This case involves the efforts of seven justices to faithfully apply the holding of Brown v. Superior Court (1988) 44 Cal.3d 1049 [245 Cal.Rptr. 412, 751 P.2d 470] (Brown, hereafter) to the first amended complaint of plaintiff, Wilma Peggy Carlin, which alleges defendant, the Upjohn Company, failed to warn her of a known or knowable risk concerning the drug Halcion. The four opinions filed in this matter involve an effort to apply Brown to the present case in light of considerations which have come to light since Justice Mosk, with the concurrence of six other justices, applied a modified form of failure to warn strict tort liability principles to prescription drugs in 1988.1 agree with the majority plaintiff has stated a cause of action for a failure to warn of a known risk of Halcion, the drug in question. I further agree that the cause is action for failure to warn is different from a negligence claim. In that *1136respect, I respectfully disagree with Justice Baxter’s analysis that plaintiff’s failure to warn of a known risk cause of action is merely a negligence claim. My disagreement with the majority is that the failure to warn of a known risk theory is not really a cause of action in strict liability for reasons that will be explained. Rather, a cause action for failure to disclose to a physician a known adverse side effect of a prescription drug results in heightened risk of potential responsibility but does not, given the decisions of the courts of this state, give rise to what has commonly been described as strict tort liability. I am in complete agreement with Justice Baxter, though, insofar as he concludes that a failure to warn of a knowable risk is subject to traditional negligence principles including the unavailability of punitive damages.
I. Known Risks
There are two reasons why the failure of a drug manufacturer ought to be viewed as something other than strict liability. First, the historical purposes of strict tort liability have only limited application to a failure to warn in the drug manufacturer context. Second, because of the inclusion of negligence concepts in a failure to warn case, there is no longer anything “strict” about the liability a drug manufacturer is subject to when it fails to advise a tort plaintiff’s physician about the adverse side effects of a prescription drug.
A. The Historical Purposes of Strict Tort Liability and Their Limited Applicability to Failure to Warn of Known Defect Cases
The doctrine of strict liability has its origins in the concurring opinion of then Associate Justice Traynor in Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 461 [150 P.2d 436] in which he advocated subjecting a manufacturer to “absolute liability” when “an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.” This court adopted Justice Traynor’s position, without the “absolute liability” language, in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049], wherein it was stated: “A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” The purpose of the doctrine of strict liability was “to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” (Id. at p. 63.) The doctrine also served “to relieve an injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of action.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 431 *1137[143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1].) Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733 [144 Cal.Rptr. 380, 575 P.2d 1162] noted that the term “strict liability” was not the equivalent of “absolute liability.” In Daly, this court held: “From its inception, however, strict liability has never been, and is not now, absolute liability. As has been repeatedly expressed, under strict liability the manufacturer does not thereby become the insurer of the safety of the product’s user. [Citations.]” (Ibid., original italics.)
As noted by the majority, there are three types of potential strict tort liability. In Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995 [281 Cal.Rptr. 528, 810 P.2d 549] (Anderson, hereafter), Associate Justice Panelli noted, “Strict liability has been invoked for three types of defects—manufacturing defects, design defects, and ‘warning defects,’ i.e., inadequate warnings or failures to warn.” This appeal arises in the latter type of defect, failure to warn specifically with regard to a prescription drug. It had been held that when a drug is placed upon the market and sold without adequate and proper warning of a known risk, a manufacturer may be “strictly liable” for resulting injury. (Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 711 [60 Cal.Rptr. 398, 29 A.L.R.3d 988]; see also Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 988 [95 Cal.Rptr. 381]; Rest.2d Torts, § 402A, com. k, pp. 353-354.) In Brown, this court held in the prescription drug context, there was no strict tort liability when the risk was unknowable; rather liability only arose if the risk was “known or reasonably scientifically knowable at the time of distribution.” (Brown, supra, 44 Cal.3d at p. 1069, fn. omitted.) In Anderson, this court noted that the theory of strict liability for failure to warn had been principally developed in the Courts of Appeal culminating in the principle that “a failure to give adequate warnings might subject a manufacturer or distributor to strict liability when it knew or should have known of the danger and the necessity of warnings to ensure safe use.” (Anderson, supra, 53 Cal.3d at p. 996, original italics, and cases cited therein.) Anderson noted that in the previous Court of Appeal decisions that: the Courts of Appeal had not focused on the factual question of whether a manufacturer knew or should have known of the risks involved in the products, because of the nature