Product Liability Legal Fee Financing
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There is no federal product liability law. Rather product liability claims are based on state laws and each state’s set of commercial statutes modeled on the Uniform Commercial Code. Generally, though, liability laws require products to meet the ordinary expectations of the consumer and if they don’t, rule who is responsible for defective or dangerous products. When a product has an unexpected defect or danger, it fails to meet consumer expectations. Those held responsible for placing a defective product in consumers’ hands include:
- Product manufacturer
- Manufacturer of component parts
- Retail store
Claims of product liability are based on:
- Theories of negligence
- Strict liability
- Breach of warranty
Some states still require that a “privity of contract” exist between the person injured by a product and the supplier of the product in order to bring suit. However, the majority hold that any person who foreseeably could have been injured by a defective product can recover for their injuries, as long as the product was sold to someone — not just to the person who purchased the product. The sale must have been made in the regular course of the supplier’s business for them to be held liable.
The plaintiff in product liability cases has to prove that the product that caused injury was defective and that the defect made the product unreasonably dangerous. These defects include:
- Design defects — defects present in a product from the beginning even before it is manufactured, such that something in the design or the product is inherently unsafe.
- Manufacturing defects — those that occur in the course of a product’s manufacture or assembly.
- Marketing defects — flaws in the way a product is marketed, such as improper labeling, insufficient instructions, or inadequate safety warnings. Even in a case where a product cannot be made safer without losing its usefulness, manufacturers and/or suppliers must give proper warnings of the product’s dangers and risks.
Two doctrines in product liability cases help plaintiffs recover even if they cannot prove a manufacturer was negligent:
- Res ipsa loquitur shifts the burden of proof to the defendants and infers that the defect at issue would not exist unless someone was negligent.
- Strict liability eliminates the requirement that the plaintiff prove the manufacturer was negligent but only that the product was defective.
Since the 1970s, groups of plaintiffs have consolidated lawsuits against the manufacturers of products such as contraceptive devices, silicone breast implants, and asbestos and tobacco products. These include:
- McDonald’s coffee. An elderly woman who was severely burned by McDonald’s coffee filed a product liability suit against the company, offering to settle for just her medical costs. The coffee was 40 to 50 degrees hotter than is fit for human consumption and was known to have burned more than 700 people. McDonald’s refused to settle, the case went to court, and a jury awarded the woman $200,000 in compensatory damages and $2.7 million in punitive damages. On a post–trial motion, the court reduced the punitive award to $480,000.
- Ford Pinto. In a document known as the Ford Pinto Memo, the company documented its use of a cost-benefit analysis in which the conclusion was reached that the cost of liability for the car’s design defects — which translated into exploding gas tanks — would be less than that of repair. Ford settled out of court for an estimated $200,000 per death.
- Vioxx. A New Jersey jury awarded $4.5 million to John McDarby who suffered a heart attack after taking the painkiller Vioxx for four years. The jury found that Merck intentionally misled the FDA about the safety of the drug.
- Johnson & Johnson DePuy hip replacement systems. J & J took quarterly charges in January 2012 of more than $3 billion related to the extensive recall of its metal-on-metal hip replacement devices which shed metal fragments causing disabling injuries. On March 18, 2013, in the first trial involving the DePuy ASR hip implant, a California jury returned an $8.3 million verdict in favor of a Montana patient who was forced to undergo revision surgery.
Let RD Legal Accelerate Your Product Liability Litigation Related Fees
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