May 09, 2008
Defective Products and Product Liability Claims
The recent recalls of millions of laptop computer batteries by Dell, Apple and Sony, while decidedly inconvenient, had the beneficial side effect of causing people all over the world to take a closer look at product safety.
It’s an important issue. Every year, Americans are injured or killed by products that were either poorly designed, poorly manufactured, or were improperly labeled. The National Consumer Product Safety Commission has a list of recalled products ranging from fireplaces to candles to lawnmowers. In August of 2006 alone, the CPSC initiated over 35 product recalls. That averages out to around one recall a day.
Even though the national trend has been very pro-business lately, the law still protects the rights of those that were injured by simply using a product that was readily available for purchase. Having an attorney with a proven track record of successful product liability cases is crucial to obtaining fair compensation for your injuries.
The Law Offices of Jeremy Flachs represents residents of Virginia and the District of Columbia who have been injured or have lost loved ones through no fault of their own. To that end, we have made product liability cases a priority and are accepting cases involving household appliances, pharmaceuticals, power tools, defective medical devices, contraceptives, medications and other consumer goods.
Jeremy Flachs has represented clients injured when splashed by a cleaning solution, burned by a defective coffee maker, and suffered the loss of personal property in a fire started by faulty electrical equipment Jeremy Flachs has also represented the estate of a family killed in an apartment fire which spread due to a faulty smoke detector.
The Basics of Product Liability Law in VA & DC
Any business that makes a dangerous product available for sale in the marketplace is liable for damages under product liability law. Responsibility does not necessarily end with the manufacturer. Liability actions can also be brought against anyone in the supply chain, including wholesalers, suppliers of component parts, or the retail store that sells the product to the consumer.
Virginia law recognizes three major causes of product liability. Each of the following is considered reasonable cause for action:
Defective Designs
Defective designs are flaws in the design of a product that makes it unduly dangerous. Design defects occur when the engineering or design process used by a company to design a product is faulty, resulting in a product that is unnecessarily dangerous. With a design defect, all of the items that come off a company's assembly line are uniformly defective in the same way.
Improper Manufacturing:
When a product is manufactured improperly, it was not manufactured as designed. There may be nothing wrong with the overall design of the product; but it may have become flawed during assembly. Reasons for improper manufacturing could be a mistake in the assembly process, or the manufacturer cutting corners in order to save money. Products that were manufactured improperly are normally much easier to prove because the manufacturer’s own designs can be used to show that the product is defective.
Marketing Defects:
Marketing defects take place when a product is improperly labeled, comes with unclear or incomplete instructions, and/or does not warn consumers about a products hidden danger. Pharmaceutical companies have faced product liability suits for not clearly warning consumers about possible dangerous side effects.
The Law Works for You in Products Liability
Virginia recognizes two types of liability actions - negligence and breach of warranty.
In contrast to Virginia, the District of Columbia recognizes not only breach of warranty and negligence, but also strict liability as a cause of action in a product case. Strict liability is based on establishing that a defective product was unreasonably dangerous when sold. The concept of defectiveness can include design, manufacturing and failure to warn, and the District of Columbia recognizes a “consumer expectations test”. This means the product must be dangerous beyond that which would be contemplated by the ordinary consumer who purchases it. Contributory negligence is not a defense to a strict liability claim, and unlike a warranty claim, disclaimers on the scope and content of the warranties do not affect a strict liability claim. However, product misuse is a defense, and is established when the use of the product could not reasonably be forseen by the manufacturer or seller.
In a breach of warranty action, a plaintiff can recover damages without actually showing that the manufacturer or seller of a product was negligent. The most common warranty claim in Virginia is based on the Uniform Commercial Code’s Implied Warranty of Merchantability. To win on this claim, you need to prove that the goods sold were unreasonably dangerous for their intended use, and that the unreasonably dangerous condition existed when the products left the control of the manufacturer or seller. A non-manufacturer who sold or rented a product and is in the business of regularly selling or renting that particular product warrants that the product is safe, fit and merchantable, and as such is equally responsible as the designer and manufacturer of the product. In other words, the merchant has just as much responsibility for the safety and well being of their customers as does the maker of the product. The conduct of the defendant in bringing the product to market is not relevant, just the objective safety of the product itself. This interpretation of products liability law ultimately benefits consumers who seek redress in court.
