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Areas of Practice
Products
Liability
Overview
Product liability has been referred to as
strict liability. Strict liability imposes liability against a defendant for
providing a product that contained a manufacturing defect, or that was
defectively designed or did not include sufficient instructions or warnings of
potential safety hazards. Under
Negligence Law, the defendant is liable only if he or she was
negligent.
The attorneys at Cheong, Denove, Rowell
& Bennett have been helping clients injured by defective products
for almost 30 years.
What is Products
Liability?
When someone is injured by a product, the
manufacturer and others who distribute the product may be responsible if the
product was defective. Thus, if a tow bar breaks because of imperfections in
the steel used and the result is an injury to someone in a car following, the
tow bar maker and seller must compensate those injured by the product’s
failure.
Additionally, a product may be defective in
design.
When, because of the design, a product causes injury,
the manufacturer and others who distribute the product
may be responsible if (1) the product
failed to perform
as safely as a reasonable consumer would expect, or
(2) the
benefits of the design chosen by the manufacturer
are outweighed by the risks inherent in the design.
| For example, Ford determined to locate the gas tank
of the Pinto behind the rear axle and adjacent to bolts.
When it did crash
testing, Ford learned that when the
Pinto was struck from the rear, the gas
tank would be
crushed and punctured causing fires. Instead of relocating
the
gas tank, as Ford’s own engineers requested, which would have cost
about
$1.50 per car, Ford went ahead and sold the Pinto with this dangerous design.
Many people unnecessarily died in car fires and many others were horribly
injured. In Grimshaw v. Ford Motor Co., a case which one of our firm’s
partners worked on, Ford was found liable for burn injuries. |
|
John Rowell inspecting brake line failure area |
A product may also be defective for failure to
warn that a foreseeable use of the product can cause injury. For example, the
antiseptic Neonyacin was distributed without warnings about use other than on
a patient’s skin. The manufacturer, Upjohn, had conducted studies
which showed that using Neonyacin as an antiseptic to irrigate wounds could
cause destruction of the nerves in a patient’s ear and complete loss of
hearing. Upjohn learned of cases of hearing loss, but ignored the danger and
lied to the government, claiming there were little or no side effects from the
drug. One of the firm partners represented an air traffic controller who lost
his hearing and job as a result of the use of Neonyacin to irrigate a wound.
Click to Enlarge |
|
Other
recent examples of defective products include SUVs such as the Explorer, which are prone to rollover, tires, such as
Firestone Steeltex AT, which lose their tread and fail unexpectedly during
operation because of their design; drugs such as Vioxx, which cause an
increased risk of strokes and heart attacks; and defective and/or aggressive
air bags, which put out a passenger’s eye or break necks. When products cause injury, such as in an accident caused by a defective tire, this specialized area of the law applies. This
type of claim requires a lawyer who is
comfortable cross-examining
mechanics,
engineers, pilots, biomechanical experts, and medical doctors. Success in this
area is dependent on the lawyer’s knowledge of the special area of
engineering involved and a knowledge of other similar claims across the
country. |
| Attorneys at Cheong, Denove,
Rowell & Bennett have successfully
prosecuted products liability cases for
almost 30 years. With respect to automobile-related injuries, they have
represented clients in claims of defective tire design and manufacture,
defective gas
tank placement and design, defectively weak
roofs and doors,
defective seatbacks which collapse in rear-end collisions, defective wheel
design and manufacture, defective design and manufacture of air
bag systems
and seatbelts, and defective design and manufacture
of ignition modules and brakes. |
|
Examining a defective
Firestone tire
|
The attorneys
have prosecuted claims of defective airplane design and manufacture in connection
with the Paris, Bali, San Diego, Chicago and
Tenerife air crash disasters. They have represented
clients in claims of defective prosthetic devices, including
prosthetic hips, knees and heart valves. They have prosecuted claims of defective design of surgical equipment
and cauterization devices. They have represented clients in claims of defective drugs and lack of adequate warnings, including Neonyacin, Vioxx,
Phen-Fen, and Baycol.
John D. Rowell, of Cheong,
Denove, Rowell & Bennett has served on state and national plaintiffs’
committees in a number of products liability cases.
The Defect Must Be a Cause of the Injury.
Some attorneys mistakenly believe
that when a product has been recalled because of a product defect, liability
is automatically established. This is incorrect. To establish liability the
plaintiff needs to prove not only a product defect, but the
defect was a substantial factor in causing the injury. The jury
is instructed that "a substantial factor in causing harm is a
factor that a reasonable person would consider to have
contributed to the harm. It must be more than a remote or
trivial factor. It does not have to be the only cause of the
harm. Conduct is not a substantial factor in causing harm if the
same harm would have occurred without that conduct." CACI 430
(CACI are the approved
jury instructions from the Judicial Council of California. Jury
instructions are read to the jury by the judge and establish the law the jury must follow in deciding the
case. A partner of
Cheong, Denove, Rowell & Bennett has been formally recognized as one of the attorneys who assisted the
task force in the preparation of these jury instructions.)
