Product liability claims are part of the field of tort law. A product liability claim is one wherein a person contends that a particular product is defective in some way and that defect has produced injury to that plaintiff. 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.
We represent Fairfax, VA area individuals who have been injured as a result of an unsafe product and 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:
In looking at the product it is critical to determine what is its intended use and what is its actual use. Product defect cases fall into three categories: defective design,defective manufacturing and failure to warn.The basic principles of safe product design are:
In most cases, if you are injured by a defective product, you will be able to sue for your product liability injuries.
You don’t have to be the actual buyer of the defective product to sue for damages. If you were injured by a defective product, you may still recover damages. For example, assume your mother bought you a new shampoo to use. After one application of the shampoo, you experience scalp irritation and hair loss. Even though your mother was the actual purchaser of the shampoo, you suffered injuries caused by the shampoo. In this scenario, you may sue the company that manufactured the shampoo.
You don’t have to be using the defective product at the time of injury to sue for damages. The only requirement you have to meet is that you suffered injury that was caused by the defective product. For example, your neighbor is mowing his lawn. As the neighbor turns the lawnmower to cut a patch of grass, one of the 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 for injuries caused by the defective product. The chain of distribution is the path that the product takes from manufacturing to being sold. This path includes a host of different entities from distributors to individual makers of parts and components.
Manufacturers are at the start of the chain of distribution. Manufacturers include the makers of the defective component of the product and the makers of the defective product. Manufacturers are liable because they used a defective part in making the defective product. For example, you buy a Ford Taurus. One day while driving the Taurus, the stock tire on the car explodes, causing you to drive into a tree and suffer neck injuries. You can sue both Ford, who manufactured the car, and the company that manufactured the tire.
Retailers may be liable for your product liability injuries even though they did not manufacture the defective product. The fact that the retailer sold you the defective put it within the chain of distribution and is thus subject to product liability.
Wholesalers and Distributors
Wholesalers and distributors make up the middle part of the chain of distribution. Because they are the driving force in moving the defective product from manufacturer to retailer, they may be liable for injuries caused by a defective product.
Product liability litigation can be complicated. There are a number of excellent sources (to activate the link highlight and right click)for research dealing with these types of cases:
In the course of product liability litigation there are a number of recurring issues:
In most product liability cases the defendant will attempt to assert that there is no evidence of prior accidents. That defense may be subject to a lack of foundation objection. To rely upon that defense the defendant must establish that if there had been prior accidents the defendant would have known about them because there was in place a mechanism to check on the safety of the product and to determine whether or not there had in fact been accidents involving the product. The mere fact that the defendant has shown that there is no evidence of any prior accidents may be a result of there being no record keeping system in place to record complaints or to record actual accidents that are reported. That foundational evidence must be established before evidence of a lack of prior accidents should be admissible. In general, in order to lay the proper foundation for a defense of no prior accidents the defendant must show:
Another recurring issue in product liability litigation is the need for suing a foreign manufacturer who may have physically put the product together or had some substantial role in putting it together. The ability to sue such a manufacturer is dependent upon whether or not that potential defendant has purposefully created minimum contacts with the jurisdiction where the suit is pending so that it would reasonably anticipate being brought into court in that jurisdiction. If that threshold requirement cannot be met, you may not be able to bring the defendant before the Court. More importantly, however, if the distributor and/or assembler of the product is within the jurisdiction of your court you may not need that foreign manufacturer.
In litigation involving products made for the federal government it is not unusual for the manufacturer to assert the state secret privilege. That privilege is a common law evidentiary rule that protects information from discovery when disclosure would be contrary to the national interest. This rule, however, in some instances becomes more than simply an evidentiary privilege as it may be used by the defendant if the privilege itself would deprive the defendant of a valid defense, i.e. there is evidence that the defendant cannot present because of the state secret privilege.
A related defense is the government contractor defense which turns on whether the government approved reasonably precise specifications for the product, the product conformed to those specifications and the manufacturer warned the government about dangers in the use of the product that were known to the manufacturer but not to the government.
The standards that apply to a product may be governmental (state or federal codes) or non-governmental. Non-governmental standards are published by the American National Standards Institute (ANSI), Underwriters Laboratory (UL) and the American Society of Safety Engineers.
The drywall fiasco that has occurred over the last many years is an example. Drywall is created from gypsum, a soft sulfate mineral that is converted into powder and then used to make the drywall boards. Gypsum is mined or produced synthetically and should be inert and nonreactive. However drywall made in China from a gypsum mine contains sulfur. Sulfur emits toxic substances. Where this type of drywall is installed, the homes become infected. These gases corrode copper, silver and other metallic items. They can corrode the electrical wiring, air conditioning coils, plumbing fixtures and electronic appliances. Electrical wire corrosion then can create fire hazards because of the potential for arcing.