of the product or risk made such discussion unnecessary; the issue of whether the manufacturer knew or should have known was not at issue in those cases because plaintiffs had limited the action to risks which were obviously known or should have been known; and despite the failure of the Courts of Appeal to discuss the issue knowledge or knowability, such was an implicit condition of strict liability. According to Anderson the knowledge aspect was only the focus as a component of failure to warn when the issue was whether the danger to be warned against was “unknowable.” In such cases, the consensus was that knowledge or *1138knowability was a factor in the obligation to warn under section 402A, comment j of the Restatement Second of Torts, because eliminating the knowledge component would have the effect of turning strict liability into absolute financial responsibility. (Anderson, supra, 53 Cal.3d at pp. 997-998, citing Oakes v. E. I. Du Pont de Nemours & Co., Inc. (1969) 272 Cal.App.2d 645, 650-651 [77 Cal.Rptr. 709] and Christofferson v. Kaiser Foundation Hospitals (1971) 15 Cal.App.3d 75, 79 [92 Cal.Rptr. 825, 53 A.L.R.3d 292].) I agree with the majority the failure of a drug manufacturer to warn of a known risk gives rise to potential liability. The foregoing authority clearly so holds. Stare decisis concerns, the need for predictability in the law, and the subtle yet distinct manner in which negligence is different from failure to warn in the drug context warrant acceptance of this now well-established principle. Any change should come from the Legislature. However, in my view, I conclude that in the case of a failure to warn of a known risk of a side effect of a prescription drug by a manufacturer, it is both confusing and unnecessary to continue to apply the label of “strict liability.”
First, neither of the purposes of imposing strict liability on a prescription drug manufacturer is being served when the issue is a known risk. As noted above, a key purpose of the doctrine of strict liability is “to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63.) Brown noted generally: “[T]he fundamental reasons underlying the imposition of strict liability are to deter manufacturers from marketing products that are unsafe, and to spread the cost of injury from the plaintiff to the consuming public, which will pay a higher price for the product to reflect the increased expense of insurance to the manufacturer resulting from its greater exposure to liability.” (44 Cal.3d at pp. 1062-1063.) Brown also rejected the imposition of strict liability against the manufacturers of prescription drugs for design defects and failure to warn of unknown risks, on public interest grounds. In exempting prescription drug manufactures from strict liability principles under such circumstances, Brown stated: “It is indisputable, . . . that the risk of injury from such drugs is unavoidable, that a consumer may be helpless to protect himself from serious harm caused by them, and that, like other products, the cost of insuring against strict liability can be passed on by the producer to the consumer who buys the item. Moreover, ... in some cases additional testing of drugs before they are marketed might reveal dangerous side effects, resulting in a safer product. [<J0 But there is an important distinction between prescription drugs and other products such as construction machinery [citations], a lawnmower [citation], or perfume [citation], the producers of which were held strictly liable. In the latter cases, *1139the product is used to make work easier or to provide pleasure, while in the former it may be necessary to alleviate pain and suffering or to sustain life. Moreover, unlike other important medical products (wheelchairs, for example), harm to some users from prescription drugs is unavoidable. Because of these distinctions, the broader public interest in the availability of drugs at an affordable price must be considered in deciding the appropriate standard of liability for injuries resulting from their use. [*][] Perhaps a drug might be made safer if it was withheld from the market until scientific skill and knowledge advanced to the point at which additional dangerous side effects would be revealed. But in most cases such a delay in marketing new drugs—added to the delay required to obtain approval for release of the product from the Food and Drug Administration—would not serve the public welfare. Public policy favors the development and marketing of beneficial new drugs, even though some risks, perhaps serious ones, might accompany their introduction, because drugs can save lives and reduce pain and suffering. If drug manufacturers were subject to strict liability, they might be reluctant to undertake research programs to develop some pharmaceuticals that would prove beneficial or to distribute others that are available to be marketed, because of the fear of large adverse monetary judgments. Further, the additional expense of insuring against such liability—assuming insurance would be available—and of research programs to reveal possible dangers not detectable by available scientific methods could place the cost of medication beyond the reach of those who need it most.” (Brown, supra, at p. 1063.) This court, by exempting prescription drug manufacturers from strict liability under such circumstances and thereby refusing to “pre-allocate” the burden of the costs on the manufacturers of prescription, indicates it has determined that the benefits to society from prescription drugs did not warrant the imposition of a doctrine of strict liability. Strict liability of necessity preallocated the burden of the costs to the manufacturer rather than the consumer, even when the risk was known or unknown.
