When you purchase a product at a store or even online, you assume that what you’ve purchased is safe and that no injury will result from it. You assume that the product has been tested by top notch professionals or your assume that the product has been approved by a federal or state regulatory agency and that the product is safe for the public. That, unfortunately, is not always the case and defective products do indeed can cause injury or harm to either yourself or loved ones. When this happens, it is important to understand your rights, the nature of a defective product claim, and how to proceed with a defective injury claim. This article shall address.
What is Product Liability and What is the Basis for Product Liability Claims?
Product liability refers to the legal term meant to describe the liability of a manufacturer or distributor whose product results in an injury to a consumer. When it comes to the realm of product liability, such claims are governed by each state’s own individual laws; there is no federal law that dictates product liability.
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Accordingly, a person who is considering pursuing a products liability claim in New York should consult with a personal injury attorney who is familiar with product liability law and who specializes and who has experience in winning products liability claims when the product is defective.
Product liability is generally derived on three theories of liability. This includes:
- Strict Liability. Whereas many claims are derived on the basis that someone was negligent in their actions, and that their negligent actions results in an injury, strict liability allows an injured person to receive compensation from a manufacturer or distributor of the product that injured them, without have to prove that the manufacturer or distributor was negligent.
- Breach of Contract. If a person is injured due to the defectiveness of a product, that person may sue the manufacturer or distributor if a product does not meet certain standards listed in a warranty. This would then be breach of contract.
- Negligence. Unlike strict liability, negligence involves the carelessness of the manufacturer or distributor that ultimately resulted in the injury. This could be due to a variety of factors, such as failing to inspect properly or design flaw.
Due to the complex nature of product liability claims, it is important to talk with an experienced product liability attorney so that they analyze your specific facts and determine which basis to sue.
What Are the Different Types of Product Liability Defects?
In general, New York recognizes four main types of product liability claims in order to prove that the product is defective. These include the following:
Manufacturing Defects
One of the most common product liability cases is when the injury results from a product that was defectively manufactured. This could be due to an error that occurred in the factory process, during the inspection process, or possibly even the shipping process, resulting in the product becoming different from all the other products on the shelf.
Examples of a manufacturing defect may include:
- A crack in a medical device making it unreasonably dangerous
- A loose screw
- Using the wrong materials when constructing a product, including screws, bolts, and fasteners.
- A toy painted with lead paint
- Erroneously assembling materials and parts.
- Incorrectly installing wires and circuitry.
- Using harmful chemicals during the production process.
- A poor paint job resulting in toxic paint
- Poor electrical wiring
In each example, the product was poorly manufactured, which resulted in the injury. Accordingly, if a person was riding a motorized scooter and all of a sudden, it stopped suddenly resulting in you falling off the scooter, or should the brakes fail to respond, if the reason was due to the manufacturing and not due to your own negligent driving, you may have a manufacturing defect basis for your liability claim. Accordingly, expert testimony is critical to approve that the product was manufactured defectively. An experienced attorney can assist with this.
Design Defects
When it comes to liability claims, unlike a manufacturing defect which focuses on the manufacturing process, a design defect means that the product was inherently flawed to begin with due to the design of the product. Even if the product was manufactured perfectly, the product was dangerous to begin with. You see this often in certain children toy lines whereby the toy itself was not thought out properly and posed to be dangerous to little children.
Other examples of a design defect include:
- If the product is top heavy and will easily fall
- A model of car will flip on its side when it turns a corner
- A robot toy has a spring mechanism that will shoot its fists, and that spring is so powerful it causes injury to children, particularly to their eyes
- Sunglasses that fail to protect the eyes from ultraviolet rays
- A light bulb that will explode suddenly if its gets too hot
- Electric blankets that electrocute the user when turned on high.
In each example, the injury must have been caused by the defective design. Accordingly, expert testimony is critical to demonstrate that the design was defective from the very beginning and that it was that design which is what caused the injury.
Marketing Defects (Failures to Warn)
Should the product cause injury due to a failure to display a proper warning, that can also be a basis for product liability. Sometimes, a product is dangerous in some way that’s not so obvious to the consumer or that requires the consumer to be able to exercise special precautions or diligence when using it. If the product did not provide adequate warnings, the basis may be due to a marketing defect.
Examples of a failure-to-warn claim include:
- An electric coffee pot that is packaged without sufficient warning concerning its steam valve.
- Incorrect user instructions.
- False claims.
- An over the counter medication that does not include a warning label that it may cause dangerous side effects if taken in combination with another common drug such as aspirin.
- Failure to warn consumers of risks.
- Advertisements encouraging improper use.
- Improper warning labels.
- A corrosive paint remover that is sold without warning labels or adequate instructions on how to use it.
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In the above examples, the products were not marketed properly and did not contain the proper warning labels or instructions to the consumer, resulting in their injury. In such cases, it is important to discuss your case with an experienced attorney who can assess what labels should have been provided and how strong your case is.
Breach of Warranty
Breach of warranty is the legal liability that applies to a product manufacturer when the product that they make doesn’t work as it should. Breach of warranty focuses on the express or implied promises made during the sale of the goods transaction.