Often the manufacturer will often
argue that the product
was not the cause of the plaintiffs
injuries. Crash tests
and computer animation are often useful in demonstrating that the defect was a cause of injury. An
example of using a crash test with computer animation
appear on the boxes
to the right. Click on the images to see the
Mechanism of Injury
Animation.
Who Can Be Liable Under Products Liability?
Obviously, the entity that manufactures the
defective product can be held liable. Once the product leaves the manufacturing plant, other entities may also be held liable. These entities
include the distributor, and even the retailer who sells the product to the
consumer. Even if a product is
defective before it ever reaches the
distributor or retailer, they can be held liable for the defect. In order for
there to be liability, the injured person must prove that the defendant either
manufactured, produced, distributed or sold the defective product.
What Constitutes a Defect?
A product which was not manufactured according
to specification
A product which malfunctions
A product which differs from the manufacturer’s
intended result
A product which fails to match the quality of
similar products
A
product design which did not perform as safely as an ordinary
consumer would have expected it to perform
A product that lacked sufficient instructions
or failed to warn of potential risks, side effects, or allergic reactions
Common Defenses
Defendants in
products liability cases often
raise the following defenses:
The product was not defective
The product was altered after it left the
manufacturer, distributor or retailer
The product was misused
The product was used in a way that was not
reasonably foreseeable by the defendant
The product was not manufactured, distributed
or sold by the defendant
The product performed as safely as an
ordinary consumer would have expected
The product’s design benefits outweighed
the risks of the design
The product’s potential risks, side effects
or allergic reactions were not known or knowable through the use of
scientific knowledge
The product’s potential risks, side effects
or allergic reactions would have been recognized by an ordinary consumer
The product’s alleged defect was not a
cause of the plaintiff’s injury or harm.
The plaintiff was negligent in using the
product and his negligence was a cause of the injury or harm
Someone other than the defendant was
negligent and that person’s negligence was the cause of the injury or harm
The product was tampered with after the accident
How Does the Plaintiff Prove a
Products Liability Case?
The simple answer is "not easily." As
with medical malpractice actions, the defendant in a products liability action
has the desire and monetary resources to hire the most experienced attorneys
and expert witnesses to try to defeat the plaintiff’s claim.
The plaintiff’s attorney must be
knowledgeable and experienced in handling products liability cases or the
plaintiff will be fighting an uphill battle to begin with. The following is
just some of the work that must be done:
Identify the manufacturer of not only the
product, but its component parts
Establish facts to enable filing the action
in a location or venue most favorable to the plaintiff
Obtain and
secure the product
Choose the correct experts to inspect the
product
Ascertain why the product failed
Discover what made the product defective
Obtain, read, and understand the relevant
documents pertaining to research, design, development and manufacture of the
product
Anticipate and defeat the potential defenses
Network with other lawyers throughout the
United States who may have information concerning the product
Prepare for and depose the defendant’s
experts
Prepare demonstrative exhibits to illustrate
how the product was defective and how the product caused the harm
Effectively present the evidence to the jury
Have the knowledge and ability to persuade
the judge to exclude improper defenses and evidence offered by the defense at
trial
Automobile Products Liability
Cases
Products come in all shapes, sizes and uses.
The following is a list of some product defects in an automobile that can
cause injury, paralysis and death:
Design and manufacture of
passenger and light truck tires
Roof crush resistance
Failed or bad body welds
Failure to use safety glass
Air bag deployment systems and
air bag sensor systems
Seat and seat back failures
Placement and construction of
seatbelts and seatbelt latches
Door latch mechanisms and
automatic door lock devices
Fuel pump systems
Design and placement of fuel
tanks
Design and manufacture of fuel
tank filler necks
Lack of proper passenger
compartment padding
Parking/emergency brakes and
cabling
Service brake systems
Child restraints and child seats
Ignition modules
Cruise control components
Vehicle stability and ability to
safely perform foreseeable avoidance maneuvers.
Design and manufacture of
transmission systems including linkage and parking pawl mechanisms
Conclusion
Products
liability cases usually involve the most devastating
injuries. The injured person requires the services of an
attorney who is both knowledgeable and experienced in the
field of products
liability.
The attorneys at Cheong,
Denove, & Bennett have authored numerous papers and have
lectured to other lawyers on products liability.
Cheong, Denove, Rowell & Bennett
has the extensive resources to handle the most
complex legal matters, yet is small enough to
offer individualized service to our clients.
 |
At
Cheong, Denove, Rowell & Bennett we believe the
more you know,
the better choice you will make. |
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