Second, by requiring the plaintiff to prove what the defendant knew, i.e., focusing on the defendant’s conduct, the second primary purpose of the doctrine, which is “to relieve an injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of action” (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 431), has been largely defeated. In Brown, this court noted, “Strict liability differs from negligence in that it eliminates the necessity for the injured party to prove that the manufacturer of the product which caused injury was negligent. It focusses not on the conduct of the manufacturer but on the product itself, and holds the manufacturer liable if the product was defective.” (Brown, supra, 44 Cal.3d at p. 1056.) Further, in Brown, the traditional failure to warn rule was identified as follows; “The test stated in comment k is to be distinguished from strict *1140liability for failure to warn. Although both concepts identify failure to warn as the basis of liability, comment k imposes liability only if the manufacturer knew or should have known of the defect at the time the product was sold or distributed. Under strict liability, the reason why the warning was not issued is irrelevant, and the manufacturer is liable even if it neither knew nor could have known of the defect about which the warning was required. Thus, comment k, by [focusing] on the blameworthiness of the manufacturer, sets forth a test which sounds in negligence, while imposition of liability for failure to warn without regard to the reason for such failure is consistent with strict liability since it asks only whether the product that caused injury contained a defect. [Citation.]” (Id. at p. 1059, fn. 4.) As several courts have noted, where the issue is a known or knowable risk “ ‘concepts from negligence law have been amalgamated into the doctrine of strict liability ....”’ (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 700 [200 Cal.Rptr. 870, 677 P.2d 1147], quoting Carmichael v. Reitz, supra, 17 Cal.App.3d at p. 988.) Under California law, the doctrine of strict liability relieved plaintiff from having to prove defendant’s negligence in appropriate cases. (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 431.) However, the practical effect of requiring plaintiff to prove that defendant acted in spite of a known risk, under a standard which everyone agrees is riddled with negligence concepts, is to heighten plaintiff’s burden of proof in the failure to warn context. Further, unlike strict liability where the reason for the failure to warn is irrelevant, drug manufacturer responsibility is measured by what it knew and its blameworthiness for failing to have warned. (Brown, supra, 44 Cal.3d at p. 1059.) Thus, the two fundamental policies behind the doctrine as set out in Greenman and its progeny are not being served. Continuing to adhere to the legal fiction that there is “strict liability” in failure to warn cases in the prescription drug context serves no purpose other than to add confusion to an already complex and obscure segment of the law.
It has been argued by a portion of the bar that Anderson and Brown may have contributed to the confusion in this area. What is clear from both these opinions is that contrary to defendants’ position, and in accord with Justice Mosk’s majority opinion in this case, at least in prescription drug failure to warn cases there is a “hybrid standard” which is neither strict liability nor ordinary negligence. The theory of failure to warn in the context of prescription drugs is not “strict liability” because it requires proof of defendant’s conduct and requires an inquiry into what is known. After Brown, the focus is on what the manufacturer knew and when it knew it. In other words, unlike strict tort liability, the focus is in fact on the defendant’s conduct.
