Perhaps it was a toy train that you bought for your children. Maybe it was a microwave you bought for the household. There are times when products just do not operate in the way they were intended – and that train set has small parts your kid can swallow, or the microwave explodes.
Negligence is the basis for any personal injury lawsuit. When the negligence is in relation to product design or manufacturing or a failure to warn appropriately, the area of law that applies is called defective products, product liability or strict products liability. This means that the intent is irrelevant, as long as the product was indeed defective.
Determining which type of defective products case applies depends on the manufacturer’s state of mind when the product was created. It also examines 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?)
As one 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.
They do this 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 have some 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, such as the federal court also having original subject matter jurisdiction or whether the product was manufactured according to federal specifications.
There are a few cases that anyone 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?
Not so. The coffee was in fact so boiling hot that Liebeck required skin grafts for her third-degree burns. She was in the hospital for eight 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 popular topic, 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.
2017 was a big year for product liability. Let’s take a look at three different cases.
A plaintiff received $150 million in punitive damages, but no compensatory damages, in a case against AbbVie, Inc.; they manufactured AndroGel, a drug to treat low testosterone. The jury found that AbbVie had 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. So basically, the manufacturer 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 CPSC, or 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 five phthalate chemicals. This will take effect on April 25, 2018. It’s taken about 10 years to get to this point; these phthalates, or “plasticizers,” make plastic toys softer and more pliable, but we all know how often little kids put toys in their mouths.
Let’s talk about everyone’s favorite company, Monsanto. They have been challenging California’s decision to add glyphosate to the Proposition 65 list. This is also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, and it’s codified in California’s Health and Safety Code. This keeps businesses from releasing chemicals “known to the state to cause cancer or reproductive toxicity” into drinking water. They also need to provide “clear and reasonable” warnings if people are exposed. As of right now in January 2018, there are more than 900 chemicals on the list. In 2015, California issued a notice of intent to add glyphosate to the Proposition 65 list, since it’s “probably carcinogenic to humans.”
Monsanto has been fighting this hard. The state Supreme Court rejected their request to stay a lower court’s decision to add the chemical to the list and included it on July 7, 2017. Monsanto has until July 7, 2018 to comply with the list’s requirements. They still have challenges pending in lower courts, so only time will tell if they must add labeling that notifies consumers of possible cancer risks.
Defective product plaintiffs are sympathetic, and many times the cases are catastrophic in their damage. This has led some states to cap compensation for victims in civil lawsuits.
Most of these focus on non-economic damages, though a few states cap both economic and non-economic damages. Some states eventually found their cap laws unconstitutional, like Florida did.
Non-economic damage caps (11 states): AK, CO, ID, KS, MI, MD, MS, OH, OK, OR, TN
Caps declared unconstitutional or legislatures have not re-passed (4 states): FL, IL, NH, WA
Source: CJ&D at New York Law School
As you can see, this is a highly specialized area of law. 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.
If you need someone to help you, consider some of the resources below and explore the Enjuris directory of attorneys to find one who is well practiced in this area.
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