumption is a rebuttable presumption in failure-to-warn cases that allows the fact-finder to presume that the user of the product would have heeded an adequate warning, had one been given, and would have avoided injury as a result. As previously noted, one of the central reasons Comment j to §402A of the Restatement (Second) of Torts has been interpreted as inuring to the benefit of the consumer in addition to the seller is to avoid the charade of speculative and self-serving testimony regarding what the plaintiff would have done in the face of a different warning. Because the majority of jurisdictions recognize the learned intermediary doctrine in pharmaceutical liability cases, the manufacturer’s duty to warn is owed not to the ultimate consumer but to the “learned intermediary” alone (ordinarily but not always, the prescribing physician). Thus, when applied in the pharmaceutical failure-to-warn context, the heeding presumption permits the fact-finder to assume that the prescribing physician would not have prescribed the drug to the plaintiff had the manufacturer warned the prescribing  physician of the risk of harm causing the plaintiff’s injury.

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