Product Liability

Fairfax Injury Lawyer Brien Roche Is A Product Liability Lawyer

Brien Roche

Product liability claims are part of the field of tort law. The plaintiff contends that a product is defective and that defect caused injury. They involve a mix of personal injury law and contract law. In addition they require the use of expert witnesses to address complex issues.

Product Liability-Defective Products

We represent Fairfax, VA area individuals who have been injured as a result of unsafe products. We assist our injured clients in bringing their claims and being fairly compensated for their injuries. Please contact us if you or a family member has been injured by an unsafe product such as:

  • 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 place. Gather all of the documents relating to the product.
  • Never return the product to the maker or to the insurance company for testing.
  • Also decide if there is a need to notify the maker/distributor of the defect.
  • 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 injury 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 party 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 start 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 part. 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.

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.

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:

  • 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.
  • 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.

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.

Prior Accident

In most product liability cases the defendant will claim no prior similar accidents.  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.

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.

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 Must be Addressed

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 try 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 free consult.

Product Liability In Personal Use Items

Batteries

Lithium-ion batteries are all over.  They are in cell phones, laptops, and a host of consumer devices.  Smart Phones are as thin as they are because of these batteries.  There are billions of these batteries in use. They pose a danger in that they may explode or catch fire.  They are supposed to shut down rather than cause a fire.  The problem is that the part that separates the positive cathode from the negative anode may break. This allows contact between these layers. This causes heat and causes the electrolyte solution to expand and ignite or explode.  Electricity in a battery is caused by the the ions passing to the positive side.  As long as this is done in the controlled fashion, then electricity is the only result.

It is believed that batteries carried in cargo planes were the causes of two fatal crashes in recent years according to the Airline Pilot Association International.

Model airplane hobbyists, also use these batteries to allow prolonged flight for their planes. Most such owners have long known that these batteries explode upon impact.

Drop Side Cribs

On December 15, 2010 the CPSC voted to ban the making, sale and resale of cribs which have a side rail that moves up and down.  The purpose of a side rail is to allow parents to more easily lift the child.  The problem is the drop side rail partially detaches from the crib creating a V-like gap between the mattress and the side rail. The baby can get caught there and smother. Hotels and child care centers cannot use these cribs. Call, or contact us for a free consult.

Bunk Bed Entrapment

Bunk bed entrapment of a small child can result in serious injury or death.  The space between the bed frame and the guardrail on some bunk beds is large enough for a child’s body to slip through. The head does not slip through resulting in the child hanging to death.  It is well known that children over the age of one begin trying to climb out of their beds.  With their new found mobility and lack of judgment they are excellent candidates for entrapment in bunk beds.  The standard across the industry is that children of that age should not be put on the top bed of a bunk bed.

Standards have been published by the American Furniture Manufacturers Association (AFMA), the CPSC and the American Society for Testing and Materials.  All of these are sources to check as to standards in regards to bunk beds.

In handling cases of this nature there are several things that need to be done:

  • Get hold of the bed.
  • Measure the bed and photograph and videotape the process of taking such measurements.
  • Check any labeling on the bed to identify the maker and the date.
  • Also locate the retailer since the maker may allege the retailer modified the bed.
  • In addition get a copy of any 911 calls along with governmental reports.

Stove Range Defects

Stove range defects are a hidden hazard in many homes.  The hazard that many people are not aware of is that of range tipping.  If a range tips as a result of a child putting weight on an open door that results in burns from the forward tipping range.  Once that door is open then it is low enough for a child to climb on.  As a result that forward tipping can be initiated by a weight of 30 pounds or less.

UL has published standards to prevent tipping.  This has required makers to develop anti-tipping brackets. These secure ranges to either the floor or the wall. However there are a number of limits on these brackets. Certainly if properly installed they can reduce the chance of range tipping.

In a suit involving range tipping the defendants are the maker, the retailer, the installer and, if in an apartment, the landlord.  The maker can be found by getting the number on the UL label. Claims against landlords may be based on a failure to secure the stove.  The Institute of Real Estate Management has provided some standards in regards to these products.

An engineer with knowledge of safety issues may be needed as an expert witness as to how the stove should have been installed.

The concept of post-sale duty to warn of defects is something that also needs to be looked at.  The National Safety Council has published a protocol as to when post-sale notices are needed.  Likewise, the CPSC has a Recall Handbook that addresses when post-sale notices should be given. Call, or contact us for a free consult.

Hydrocarbon Refrigerators

Hydrocarbons in refrigerators pose a hazard in that they are flammable. Also there have been some incidents of exploding hydrocarbon refrigerators.

General Electric began selling their first hydrocarbon household refrigerators in the U. S. in June of 2011.  In 1994 the EPA ruled that hydrocarbon refrigerants were too risky to be used in household refrigerators.  Hydrocarbons are already found in many household appliances and substances such as gas stoves, furnaces, bathroom cleaners and air fresheners.

Increased Ethanol in Gasoline

In December of 2010 the EPA approved a request from the ethanol industry to allow ethanol content in gasoline to climb from 10 to 15 percent.  The idea is to allow ethanol from grain to hopefully decrease America’s dependence on foreign oil. However there are some potential product liability effects.

Critics of the increase point out several things:

  • The increased ethanol will shorten engine life. Also it may make certain types of equipment prone to fuel leaks and fire hazards.  Ethanol tends to make an engine run hotter. In addition it tends to eat away at rubber parts.   Smaller engines such as lawnmowers, chainsaws and leaf blowers may be most prone to problems.
  • Also ethanol tends to absorb water.  This could make the fuel unstable.
  • Gasoline tanks, pipes and pumps at gasoline stations are required to be certified by UL.  This has not been done for the new blend.
  • Finally the use of this new blend in older engines may void the maker’s warranty.

