For Halloween, rather than discuss any of the various litigation over candy (e.g., the litigation over Skittles or “slack fill” in packages), we are going to travel back to 1984 to look at what a mishap with a sheep costume says about how consumer expectations can affect liability from Ferlito v. Johnson & Johnson, 983 F.2d 1066 (6th Cir. 1992) (Table). 

That year, Frank Ferlito attended a Halloween party dressed as a sheep.  His wife, who made the sheep costume, went as Little Bo Peep.  During the party, Mr. Ferlito attempted to light a cigarette (this was 1984, so smoking was much more prevalent) and accidentally caught his costume on fire, resulting in burns to one-third of his body that required several surgeries. The Ferlitos sued Johnson & Johnson, which made the cotton batting Mrs. Ferlito had used to make the costume, under a failure to warn theory, and a jury awarded the Ferlitos $620,000.

But the district court entered judgment in J&J’s favor notwithstanding the verdict, and the Sixth Circuit affirmed.  Both courts reasoned that the Ferlitos had “failed to provide any evidence that the failure to warn would have dissuaded them from using the product.”  Both Ferlitos admitted to knowing that cotton batting burned, Mr. Ferlito admitted that he ignores the warnings on cigarettes “daily,” and “neither plaintiff testified as to how their conduct would have differed if there had been a warning on the box of cotton material.”  In short, the Ferlitos failed to prove that any failure to warn actually caused Mr. Ferlito’s injuries. 

Take Away:  While J&J may have been able to avoid litigation had a warning been included, the lack of a warning did not seal its fate.  Consumer knowledge and its effect on causation must still be considered to determine liability.