Perhaps it was a toy that you bought for your children. Maybe it was a microwave you bought for the household. Or perhaps it was a lawnmower. Historically, there have been many times when products didn’t operate in the way they were intended – and someone got seriously hurt as a result.
Negligence is the basis for any personal injury lawsuit. When negligence plays a role in product design, manufacturing or marketing (a failure to warn appropriately), the area of law that applies is called “defective products,” “product liability” or “strict products liability.”
Product liability law exists to protect consumers who are injured by faulty devices or poor warning labels.
Determining which type of defective products case applies depends on the manufacturer’s intent when the product was created. It is also important to examine supply chain management and where in the process things failed. (Was it the original producer? Did it get damaged in transit? Did the end user alter the final product to make it more dangerous?)
There are 3 main types of faulty product claims.
If a product was designed poorly or was not adequately tested, this likely means that the product will be below standards and dangerous to use. This aspect of a product liability cases focuses on the manufacturer’s decisions when making the product. How did they plan it? Was there a defect in the design that made it unreasonably dangerous?
Even a perfectly made product can endanger the end-user if the defect was part of its design. A product is unreasonably dangerous if it does not perform as expected when used in its intended manner.
Some examples of design defects include the following:
Liability exists where there is a foreseeable risk posed by the product when it was used for its intended purpose. Many states require the plaintiffs show that the risk could have been mitigated by adopting an alternative design that was economically feasible and in harmony with the product’s intended purpose.
For example, could the defendant still make a toy train without lead paint in a way that would not cost too much?
You’d need the estimated cost of non-lead paint and the estimated cost of lead paint, multiplied by the estimated number of little children with lead-related injuries. If the cost of non-lead paint is less than the cost of medical bills, then the non-lead paint option would be considered economically feasible.
As crass as it sounds, most product liability cases live and die around how much is “too much.” To answer this, courts discuss what’s known as the “cost-benefit analysis.” They estimate the additional cost of the safer design against the cost of the damage incurred if the modification isn’t made. This can also include costs like medical bills and lawsuits.
Some jurisdictions still use the “consumer expectations test,” in which the court asks whether the danger posed by the product goes beyond the consumer’s ordinary expectations. However, since that is a very subjective standard, most jurisdictions have left it behind.
Failure to warn
Also called “marketing defects,” this form of negligence focuses on actions in the supply chain. The product was properly designed, but it did not have the correct instructions or warnings. This lack of guidance made the product unreasonably dangerous to its intended consumers.
Some examples of failure to warn include the following:
A manufacturer has 2 related duties when creating instructions: 1) they have to warn users of hidden dangers that might be present in the product, and 2) they must instruct users how to use that product safely.
Even if the product were designed to be safe, perhaps the end result did not reflect that design. If that product then causes an injury to its intended user, the manufacturer can be held liable.
Some examples of manufacturing defects include the following:
Unlike a design defect, the manufacturer did not plan for a defect in this case. Damages in this case will be determined by strict liability, which means the manufacturer is responsible for any injuries despite the level of care they took in making the products.
If a plaintiff can prove that a defect caused their injuries and also provide proof that eliminates other possible causes, then the plaintiff can prove causation – even if the original product is damaged or lost. This is called the “malfunction doctrine.”
In a product liability suit, the plaintiff has to prove 4 things in order to successfully recover damages:
As you might imagine, defective products lawsuits are very expensive for manufacturers to defend. Because of this, they will do whatever they can to stop them before they gain any traction.
Defendants often try to remove defective products cases from state court to federal court.
Because being under federal jurisdiction offers different pleading standards, efficient uniform evidentiary and procedural rules, more diverse juries, and vigorous expert discovery. By removing a case, defendants can gain leverage to force the early resolution of a claim.
However, certain factors must be met in order for defendants to remove a claim to federal court. For instance, the federal court must also have original subject matter jurisdiction, or the product must have been manufactured according to federal specifications.
