To find a manufacturer at fault for negligent failure to take steps to warn of a danger learned after the product had already been sold, the Plaintiff must find these elements by the greater weight of the evidence:

1) After the sale of the product, the manufacturer learned of a danger in the use of the product that made it defective when it was sold;

2) The manufacturer failed to use ordinary care and diligence in taking steps to give an adequate warning to foreseeable users about the danger in the product. In considering whether the manufacturer acted with ordinary care and diligence, you may consider, the following factors, among others:

1) Whether, based upon the information available, the manufacturer knew or should have known that the product possessed a substantial risk of harm to persons without a warning.

2) Whether those to whom a warning might be provided could be identified, or may already reasonably be assumed to be aware of the risk of harm.

3) Whether a warning could have been effectively communicated to and acted on by those to whom a warning might be provided.

4) Whether the risk of harm is sufficiently great to justify the burden of providing a post-sale warning.

In considering whether the product possessed a substantial risk of harm, you may consider the nature of the harm that may result from use of the product without notice of the danger, the likelihood that harm will occur, and the number of persons affected. In considering whether those to whom a warning might be provided could be identified, or whether a warning could be effectively communicated to them, you may consider the type of product involved, the nature of the industry, and the number of units sold. In considering the burden of providing a warning, you may consider the cost and resources involved in identifying and contacting those to whom a warning might be provided after the product had already been sold.

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