The first clue of these gypsum boards being problematic was the rotten egg odor they emitted. In hot and humid areas, the drywall is caused to emit even more gas. In those homes where this product was installed, there was a rash of broken air conditioners resulting from corroded and blackened air conditioning coils and ground wires in electrical sockets.
If suit against the foreign manufacturer is brought in the context of a products liability claim, then the defendants down the distribution chain will seek to apportion fault on the absent manufacturer. It is important to be able to educate the jury or trier of fact as to what a reasonable supplier, distributor, installer or contractor should do to prevent defective products from entering the home. In particular it is necessary to look at quality control measures governing the purchase, testing and inspecting of the product and what those inspection protocols were.
In the case of drywall, a commonsense test could be applied i.e., it smelled. No distributor could miss that.
Under the policy statements issued by the Consumer Product Safety Commission, importers are subject to the same responsibility as domestic manufacturers.
Likewise, under the National Traffic and Motor Vehicle Safety Act, importers of motor vehicles for resale are deemed to be the manufacturer of the imported product.
The federal government, to some extent, has taken the lead in terms of trying to establish standards for foreign manufacturers. The inter-agency working group on import safety has created a frame work addressing efforts to identify recognized practices with respect to insuring the importation of safe foreign products. For instance, this agency recommends that these foreign manufacturers should be subject to detailed contracts that lay out the process by which the product is going to be manufactured, should call for site visits by the U. S. manufacturer and some system of review of that manufacturer in the foreign land. These regulations also require the importer to determine information about the product design specifications, manufacturer process and quality control system. All of this is designed to make sure that the U. S. manufacturer or U. S. importer is exercising some degree of oversight over the foreign manufacturer.
To the extent that a U. S. importer attempts to rely upon blind reliance on the foreign manufacturer, that reliance is misplaced. It is incumbent upon the U. S. importer to exercise some degree of control over the foreign manufacturer and the failure to do so may constitute negligence.
Product misrepresentation may be an issue in any product liability case. If the product is a child’s toy, then how it is portrayed on TV or perhaps even in animated commercials may be significant. If the toy is used in a violent fashion in a manufacturer’s advertising, then it is reasonable to expect that a child in seeing that may think that the toy can likewise be used in that fashion.
The representation that baby oil is pure and gentle may be a basis for liability if the danger associated with inhalation of the baby oil is not set forth. The mere appearance of the product itself may be a form of representation. A piece of construction equipment that on its face appears to be well grounded and stable may still tip over in some circumstances. If that danger is not disclosed, then the mere appearance of the equipment may be a basis for liability.
Product misuse is a defense asserted in many product liability claims as a bar to the claim. The term “product misuse” is a bit of a misnomer. The manufacturer will classify as misuse as any unintended use. Courts however apply a broader definition typically to the term of product misuse to constitute a use that is not reasonably foreseeable. As such, the use may be unintended by the manufacturer but it may still be reasonably foreseeable by the manufacturer. In that event, it should not constitute misuse. The placement of a towel on a sauna heater may not be an intended use of the sauna heater but it is a foreseeable use and, as such, should not constitute misuse. If this use was foreseeable to the manufacturer, then the manufacturer has a duty to reduce or avoid the risk or, in the alternative, to warn of the dangers associated with the product.
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 party bringing the claim has the burden of showing that the use of the product was indeed foreseeable by the manufacturer.
Lithium-ion batteries are almost universal. You find them in cell phones, laptop computers and a host of consumer devices. The primary reason that Smart Phones are as thin as they are is because of these types of batteries. There are believed to be more than 4 billion such batteries that were made simply during the year 2012. It has been discovered however, that they can pose a danger in that they may explode or catch on fire spontaneously. They are supposed to shut down rather than causing a fire. The problem is that the separator that separates the positive cathode from the negative anode sometimes can be broken, which can then allow contact between the negative and positive layers which generates a great deal of heat causing the electrolyte solution within the battery to expand rapidly and then either ignite or explode. The battery is like most batteries in that it has a positive cathode and a negative anode and the electricity is generated by the electrons or, more precisely, the negative ions passing through the separator to the positive side. As long as this is done in the anticipated controlled fashion, then all that is generated is electricity.
It is believed that batteries carried in cargo planes were the potential causes of two fatal crashes in recent years according to the Airline Pilot Association International.
Model airplane hobbyists, also users of these types of batteries to allow prolonged flight for their model airplanes, have long known that these types of batteries explode frequently upon impact.
On December 15, 2010 the Consumer Product Safety Commission voted unanimously to ban the manufacture, sale and resale of cribs which have a side rail that moves up and down. The product liability hazard was simply too great. The purpose of such a side rail is to allow parents to more easily lift the child from the crib. The problem with the side rail is typically an assembly problem which can lead to the drop side rail partially detaching from the crib creating a V-like gap between the mattress and the side rail where the baby can get caught and potentially suffocate.
