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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.
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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. |
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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.
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Click to Enlarge |
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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. |
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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. |
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Examining a defective
Firestone tire |
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
Recent Cases
John Rowell and Bill
Karns obtained a favorable result in products liability case
involving a plastic liner used in hip prosthesis. They
alleged the design of the plastic liner was designed defectively
causing it to fracture.
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.
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At Cheong,
Denove, Rowell & Bennett we believe the more you know,
the better choice you will make. |
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