Product liability claims arise where a person contends that a particular product is defective in some way and that defect has produced injury. Product liability claims can be complex, not just because they involve a mix of personal injury law and contract law but because they generally require the use of expert witnesses to address complex issues.
Personal Injury-Product Liability Claims Involve Defective Products
These products may be:
- Children’s toys
- Firearms
- Food and agricultural products
- Machinery and tools
- Medical products and devices
- Motor vehicles
- Exercise equipment
- SUV rollovers
- Pharmaceutical products
- Recreational products
What To Do If Injured by a Defective Product
- Keep the product in a safe and secure location. Gather all of the documents relating to the product
- Never return the product to the manufacturer or to the insurance company for testing
- Contact an experienced attorney if you have a question about a product liability issue.
Product Liability Issues Need to be Thoroughly Understood
In looking at the product, figure out what is its intended use. Next, figure out what is its actual use. Product defect cases fall into three groups: defective design, defective manufacturing and failure to warn. The basic principles of safe product design are:
- Design out the defect so that the hazard is gone.
- If the hazard cannot be designed out, then build in safety devices. These may be guards or locks to prevent injury
- Provide warnings if such are needed.
Who Can Sue or Be Sued for Product Liability Injuries
You don’t have to be the buyer of the product to sue for damages. If you were injured by a defect in a product, you may recover damages. For instance, assume your mother bought you a new shampoo to use. After one application of the shampoo, you experience hair loss. Even though your mother was the buyer, you suffered the ittjury caused by the shampoo. Therefore you may sue the maker.
Product User
In addition you don’t have to be using the product at the time of injury to sue for damages. For instance, your neighbor is mowing his lawn. The lawnmower blades flies off and strikes you in the face. You may sue for damages because the defective product caused your injuries.
Who Can Be Sued
Any patty that is in the chain of distribution may be sued. This chain is the path that the product takes from factory to retail store. Makers are at the sta1t of the chain. This may include the maker of the part with the defect. The maker of the overall product may be liable because they used the defective pmt. For instance, you buy a Ford Taurus. The tire on the car explodes causing you to drive into a tree and suffer neck injuries. You can sue Ford who made the car. Also you can sue the tire maker.
In addition retailers may be liable. They put the product within the chain of distribution. Wholesalers and distributors make up these middle men. They may be liable.
Personal Injury-Product Liability Legal Theories
The legal theories that are used in product liability cases are negligence, breach of warranty and strict liability. Strict liability is not allowed in Virginia in this context. Therefore we are limited to two theories. Strict liability and breach of warranty are much the same. As a result the loss of strict liability in Virginia is not a big deal.
The negligence theory focuses on human conduct. In other words some fault by someone handling the product. It may be the maker, the seller or distributor. The warranty theory has its focus on the product. In other words does the product do what it is intended to do safely. The warranty may be one that is expressed or may be implied. The express warranty is stated either orally or more often in writing. The implied warranty is not expressed but arises by law or by conduct of the parties. For instance it is implied that the product is reasonably fit to be used for its intended purpose. Call or contact us for a free consult.
The Issue of Duty
Sometimes in regard to a product case, there may be an issue of service, maintenance or repair. In those types of cases, there may be an issue of what is the duty. Is the duty simply a contractual duty or is it a tort duty? There is no tort liability for simply what is called “nonfeasance” i.e., a failing to do what one has promised to do in the absence of a duty to act apart from the promise made. There may however be tort liability for acts of misfeasance. That is, a failure to maintain, service or repair correctly.
Post-Sale Duty to Warn
The Virginia Supreme Court has not expressly adopted a post-sale duty to warn. However most of the federal courts in Virginia that have addressed the issue have concluded that the Virginia Supreme Court probably would adopt a post-sale duty to warn.
Product Liability Litigation – Research Sources
Product liability suits can be complex. There are a number of sources (to activate the link highlight and right click) for research dealing with these types of cases:
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- www.recalls.gov is a site where you can search the records of each major federal product safety agency for recall information. It also links to agency websites with more info.
- www.cpsc.gov is the website of the Consumer Product Safety Commission. It provides info on product safety rules and injury statistics.
- www.saferproducts.gov is a site where you can search reported product complaints.
- www.fda.gov is the site of the FDA which provides detailed prescription drug information. It also has adverse event reports.
- www.epa.gov is a site that reports info on pesticides and herbicides.
- www.nhtsa.gov is the site of the National Highway Traffic Safety Administration with research and standards on traffic and vehicle safety.
More Sources
- Also you may want to check the Occupational Safety and Health Administration for potential reports of industry accidents.
- A FOIA request may well be in order to make sure that you have any government agency reports relating to the incident. Instructions on how to file such a request are available at www.foia.gov.
- www.astm.org is an excellent site for finding standards.
- www.ansi.org has a searchable database.
- Underwriters’ Laboratories maintains a website that may have useful info.
Personal Injury-Product Liability Litigation Issues
In the course of a product liability lawsuit there are a number of recurring issues:
- The no prior accident defense.
- The state secrets defense.
- The government contractor defense.
- Has a standard been violated.
- Deciding to sue or not to sue a foreign manufacturer.
Other Similar Incidents
In most product liability cases the defendant will claim no other similar incidents. However to rely on that the defense must show that if there had been some they would have known about them. In other words they must show there was in place a means to check on the safety of the product. In addition there must be a record keeping system to record complaints or injuries. That evidence must be offered before a lack of prior accidents should be admissible. In other words the defense must show:
- It would have known of prior accidents if they had occurred.
- The number of units sold and the extent of prior use.
- Also all of this must relate to the same product used in similar circumstances.