This new standard published by the Consumer Product Safety Commission will take effect in June of 2011 and will prohibit hotels and child care centers from using drop-side cribs although these facilities would have two years to purchase new cribs.The new regulation however puts facilities on notice of the hazard and as such they would be well advised to discontinue use of such cribs immediately rather than waiting two years.
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 but not for the head sometimes resulting in the child in effect hanging to death. This product liability issue is being addressed by some manufacturers.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 typically is that children of that age should not be put on the top bed of a bunk bed.
Certain standards over the years have been published by a number of different private and public organizations such as the American Furniture Manufacturers Association (AFMA), the Consumer Product Safety Commission and the American Society for Testing and Materials. All of these are important sources to check in terms of establishing standards in regards to bunk beds.
In handling cases of this nature there are several things that are critical:
Stove range defects are a hidden hazard in many homes and apartments thereby giving rise to product liability claims. A serious hazard that many consumers simply 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, then that typically results in burns from the forward tipping range. Many ranges are inherently unstable when their oven door is open. Once that door is open then it is low enough for a child to climb on. That forward tipping can be initiated by a weight of 30 pounds or less.
Underwriters Laboratories has published certain standards to prevent tipping. This has required manufacturers to develop certain anti-tipping brackets to secure ranges to either the floor or the wall. There are a number of limitations on these brackets but if properly installed they can reduce the likelihood of range tipping.
In a suit involving range tipping the obvious defendants are the product manufacturer, the retailer, the installer and, if in an appartment, then the landlord. There may be some difficulty identifying the actual manufacturer although this can be determined by getting the identification number on the UL label which will then permit identification of the entity that submitted the product to UL for testing.
Claims against landlords and management companies may be based on the theory of a failure to insure proper installation or retrofitting of these stoves. The Institute of Real Estate Management has provided some standards in regards to these products.
It may be necessary to retain a competent engineer with knowledge of safety engineering to act as an expert witness as to how these stoves and ranges should have been installed.
The concept of post-sale duty to warn of defects is something that also needs to be considered. The National Safety Council has published a protocol recommending when a company should issue post-sale notices. Likewise, the Consumer Product Safety Commission has a Recall Handbook that was published that may be helpful in understanding when post-sale notices should be given.
Refrigerators currently sold in the United States either have freon in them or have hydrofluorocarbon in them as a refrigerant. Freon is an ozone depleting substance when it enters the atmosphere. Hydrofluorocarbon, on the other hand, presents problems as far as global warming in that it remains in the atmosphere for decades absorbing radiation that would otherwise be released into space.Hydrocarbon refrigerators, on the other hand, are cooled by carbon and hydrogen and these natural refrigerants do not degrade the ozone and are easily broken down by the sun thereby posing no global warming hazard.There are however some product liability issues relating to these type of refrigerators that product liability lawyers should be sensitive to.
The hydrocarbons in these new refrigerators pose some potential hazard in that hydrocarbons are flammable and there have been some isolated incidents of exploding hydrocarbon refrigerators.
General Electric plans to sell their first hydrocarbon household refrigerators in the U. S. in June of 2011. The Environmental Protection Agency has not yet given their approval to these refrigerators but that is anticipated. In 1994 the Environmental Protection Agency had ruled that hydrocarbon refrigerants were too risky to be used in household refrigerators. It appears that will change. Hydrocarbons are already found in many household appliances and substances such as gas stoves, furnaces, bathroom cleaners and air fresheners.
In December of 2010 the Environmental Protection Agency approved a request from the ethanol industry to allow ethanol content in a gallon of gasoline to climb from 10 to 15 percent. The new fuel will be called E15 as opposed to the existing fuel which is called E10. The idea is to allow ethanol from grain to hopefully decrease America’s dependence on foreign oil.There are some potential product liability consequences from the decision.
Critics of the increase of ethanol in gasoline however point out several things:
Propane heaters can cause carbon monoxide injury as reported by injury attorney Brien Roche. These heaters are intended for outdoors usage by campers but can be a source of serious carbon monoxide injury. Many of these heaters contain no warnings that if the heaters are used in an enclosed area they can cause injury. The whole advertising concept that such a propane heater is an outdoor instrument is a bit of an oxymoron. These heaters are not commonly used outdoors. Propane heaters are commonly used inside a tent, recreational vehicle, or other enclosed space to warm the area. Many propane heaters do have warnings stating that there is a need for adequate ventilation. That again is inconsistent with usage in a tent, RV, or other enclosed space.