There are a few defective products cases that most folks can name off the top of their head, like the Hot Coffee Case. Liebeck v. McDonald’s is made fun of often, because the customer received a cup of coffee, spilled it on her lap and claimed it had scalded her.
“Give me money, McDonald’s!”
Seems basic, right?
In fact, the coffee was so boiling hot that Liebeck required skin grafts for her third-degree burns. She was in the hospital for 8 days. It was discovered that McDonald’s routinely served coffee much hotter than standards allowed because they wanted it to stay warm for as long as possible. Burn hazards exist when liquid is more than 140 degrees; McDonald’s coffee was 185 degrees, plus or minus a few digits, to “maintain optimum taste.” That can cause third-degree burns in less than 10 seconds.
What about Dow Corning, an implant company that allegedly made rupturing silicone breast implants?
Well, a jury found that the company failed to warn of potential risks, had breached its warranty, committed fraud, and designed a total failure of a product. They awarded $7.3 billion in a defective products case to Mariann Hopkins, whose ruptured implants caused an immune system disease.
Defective pharmaceuticals are another area of law, and they also fall under product liability cases. Merck Pharmaceuticals ended up paying more than $4.85 billion for problems associated with Vioxx, an arthritis drug that had some nasty side effects, including heart attacks and strokes.
A plaintiff received $150 million in punitive damages, but no compensatory damages, in a case against AbbVie, Inc. The company manufactured AndroGel, a drug to treat low testosterone. The jury found that AbbVie fraudulently misrepresented safety risks. However, they also decided that the product did not cause the plaintiff’s alleged injury, meaning that the plaintiff did not win his strict liability and negligence claims.
However, the manufacturer was forced to pay punitive damages because they knew that the product could cause heart disease, heart attacks and strokes, but did not adequately warn their consumers and put it on the market anyway.
The Consumer Product Safety Commission issued a final rule in October 2017 that prohibits the manufacture for sale, offer for sale, distribution or importation of toys and child care products that contain more than 0.1% of 5 phthalate chemicals. This rule took effect on April 25, 2018. These phthalates, or “plasticizers,” make plastic toys softer and more pliable, but can become toxic when kids put the toys in their mouths.
Defective product plaintiffs are sympathetic to juries and judges, and many times the cases are catastrophic in their damage. This has led some states to “cap” (or limit) compensation for victims in civil lawsuits.
Most of these limits focus on non-economic damages, though a few states cap both economic and non-economic damages. Some states have found their cap laws for pain and suffering unconstitutional, as Florida did 2017.
Caps declared unconstitutional or legislatures have not re-passed (4 states): FL, IL, NH, WA
Source: CJ&D at New York Law School
After you’ve been injured by a faulty product, choosing a product liability attorney is the most important decision you will have to make. Do careful research before selecting a product liability attorney. This is a highly concentrated field, and each product defect is a specialty in and of itself.
Believe it or not, some attorneys specialize in things like foodborne illness or children’s toy malfunctions.
If your daughter’s Easy Bake Oven™ set the house on fire because of a wiring malfunction, you don’t want to pick an attorney who specializes in tuna and mackerel. Most law firms will have a roster of attorneys to whom they can send you for a consult if it’s not their area of expertise.
Make sure to look for a defective product attorney who knows product liability law, makes you feel at ease, who puts your needs first and who devotes the necessary time to your case. Read lots of reviews and ask people who have used product liability attorneys before.
Also, keep in mind that it makes a big difference if your selected attorney normally works with manufacturers or plaintiffs. While a product liability attorney who typically defends companies might be able to anticipate the other side’s actions, this also could be a detriment because they are used to playing for the other team.
Here are some questions to ask before picking a lawyer:
Picking an attorney is the hardest part. When you finally sit down with him or her, you’ll want to have everything ready: hospital bills, medical reports, receipts from the manufacturer, the product in question, and anything else related to your case.
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