In addition, as Justice Baxter points out, Brown, based on comment k to section 402A of the Restatement Second of Torts, recognized a public policy *1141exception to strict liability for prescription drugs. However, liability is not measured by ordinary negligence standards. Anderson and Brown have made it clear that the infusion of negligence principles into failure to warn cases while modifying the very essence of the doctrine of strict liability did not completely erase the fundamental policies which were inherent in its creation. Stated another way, the infusion of negligence principles into failure to warn cases, which did not quite amount to “strict liability” but which was not as simple as “ordinary negligence,” did not completely obliterate the policies behind maintaining a heightened standard of care for manufacturers of products with known risks (Anderson, supra, 53 Cal.3d at pp. 995-996 [asbestos manufacturer]) including prescription drug manufacturers. (Brown, supra, 44 Cal.3d at pp. 1069-1070 & fn. 12.) A drug manufacturer does not escape all liability for defective drugs. As Anderson stated: “Our decision [in Brown] did not affect the continued validity . . . regarding liability for known and knowable risks .... ‘Our conclusion [in Brown] does not mean, of course, that drug manufacturers are free of all liability for defective drugs. They are subject to liability for manufacturing defects, as well as under general principles of negligence, and for failure to warn of known or reasonably knowable side effects.’” (Anderson, supra, at pp. 999-1000, original italics.) Accordingly, although not strict liability, defendant’s potential responsibility should be measured by a standard other than negligence.
B. The Non-strict Nature of Drug Manufacturer Liability for Failure to Warn of a Known Risk
Whatever may have been the concept of strict tort liability at one time, the emergence of defenses and modifications to this area of law has made drug manufacturers anything other than strictly liable for failing to warn of a dangerous defect in a drug. The plaintiff’s evidentiary burdens and available defenses render the failure to warn something other than a matter for which a manufacturer may be strictly liable. For example, this court has recognized that if a strict tort liability plaintiff acted in a comparatively negligent fashion, the defendant’s financial responsibility can be diminished. (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 325 [146 Cal.Rptr. 550, 579 P.2d 441]; Daly v. General Motors Corp., supra, 20 Cal.3d at p. 742.) Furthermore, as the majority notes, if the Food and Drug Administration prohibits disclosure of even a known risk, there may be no strict tort liability.1 (Maj. opn., ante, at pp. 1114-1115.) Moreover, if the known risk is remote, as the majority notes, there is no liability for failure to warn in the *1142drug prescription context. As this court noted in Finn v. G. D. Searle & Co., supra, 35 Cal.3d at page 701, “Moreover, both common sense and experience suggest that if every report of possible risk, no matter how speculative, conjectural, or tentative, imposed an affirmative duty to give some warning, a manufacturer would be required to inundate physicians indiscriminately with notice of any and every hint of danger, thereby inevitably diluting the force of any specific warning given.” Given the foregoing limits on a drug manufacturer’s liability for failure to warn of a known risk, the potential liability is not strict in my view. It can be characterized as a “hybrid” form of financial responsibility or perhaps “stricter” liability. But when all is said and done it is not “strict” liability.
C. Conclusion Concerning Known Risk
To sum up, I would suggest that the term “strict liability” does not accurately define the scenario where a drug manufacturer fails to warn of a known risk. This court’s rule articulated in Brown and slightly modified today deviates from the nature of strict liability. Also, the rule for drug manufacturers contravenes the fundamental purposes of strict liability for the well-stated public policy reasons articulated in Brown. (Brown, supra, 44 Cal.3d at pp. 1063-1064.) Finally, this court’s decisions have made it clear there is nothing strict about the liability of a drug manufacturer for failing to warn of a known risk. The test of liability is inextricably intertwined with negligence concepts. Although different from a negligence theory for the reasons expressed by the majority as well as in Brown and Anderson, drug manufacturer responsibility liability is no longer measured in terms of what is otherwise known as strict tort liability.
