Introduction
I have defended manufacturers and I am frequently
asked to bring lawsuits against them. Here is how I explain some
of the considerations involved in evaluating whether a manufacturer
should be sued.
If a defective product causes serious personal
injury or substantial property damage, the manufacturer and sellers
can be sued, even if the injured consumer cannot prove negligence.
Contemporary Product Liability Laws focus on whether the product is
defective rather than the conduct of the manufacturer. The victim
is called a plaintiff and can hold a manufacturer or seller strictly
liable if his attorney can prove that a defect in the product caused
injury. The concept is called "strict" product liability because Courts
decided a long time ago that manufacturers should be held to a stricter
standard. Judges decided it would be too hard for victims to prove
negligence (what manufacturer's did wrong) in technical cases involving
engineering design and manufacture. The key is whether the product
is safe for reasonably foreseeable use.
Shifting the burden of proof on design to the
manufacturer makes sense, since the manufacturer is in possession
of the expertise and technology to meet this test. Moreover, if a
manufacturer put as defective product in the stream of commerce which
causes injury, shouldn't they pay for the damage? Many Courts have
held that the manufacturers are the ones who are best able to pay
the damages if their product proves to be defective and causes injury.
In California, experienced product liability plaintiffs'
attorneys know that they have an advantage - they can shift the burden
of proof to a manufacturer and force the manufacturer to prove that
there was no alternative, safer way to design the product. This means
that if the plaintiff can show that there is something defective in
the design of the product that caused plaintiff's injuries, then it
becomes the manufacturer's responsibility to explain why they didn't
manufacture it with a safer design. Skillful Plaintiffs' product liability
attorneys do more than rely on this special procedural tool, they
go a step further and hire the necessary experts and show the jury
with demonstrative evidence exactly how the manufacturer could have
designed the product in a safer manner before they sold it.
Three Types of Product Liability
If an accident occurs and a product is suspected
of causing an injury, a determination must be made of whether the
product is defective and whether a product defect is one of the causes.
If there is more than one cause, a victim can collect from each party
who caused injury according to that party's percentage of fault.
1. Manufacturing Defects
If the manufacturer fails to make the product
correctly, a manufacturing defect may exist. Thus, if the finished
product is substandard by comparison to identical products in that
product line, then the manufacturer may be held liable for failing
to catch the defect before it left the assembly line and was sold
to the consumer. Typical manufacturing defects include the use of
inadequate materials, faulty assembly, etc.
2. Design Defects
A design defect is one in which the whole product
line, or every product of that particular model is dangerously deficient.
In California, a product can be considered defective in design if
it fails to perform as safely as an ordinary consumer would expect
when using the product in the normal fashion. Alternatively, there
are advantages in showing that there are risks in the design which
outweigh the benefits of the design, coupled with proof that there
was a feasible, safer design but the manufacturer failed to use it.
If there is more risk than usefulness, then the product should have
been designed differently or adequate warning should have been issued,
considering the hazards associated with the use of the product.
Can you think of some products which you suspect
are defective? Apply the risk/utility test I just discussed to the
product you have in mind. Bear in mind that a jury is provided with
technical evidence to assist them in performing this balancing test.
Balance the usefulness of the product against the danger posed to
a typical consumer by the design.
One of the most important types of evidence that
helps decide whether a product is defective in design is expert opinion
testimony. Experts can explain whether there is an alternative, safer
design that was mechanically feasible at the time the product was
built and sold, and thus, tip the scales of the risk/utility balancing
test in favor of the consumer.
3. Failure To Warn Product
Liability
Sometimes, a manufacturer is unable to design
a product to remove all risk. Similarly, the product may be complicated
to use, and needs adequate instructions in order to use it safely.
If the manufacture knows or should have known that at the time of
manufacture, that there were risks associated with the use of the
product, they have an obligation to notify the user of the product
in clear language about the risks. If manufacturers fail to provide
adequate warnings and instructions for use, they can be held strictly
liable on a theory of failure to warn.
Immediate Steps To Take
What can you do if you think you have been injured
by a defective product? Of course, you should hire an attorney to
evaluate your claim. Ideally, you should find an attorney who has
experience in successfully investigating, litigating and trying product
liability cases.
Before you even locate an attorney, it is important
that you preserve evidence of the product that you believe is defective.