In order for a breach of warranty case to be successful, it must be proved that the product was and is dangerous, that it caused you or a loved one injury, and that the product was being used for its intended purposes and was not altered in any way. Not using the product as intended can be considered contributory negligence, but Virginia law has held that improper use does not excuse a manufacturer or seller in a breach of warranty claim.
Negligence may be established by proving the product was not safe for its reasonably forseeable uses. This failure can occur in the design or manufacture of the product, or inadequate warnings. This type of product claim requires proof that the wrongdoer failed to use ordinary care in manufacturing and designing the product so that is reasonably safe for its intended purposes. Likewise, the product must be accompanied by reasonable warnings which will alert the end user to avoid certain dangerous uses and to heed other safety instructions. Contributory negligence is a defense to a negligence claim.
Examples of Product Liability
Dangerous Drugs:
When pharmaceutical giants Merck and Pfizer both developed a so-called “super aspirin” that could ease arthritic pain without the common stomach ailments that were common in similar medications, the marketing blitz was enormous. Both companies spent billions of dollars in advertising, and arthritis sufferers everywhere were told in magazines, newspapers, radio and television to ask their doctors about Vioxx or Bextra.
But both Merck and Pfizer covered up in-house studies that indicated that heart patients who took these drugs were risking an increased chance of heart attacks and strokes. The marketing campaign continued unabated for years while Merck and Pfizer stonewalled the FDA and buried the damaging reports. While there isn’t anything wrong with marketing a decent product, sacrificing the safety of your customers in order to gain a bigger market share is unforgivable. Merck finally pulled Vioxx off the shelves in 2004, while Bextra, which also has been linked to severe and sometimes fatal skin diseases was only recently recalled in late 2005.
Contraceptives:
In 1971, the A.H. Robbins Company released this Inter-Uterine Device (IUD) to American women with an enormous marketing campaign. At the height of its popularity, close to 3 million women were using the device. Within a year, A.H. Robbins was receiving complaints of women suffering from pelvic inflammatory disease and tubal infertility, as well as cases of ectopic pregnancies and septic abortions. After twelve Dalkon Shield-using women died, the device was finally pulled off the market in 1974. The fault lay in the design of the device, which left women vulnerable to bacterial infections.
More recently, Johnson and Johnson released the Ortho-Evra Birth Control Patch in 2002. This patch introduced a much higher level of estrogen into the body than through conventional oral contraceptive methods, and this higher level of the hormone caused defensive clotting mechanisms in some of its users. These clots would travel throughout the body, which put the users at risks for heart attacks and strokes. Subsequently, the New York Post reported in September of 2004 that, according to internal FDA documents, 17 users of the patch had died of heart attacks since 2002.
Industrial Products:
For years, contractors and construction and textile manufacturers used cancer-causing asbestos in their products. Asbestos damage can have a latency period of up to thirty years, and hundreds of construction and mill workers died of asbestos-related illnesses before Congress outlawed its use in 1970.
Congress is now debating how to compensative victims of asbestos damage. A proposed $140 billion settlement fund recently failed to pass the Unites States Senate due to bi-partisan opposition. Senators in both parties complained the fund could result in tax payers bailing out the asbestos companies and others felt that the injured workers deserved their day in court in an effort to recover full compensation.
Steps to Take in the Event of Product Liability Injuries
If you are injured by a defective product, it is important to gather as much information as soon as possible. Record what happened, get the names and phone numbers of any witnesses, and anything else you feel should be recorded. Take photographs of the product and the injuries. If at all possible, save the product and each of its parts. Having as much information as possible is incredibly helpful to you and your attorney during the claims process.
The purchase of products should never be a gamble, and certainly shouldn’t put the lives of you and your loved ones at risk. If you have been involved in an incident with a product that should have been safe but wasn’t, call today for a free consultation.
Web Resources for Defective Products and Product Liability Claims:
- Product Recall
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- Criminal Record Expungement Assistance Services
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