II. Knowable Risks
The fourth cause of action for failure to warn does not explicitly allege defendant neglected to advise plaintiff’s physician of a knowable risk. The fourth cause of action alleges: “Plaintiff hereby incorporates herein as though again set forth in full, all of the allegations contained in paragraphs 1-14 of the General Allegations as well as paragraphs 15-34, and each of them, in the First, Second and Third Causes of Action. [U Defendants, and each of them, placed on the market and offered for sale the prescription drug Halcion, knowing that Halcion would be prescribed to health-care patients by their physicians, and that the drug would be used and/or relied upon by health-care patients, including plaintiff herein, as treatment for, amongst *1143other things, insomnia. [‘JQ At all times alleged herein, Halcion was defective and/or unfit for its intended use in that Halcion was known to and did cause severe physical, mental and emotional damages/injuries to those health-care patients, including plaintiff herein, prescribed Halcion who took it for its intended purpose. [<JQ Defendants, and each of them, failed to warn and/or adequately warn foreseeable health-care patients, and plaintiff herein, in particular, that Halcion was defective and/or unfit for its reasonably foreseeable use and that Halcion contained the dangerous propensities alleged herein.” However, the fourth cause of action incorporates by reference the negligence claim. The negligence claim is in the second cause of action which contains allegations defendant negligently failed to advise plaintiff’s physician of the probable adverse side effects of Halcion. Liberally construed, the fourth cause of action sufficiently alleges the second form of potential failure to warn liability—neglecting to advise plaintiff’s physician of a knowable risk. (Code Civ. Proc., § 452;2 King v. Central Bank (1977) 18 Cal.3d 840, 843 [135 Cal.Rptr. 771, 558 P.2d 857]; Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 244-245 [74 Cal.Rptr. 398, 449 P.2d 462].)
In Brown, this court described the test for drug manufacturer’s test of liability for failure to warn of a knowable risk as follows: “They are subject to liability for manufacturing defects, as well as under general principles of negligence, and for failure to warn of known or reasonably knowable side effects.” (Brown, supra, 44 Cal.3d at p. 1069, fn. 12, italics added.) Anderson used various terms for describing drug manufacturer liability for failing to advise a tort plaintiff’s physician of a knowable adverse side effect of a prescription drug. Anderson used the following tests for describing manufacturer liability for failing to warn of a knowable risk: “constructive knowledge” in varying contexts (Anderson, supra, 53 Cal.3d at pp. 990, 999 & fn. 12, 1000); “should have known of the risks” (id. at p. 997); “knowability” (id. at pp. 997 & fn. 10, 999-1000, 1003); “ability to know” (id. at p. 998); “reasonably scientifically knowable” (id. at p. 999); and “ ‘reasonably knowable side effects.’ ” {Id. at p. 1000.) Anderson excluded from the scope of strict tort liability failure to warn cases “scientifically unknowable dangerous propensities” (id. at p. 995) and utilized the word “unknowable” in several contexts. (Id. at pp. 998-999, 1002, 1003, fn. 14.) The foregoing language is also repeatedly utilized in varying forms by the majority in this case.
I disagree with plaintiff’s argument that there is a meaningful distinction between the failure of a drug manufacturer to warn of a reasonably scientifically knowable risk, the test quite rightly articulated by the majority and *1144established in Brown, supra, 44 Cal.3d at page 1069, footnote 12, and whether such neglect creates a situation where a reasonably prudent drug manufacturer has acted negligently. Stated differently, there is no meaningful distinction between plaintiff’s failure to warn of a knowable risk and negligence theories. Further, the distinctions when presented to a jury are ephemeral and confusing. Hence, I would hold that the failure to warn of a knowable risk, as defined in Brown, is purely negligence.
The test of negligence was described by this court in Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d 685, 884 P.2d 142] as follows: “ ‘[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ (Rest.2d Torts, § 282.) Thus, as a general proposition one ‘is required to exercise the care that a person of ordinary prudence would exercise under the circumstances.’ [Citations.] Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. [Citations.]” (Fn. omitted.) In the past, this court has identified the relationship between reasonable conduct and liability of medical care professionals as follows: “Obviously we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise ‘that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances.’ [Citations.] Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 438 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].) These principles of negligence which always involve an evaluation of the unreasonableness of the potential tortfeasor’s conduct are well established tenets of California law. In Crane v. Smith (1943) 23 Cal.2d 288, 298 [144 P.2d 356], relying upon the Restatement First of Torts, this court held: “As in all cases where a standard of conduct is involved, the reasonable character of the care depends upon whether the interference with the actor’s own affairs is warranted by the other’s danger. The broad concept underlying the determination of reasonableness of conduct in tort law is stated as follows: ‘Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.’ [Citations.]” *1145The Restatement Second of Torts adopted the same analysis. (Rest.2d Torts, §291, pp. 54-56; accord, 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 750-751, pp. 87-90.)