People often throw away, or in some way "alter," the product which
has caused them injury. Thus, it becomes extremely difficult to prove
that a defect in the product caused injury. Save everything associated
with the defective product, including any instructions, warnings,
accessories, mailing labels that came with the product. Attempt to
photograph or videotape the condition of the product at the scene
or as soon after the injury as possible. Don't forget to save the
purchase receipt from the store where you bought it. The store may
also be liable. If, for some reason, such as a major vehicular accident,
you cannot personally save the product, or if you are injured by an
industrial machine and your employer has control over the product;
don't despair! Your attorney can demand that such key evidence is
preserved. Professional Accident Investigators can be employed who
know to preserve wreckage and debris. A skillful product liability
lawyer will hire Accident Reconstruction Experts and Metallurgists
who can recreate the condition of the product at the time of the accident
with amazing accuracy, notwithstanding the effects of collision, fire,
etc.
Victim's Contributory Fault
Be careful! It is important to retain an attorney
as quickly as possible after the accident to prepare your defense.
The manufacturers' first defense will be that you, the consumer or
operator, of a machine or vehicle, "misused" their product or were
otherwise negligent and that is the primary reason why you were injured.
Large companies have investigators and their insurers have adjusters
who are experienced at collecting evidence right after an accident
to prove that the victim is at fault. Don't let them have a head start.
With some products, like motor vehicles and airplanes, the manufacturer
can still be sued even if the consumer misused the product as long
as the misuse was reasonably foreseeable. Thus, manufacturers have
a duty to build in a certain degree of crashworthiness to protect
users against foreseeable accidents.
More Than One Party May
Be At Fault
This is another reason why product liability litigation
is not simple. There are some cases where the dispute involves more
than the victim against the manufacturer. Manufacturers blame other
parties, such as governmental entities, service providers, common
carriers, contractors, repairmen, etc. Each may have some degree of
liability for the injury. Of course, they will attempt to shift blame
to each other to avoid having to pay for all of the damages. This
is where your lawyer really earns his fee, trying to prove which entities
are at fault and to what degree.
When Should You File A
Product Liability Lawsuit?
Of course you must consult with an attorney to
make this decision on your case, but in my personal opinion, product
liability lawsuits should only be brought when there are serious physical
injuries or substantial property damage attributable to defective
products. The reason is that it costs a lot of money to prepare, litigate,
and try a product liability case. Professional and ethical attorneys
should not file product liability lawsuits unless a prior investigation
has uncovered evidence of defect. This is not just a matter of ethics,
common sense mandates that it would be foolhardy to sue a manufacturer
without proof just to try for a settlement. It's too expensive and
time consuming. Manufacturers usually have insurance to hire large
law firms to defend their products through trial and on appeal. Manufacturers
must protect their business which is founded on the reputation of
their product. They don't settle easily.
If the injuries are minor, or the property damage
experienced is not substantial, you may be better off filing a claim
in Small Claims Court, submitting a warranty claim to the supplier
of the product, or filing an insurance claim. Have a lawyer evaluate
your case.
Remember, that there is a statute of limitations
for personal injuries suffered as a result of a defective product.
In California, and many other states, you have one year from the date
you knew or should have known that you have may have longer to sue.
Punitive Damages
California Courts have created strict product
liability law which places the focus on the quality of the product
rather than the conduct of the manufacturer. This was done to make
it easier for the consumer who was a victim to prove their case. Sometimes,
the conduct of the manufacturers is worse than their product. In such
cases, lawyers will attempt to prove that the manufacturer made misrepresentations
or engaged in other malicious conduct in order to claim punitive damages.
The California standards for proving punitive damages are very tough.
Contrary to popular opinion, punitive damages are rarely awarded and
approved on appeal. However, some of the most notable punitive damage
awards have been given in product liability cases, usually where manufacturers
know their product is dangerous, but continue to make it anyway.
Conclusion
The description of Product Liability Law provided
in this article is simplified to cover general consumer products.
Product Liability Litigation gets particularly complicated when we
start investigating product liability for special vehicles, airplanes,
boats, medical devices, prescription drugs, tobacco, pesticides and
other such products. Special defenses and federal immunities exist
in many of these areas.
Product liability can be distinguished from other
areas of law because of the scientific and engineering complexity
involved. Although an attorney does not have to be an engineer to
work in the product liability field, he or she must have a grasp for
technical design and detail. It is also important that a product liability
lawyer be adept at using computer animation and recreation technology
to graphically demonstrate the failings of a product and how a defect
caused or contributed to an accident. Don't be deceived by lawyers'
claims of brilliance, eloquence, or privileged education. It is hard
work and experience that usually prevails in lawsuits of this kind.