Propane Heaters Cause Carbon Monoxide Injury

Propane heaters can cause carbon monoxide injury. These heaters are intended for outdoor usage by campers. Many of these heaters contain no warnings that if the heaters are used in an enclosed area they can cause injury.  The concept that such a heater is an outdoor device is a bit of an oxymoron.  These heaters are not commonly used outdoors.  Propane heaters are commonly used inside a tent, an RV or other enclosed space to warm the area.  Warnings stating that there is a need for ventilation  are not consistent with usage in a tent, RV, or other enclosed space.

There are a number of theories of liability relating to propane heater injuries:

  • In a restricted space the heater sucks up oxygen and produces carbon monoxide.  There are heaters that warn the user audibly if the oxygen is being depleted. In addition, there are “flame out” features that will actually cause the heater to turn off if the carbon monoxide level gets too high.
  • The failure to warn may apply.  The warning should be clear that the consequence can be death.

Product Liability In The Workplace

Machine Entrapment

Machine entrapment cases are less common today than they were years ago. Guarding techniques have been employed. The most common entrapment accidents involve legs or arms caught between two or more moving machine parts. Therefore the question in these cases is whether the defect could have been designed out, if not could it be guarded against and if not was a warning provided.  From a cost point of view designing the hazard out is the most costly.  Guarding is almost as costly. The least expensive is providing a warning.

In looking at machine entrapment cases workers may make errors in:

  • Misjudging reaction times. They assume they may be able to see a hazard and react to it in time to avoid it.
  • Misjudging visual perception. They believe that they will always be able to see the hazard.  However rotating objects such as blades appear to be standing still even though they are moving at high speed.
  • In addition momentary distraction may disrupt the rhythm of the worker.

There are a number of different standards applicable to entrapment cases published by ANSI and also the Product Standards Index. Call, or contact us for a free consult.

Fertilizer Explosions

On April 17, 2013 a fertilizer plant in Texas exploded.  The fertilizer plant had no sprinklers.  It had no fire walls.  It had no water deluge system.  Safety inspections at the plant were, at best, sporadic.

It so happens that small fertilizer plants across the nation are overseen by a number of governmental agencies. Each with limited power. The source of the explosion in this case was ammonium nitrate. This is the chemical used to build the bomb that blew up the federal building in Oklahoma City in 1995.

What is missing are any guidelines as to how close a plant like this can be to homes. There is no U.S. agency that judges how close such a plant can be to homes.  That is left up to the local zoning office.  In the state of Texas zoning is de minimis. As a result it is not unheard of to have a plant close to schools and houses.

This blast destroyed an apartment complex, a nursing home and houses in a 4-block area. The company in this case not only stored but also distributed and blended fertilizers. The plant had been cited by EPA for not having an up-to-date Risk Management Plan.  That breach was resolved. The company submitted a new plan in 2011.  However that plan stated the company was not  storing or handling any flammable substances.  In addition the plan did not list fire or explosion as a danger. 

Product Liability in Foods

Energy Drinks

Teenagers and young adults have become the focus of marketing for energy drinks.  The two most famous such drinks are Red Bull and Monster.

These flavored drinks contain high amounts of caffeine. In addition they have other stimulants that stimulate the central nervous system and the heart. They can cause caffeine shock, heart attacks, irregular heartbeat, strokes and other problems.

The industry in 2011 grossed $8.9 billion.  That is up from the previous year. These types of drinks are dietary supplements. They are not governed by the U.S. As a result these drinks can be purchased by children or anybody else who simply has the money to pay for them.

Companies that make these drinks promote concerts and other things that young people are interested in. Since they are not controlled by the U.S. there is no duty on the part of the maker to disclose the true ingredients.
Call, or contact us for a free consult.
There are several dangers associated with these products:

  • Increased blood pressure and heart rate which can affect even healthy young people. These are special dangers to those with high blood pressure or heart problems.
  • These drinks interact dangerously with any blood pressure medicine.
  • People who are not used to caffeine intake may have adverse reactions.
  • Pregnant women are at risk for a host of problems including miscarriage, stillbirths and poor gestational development.

The warning that is on the Monster product states that it should be consumed responsibly. In addition it states the user should limit themselves to 2 cans per day. Also the warning says it is not advised for children, pregnant women or people that are sensitive to caffeine.  This tells the user very little about the risk.

In looking at a case involving this product the potential defendants are the maker and the retailer.

Overuse of Antioxidants

Antioxidants are either vitamins, minerals or enzymes. Enzymes are protein molecules that assist chemical reactions in order to allow your cells to properly function. What antioxidants do is to block the action of free, unstable chemical fragments that can cause harm. These fragments can cause cells to grow and reproduce abnormally. Your body produces these fragments during exercise and also while converting food into energy. In addition such things as smoking, drinking alcohol, being exposed to sunlight and to certain contaminants can produce more of these fragments. Antioxidants, especially those in fruits, vegetables and whole grains counteract this process. People who consume a greater amount of antioxidant-rich foods have a lower risk of certain diseases.
However the idea that more is better is not necessarily true with antioxidants. Too much can be a problem.

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.

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 liability see the pages on Wikipedia and the pages on this site dealing with product defects and medical device injuries.

Contact Us For A Free Consultation

Product Liability

Contact Us For A Free Consultation

Contact Us For A Free Consultation