Simply stated, the foregoing statements of negligence law are permeated by the application of principles of reasonableness, and so is failure to warn in the context of a knowable risk. This court in Brown articulated a test permitting liability for failure to warn of reasonably knowable side effects. That is the functional equivalent of negligent conduct. If a drug manufacturer does not warn a tort plaintiff’s physician of a reasonably knowable adverse risk of the drug, then in virtually every conceivable scenario, such failure would constitute negligence. Conversely, the failure to warn of a risk which is not reasonably knowable would not be negligence in any foreseeable context.
The only situation plaintiff posits for her contention there is a meaningful difference between negligence and failure to warn of a knowable risk theories involves an extraordinarily hypothetical possible industry-wide practice of failing to disclose an unreasonably dangerous side effect of a drug. She argues that drug manufacturers could adopt an industry-wide practice of not advising of particular side effects. This she reasons would defeat a negligence claim. No doubt, an industry-wide practice may be admissible as evidence of whether a corporation or decisionmaker of ordinary prudence would act negligently in not advising as to the dangerous side effects of a drug. (Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 809 [148 Cal.Rptr. 22, 582 P.2d 109, 7 A.L.R.4th 642]; Perumean v. Wills (1937) 8 Cal.2d 578, 583 [67 P.2d 96].) Of course, such evidence would not be conclusive as a matter of law as to the standard of care in the industry. (Bullis v. Security Pac. Nat. Bank, supra, at p. 809; Polk v. City of Los Angeles (1945) 26 Cal.2d 519, 531-532 [159 P.2d 931].) However, if the drug were unreasonably dangerous, the conduct would in virtually every imaginable circumstance be a negligent act. In fact, most jurors would be offended by such a practice. Moreover, if the danger were known, the manufacturer would be liable under the first prong of Brown', viz., failure to warn of a known risk.
Finally, creating a separate basis of liability for negligence and failing to warn of a reasonably scientifically knowable risk can only create confusion among jurors. Consider the confusion jurors experience when they read in the jury room BAJI Nos. 3.11, in which a test for negligence is provided, and 9.00.7, which delineates failure to warn principles. BAJI No. 3.11 states; “One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of *1146ordinary prudence had been in the same situation and possessed of the same knowledge, [he] [or] [she] would have foreseen or anticipated that someone might have been injured by or as a result of [his] [or] [her] action or inaction. If the answer to that question is ‘yes’, and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.” Similar language appears in BAJI No. 9.00.7, which states as follows in part: “A product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer knows or should have known of the danger, but fails to give adequate warning of such danger. [<J[] [A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger of which the manufacturer either is aware or should be aware, and that would not be readily recognized by the ordinary user.]” Jurors will be confused when attempting to sort out negligence where a person would foresee or anticipate an injury from failure to warn of a danger the manufacturer should have known about. I have sat as a juror and seen how jurors can become overwhelmed and perplexed by comparatively simple legal concepts related in written instructions. Plaintiff’s effort to distinguish negligence from failure to warn of a knowable risk liability is so ephemeral and likely to confuse and confound those in the fact-finding process, it should be abrogated particularly given the public policy concerns articulated by Justices Kennard and Baxter. (Conc. and dis. opn. of Kennard, J., ante, at pp. 1119, 1126, 1127-1129, 1131-1132; dis. opn. of Baxter, J., post, at pp. 1146-1147.)
III. Conclusion
I would affirm the opinion of the Court of Appeal insofar as it reverses the order of dismissal following the sustaining of the demurer without leave to amend.
Presiding Justice, Court of Appeal, Second Appellate District, Division Five, assigned by the Acting Chief Justice pursuant to article VI, section 6 of the California Constitution.
Insofar as the majority argues that a Food and Drug Administration prohibition against revealing a known or knowable risk is not a complete defense to a strict tort liability cause of action, I respectfully disagree. If a manufacturer is lawfully precluded by the government of the United States of America from advising of a risk, then California, a subordinate political *1142entity, ought not punish by means of its tort liability laws a person or drug manufacturer that obeys federal law. This is not necessarily an issue of the supremacy clause (U.S. Const., art. VI, cl. 2), it is a commonsense rule California and any other state ought to follow in the development of its common law. In this respect, I agree with Justice Baxter.
Code of Civil Procedure section 452 states: “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”