Philadelphia associate Molly Flynn wrote an article for the DRI publication RX for the Defense. The article, titled, “Sharing the Blame: Practice Tips for Using Comparative Negligence at Trial,” offers a roadmap to avoid the reluctance by some courts to permit comparative negligence in failure to warn cases.
Molly suggests that to ensure that comparative negligence remains a viable affirmative defense presented to the jury, you should address the issue early in the proceedings, develop the available facts, then argue for related jury instructions, interrogatories, and verdict sheet calculations. Her advice to avoid risk of an unfavorable ruling: do not let the issue languish until the end of trial.
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