There are a number of different potential theories of liability relating to propane heater injuries:
Machine entrapment cases are considerably less common today than they were years ago principally because of guarding techniques that have been employed by manufacturers and the success of product liability lawyers in promoting safety. The most common entrapment accidents involve legs or arms that are caught between two or more moving or compressing machine parts.The analysis to be employed in looking at a product liability claim is first whether or not the alleged defect could have been designed out, if not could it be guarded against and finally if neither of those are practical then a warning must be provided. From a cost point of view designing the hazard out is typically the most expensive. Guarding is frequently almost as expensive and the least expensive is simply providing a warning which in and of itself may be inadequate.
In looking at machine entrapment cases frequently the operators that are involved are reliable, fastidious workers but they make critical errors consisting of:
There are a number of different standards applicable to entrapment cases published by ANSI and also the Product Standards Index.
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 jurisdiction and therefore basically operating with their blinders on as to other potential violations.
The source of the explosion in this case was ammonium nitrate, which is the chemical used to build the bomb that blew up the federal building in Oklahoma City in 1995.
What is particularly lacking in the regulatory scheme are any guidelines as to how close a facility like this can be to residential neighborhoods. There is no federal agency that determines how close such a facility can be to population centers. That is left up to to local zoning authorities. In the state of Texas zoning is typically de minimis and as such it is not unheard of to have a plant such as this in close proximity to schools and houses.
The damage from this particular blast destroyed an apartment complex, a nursing home and houses in a 4-block area.
The particular fertilizer company in this case not only stored but also distributed and blended fertilizers including chemicals such as anhydrous ammonia and also ammonium nitrate. This is used by farmers throughout the central Texas area.
This particular plant had been previously cited by the US EPA for not having an up-to-date Risk Management Plan. That particular violation was resolved and the company submitted a new plan in 2011. That plan however expressly stated that the company was not storing or handling any flammable substances. In addition the plan did not list fire or explosion as a potential danger. It is the ammonium nitrate, which is a solid granular fertilizer, stored at the facility that was the source of the explosion.
Teenagers and young adults have recently become the focus of marketing for energy drinks. The two most famous such drinks are Red Bull and Monster.
The scientific data shows that these flavored drinks contain high amounts of caffeine and other stimulants that stimulate the central nervous system, cardiovascular system and 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 being dietary supplements are not governed by the FDA nor are they regulated by any federal authority. As such these drinks can be purchased by children or anybody else who simply has the money to pay for them.
Companies that manufacture these drinks have engaged in a very systematic marketing approach advertising these products to promote concerts and other things that young people are particularly interested in.
Since these drinks are not regulated by the federal government there is no obligation on the part of the manufacturer to disclose the true ingredients.
Research up to this point has indicated there are several dangers associated with these items:
The warning that is on the Monster product states simply that the product should be consumed responsibly, consumers should limit themselves to 2 cans per day and that it is not recommended for children, pregnant women or people that are sensitive to caffeine. Although that warning may be better than nothing, it really tells the user very little about the potential risk.
In looking at a case involving this product, it is important of course to be able to identify the actual manufacturer and it is also necessary to be able to expressly link causation to that manufacturer. Typically this can be done through either the autopsy report if there is a resulting death or bloodwork that was done after the adverse event.
If the potential plaintiff has consumed more than one product, that may be a significant problem as far as proving causation. Likewise if the user has consumed the product with alcohol or other dietary supplements, is a smoker or is advanced in age, those may all be factors to consider closely in terms of making a decision whether or not a case is viable. The potential defendant in a case such as this is not only the manufacturer but may in some circumstances be the retailer.
Antioxidants are either vitamins, minerals or enzymes. Enzymes are protein molecules that facilitate chemical reactions in order to allow your cells to properly function.
What antioxidants do is to essentially 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 during the process of converting food into energy. In addition such things as smoking, drinking alcohol, being exposed to sunlight and also to certain environmental contaminants such as pesticides can trigger the production of more of these fragments. Antioxidants, especially those in fruits, vegetables and whole grains counteract this process. There is fairly well-accepted data that people who consume a greater amount of antioxidant-rich foods have a lower risk of certain disease processes.
The idea that some fruits are so-to-speak “super antioxidants” is not true.
In addition the concept that more is better is not necessarily true in regards to antioxidants. Too much can be problematic. In particular, capsules that are labeled as “megadoses” of antioxidants can actually be harmful in that they may increase the production of these fragments, especially in people who drink alcohol or smoke.
Many of these products that are labeled as being rich in antioxidants also contain high levels of sugar and fat. In general you should avoid processed food and if you are looking to increase your vitamin E content then eat an ounce of dry roasted almonds.
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 testify about the design, manufacture, distribution and intended use of the product. A fruitful line of questioning of such a witness may consist of the following:
These can all be productive questions that 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.