See on this site the post dealing with other similar incidents.
State Secrets
In suits involving products made for the U.S. the maker may assert the state secret privilege. That privilege is a common law rule that protects info from discovery when such would be contrary to the national interest. However this rule in some instances may be used by the defendant if the privilege itself would deprive the defendant of a valid defense. In other words there is evidence that the defendant cannot present because of the state secret privilege. The Court will have to address how that issue will be resolved. Call, or contact us for a free consult.
Government Contractor
A related defense is the government contractor defense. This turns on whether the government approved precise details for the product. For instance if the product conformed to those details and the maker warned the government about dangers then the maker may be protected.
What Standards Apply
The standards that apply to the product may be governmental (state or federal codes) or non-governmental. The latter standards may be those published by the American National Standards Institute (ANSI), Underwriters Laboratory (UL) or the American Society of Safety Engineers.
Foreign Maker
Another recurring issue in product liability suits is the need to sue a foreign maker who made a part or put the product together. That maker must have had minimum contacts with the state where the suit is filed.
Many of these foreign companies are based either in Japan or China. To effect service on a company that is based in Japan, you must comply with the Hague Service Convention. There are a number of hoops to jump through under that law.
Service on a company in mainland China must likewise follow the same law but the specific requirements are different. All of those need to be strictly complied with.
Judgment
If you get a judgment against a company based in Japan, there are a new set of problems in terms of enforcing it. The U.S. is not a party to any judgment recognition treaty. Likewise Japan is not a party. Therefore there is a separate suit that must be brought in Japan to enforce the judgment.
If your judgment is against a company in mainland China, then enforcement is even more difficult. For the most part U.S. judgments are not recognized by the Chinese courts. However a U.S. judgment can be taken to some other country where that debtor has some exposure and potentially enforced there.
Foreign Manufacturers-Defective Drywall
The Chinese drywall cases lingered for years. Drywall is created from gypsum. This is a soft sulfate mineral that is converted into powder. It is then used to make the drywall boards. Gypsum is mined or produced synthetically. It should be inert and nonreactive. However the gypsum from China contains sulfur. Sulfur emits toxic gases. These gases corrode copper, silver and other metals. In other words they can corrode electrical wiring, air conditioning coils, plumbing fixtures and electronic appliances. Finally the corrosion can create fire hazards.
The first clue was the rotten egg smell emitted. In those homes where this product was installed, there was a rash of broken air conditioners. This was from corroded air conditioning coils and ground wires in electrical sockets.
A threshold question was what a reasonable supplier, distributor, installer or contractor should do to prevent defective products from entering the home. In the case of drywall, a commonsense test could be applied. The product smelled. No distributor could miss that.
For Claims Against Foreign Makers, Look To Federal Law
Under the policy statements issued by the CPSC importers are subject to the same responsibility as domestic manufacturers.
Likewise, under the National Traffic and Motor Vehicle Safety Act, importers of autos for resale are deemed to be the maker of the imported product.
The U.S. has taken the lead in setting standards for foreign manufacturers. The inter-agency working group on import safety has created a framework. This addresses efforts to insure the import of safe foreign products. For instance, this agency advises that these foreign makers be subject to detailed contracts. The contracts should lay out the process by which the product is going to be made. Also it should call for site visits by the U. S. maker. In addition there should be some system of review of that maker in the foreign land. This is all to provide basic standards as to design, manufacture and quality control. The goal is to make sure that the U.S. importer maintains control. Failure to do so may be negligence. Call or contact us for a free consult.
Product Misrepresentation
Product misrepresentation may be an issue in any product liability case. If the product is a child’s toy, then you must find out how it is portrayed in ads. Is the toy is used in a violent fashion in ads? If so then it is reasonable to expect that a child may use it in that fashion.
The ads that baby oil is pure and gentle may be a basis for liability if the danger from inhalation is not set forth. Also the mere appearance of the product may be a form of representation. For instance a piece of construction equipment on its face may appear to be stable. However it may still tip over. If that danger is not disclosed, then how the equipment appears may be a basis for liability.
Foreseeable Risk of Product Misuse
Product misuse is a defense asserted in many product liability claims. It may be a bar to the claim. The term “product misuse” is a bit of a misnomer. The maker will t1y to classify the use in question as a misuse. However courts apply a definition to mean a use that is not reasonably foreseeable. As such, the use may not be intended by the maker but it may still be reasonably foreseeable. In that event, it should not be misuse. The placement of a towel on a sauna heater may not be an intended use. However it is a foreseeable use. Therefore the maker has a duty to reduce or avoid the risk or warn of the danger.
The Restatement of Torts (Third) states in §2 that a seller will be liable only if a plaintiff is harmed while using the product in a reasonably foreseeable manner and if the risk of harm was reasonably foreseeable. It should be kept in mind that the plaintiff has this burden. Call or contact us for a fee consult.
Personal Injury-Product Liability Litigation Questioning
In the course of product liability litigation the deposition of the manufacturer’s designee may be critical. This designee needs to be someone who can address the design, manufacture, distribution and intended use of the product. A fruitful line of questioning of such a witness may consist of the following:
- Does the witness believe that a company that designs, makes or sells a product should know rules and standards intended to protect the user?
- Does the company follow the applicable regulations or standards and if so, why?
- Finally must a responsible company follow the standards in order to prevent injury to the user?
These may lead to certain concessions from the defense witness.
Contact Us
If you have been injured as a result of a product defect and feel as though you have a claim for relief, contact us. Brien Roche is a Fairfax, Virginia and Washington D.C. product liability attorney.
For more information on product liabilyt matters see the other posts on this site:
product liability specific legal issues
product defect specific cases
