Plaintiff was a deputy sheriff who suffered a back injury allegedly caused by his being struck by an energy weapon during a training exercise. He sued the company that made the weapon for failure to warn of the potential risk of injury. The trial judge refused to give a “hindsight rule” jury instruction and instead informed the jury that the Defendant could be found liable for failure to warn only of risks that were known or knowable in light of the prevailing scientific knowledge at the time of the products’ distribution. The jury ruled for the Defendant and the trial court denied Plaintiff’s motion for a new trial. The court also awarded sanctions under Rule 68(d) because the Defendant had made a formal Offer of Judgment, rejected by the Plaintiff, which was more favorable to Plaintiff than the outcome at trial.
On appeal, Plaintiff argued that the trial court erred by failing to instruct the jury to evaluate the need for a warning based on the hindsight current knowledge of potential risks. The Court of Appeals rejected the argument, finding that the Arizona Supreme Court in Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 247 n.2 (1985) had expressly declined to decide whether the “hindsight rule” applied to products liability cases based on an alleged defective warning. The Court of Appeals adopted the majority view, reflected also in the Restatement (Third) of Torts: Products Liability §2, in rejecting the hindsight rule for a defective warning claim. The Court also upheld the sanctions against Plaintiff, ruling that Defendant’s Rule 68(d) Offer of Judgment was enforceable even though it was conditioned on Plaintiff’s acceptance of maintaining its terms confidential.
Judge Barker wrote the opinion; Judges Timmer and Ehrlich concurred.