Express Warranty. Under the federal Magnuson-Moss Warranty Act, a company must provide a written express warranty if a product is sold for more than $15.
An express warranty is an agreement by a seller to provide repairs or a replacement for a faulty product, component or service within a specified time period. An express warranty does not have to be writing.
A verbal express warranty, for example, could be when a car dealer informs a customer that they guarantee that the engine will last another 100,000 miles. If the car fails to live up to this claim, the buyer may then take it up with the seller. However, although this is in fact an express warranty, proving the existence of a verbal express warranty may prove difficult.
Written express warranties, by contrast, are easier to prove. An example would be, a light bulb manufacturer prints the words “lasts 15,000 hours” on its packaging. Although words “guaranteed” or “warranty” do not appear, this claim is still an express warranty.
Implied Warranty. Unlike an express warranty, an implied warranty or implied warranty of merchantability or a warranty of fitness means that a product is guaranteed to work as claimed. For instance, a leaf blower that does not create enough suction to suck any leaves is in breach of the implied warranty of merchantability
Federal law defines “merchantable” as the product must:
- Conform to the standards of the trade as applicable to the contract for sale.
- Be fit for the purposes such goods are ordinarily used, even if the buyer ordered them for use otherwise.
- Be uniform as to quality and quantity, within tolerances of the contract for sale.
- Be packaged and labeled per the contract for sale.
- Meet the specifications on the package labels, even if not so specified by the contract for sale.
- Both implied and express warranties can be tricky, so it is important to talk with an experienced defective product lawyer to analyze your case and determine which warranty may apply, if any.
Recent Product Liability Cases
Product liability cases are all around us and you may have a product liability case and not even realize it. Below are three real life examples of defects liability in which the company was held liable.
Hand Sanitizer Cases
With the breakout of COVID-19 that has swept across the nation and the world, many hand sanitizer companies began marketing their hand sanitizer products to the public with questionable information, and thereby being susceptible to marketing defectively.
A prime example of marketing defects was when hand sanitizer company Vi-Jon was sued in California federal court accusing it of falsely claiming that its hand sanitizer Germ-X can fight off the coronavirus. The consumers pointed to advertisements for Germ-X that either explicitly say the sanitizer counteracts coronavirus and other communicable viruses or imply “this misrepresentation with the use of wording, images, and links.”
Even before the coronavirus outbreak occurred, the US Food and Drug Administration sent the maker of Purell a warning telling it to stop marketing the hand sanitizer as reducing or preventing diseases, including the Ebola virus and the flu.
Shortly thereafter, Purell maker Gojo Industries, Inc. was sued in New York federal court in a class action suit for violating consumer protection laws by marketing its Healthcare Advanced Hand Sanitizer product line as effective for reducing the spread of viruses.
Although hand sanitizer certainly does help prevent the spread of disease such as COVID-19, there is no guarantee that it will definitely prevent contracting it.
Ikea Dressers
When we talk about product liability cases, a prime example involves negligent design of its dressers by IKEA. After the deaths of six children and nearly 30 injuries, Ikea in June 2016 began recalling 29 million chests and dressers that have the propensity to tip over and trap children underneath. In the case of Dukich et al. v. Ikea US Retail LLC et al.,in the U.S. District Court of the Eastern District of Pennsylvania, the parents of their deceased child were awarded a $46 million for wrongful death after the IKEA dresser that they had purchased and properly put together tipped over and fell on top of their son, crushing his neck and resulting in his death from suffocation.
An earlier recall of IKEA furniture that did not meet U.S. standards had resulted in other fatalities and injuries. Consumer advocates said that company actions to warn consumers and to prevent further injuries and deaths were not enough, and thereby IKEA had violated a severe marketing defect.
This multi-million dollar settlement awarded to the family comes after the response by many consumer advocacy groups. According to the groups, IKEA’s response to protect children from injuries caused by the company’s furniture was insufficient. As part of the settlement, IKEA has to work with an advocacy group to add stabilizing mechanisms to the dressers.
The family has donated $1 million to each OF the three different groups for consumer advocacy. Advocates have also urged the U.S. Congress to pass a bill called the Sturdy Ac, which would require the Consumer Product Safety Commission to set up rules and regulations regarding the stability of furniture to prevent further accidents and deaths.
Johnson and Johnson Baby Talc Powder
A real life example of design defects and manufacturing defects has to deal with Johnson and Johnson’s Baby Talc Powder product line and the findings that much of the product line contained asbestos resulting in ovarian cancer for females. Moreover, thousands of women who have used the product over the years have called out Johnson and Johnson, accusing the global company that it did not sufficiently warn its customers of the asbestos and the potential risks involved to adequately warn them of the potential consequences, such as ovarian cancer. For decades, the baby powder’s primary ingredient was talc, a mineral known for its softness, but also projecting a fragrance that is said to be one of the most known in the world.
In October 2019, Johnson and Johnson recalled at least 33,000 bottles of the baby powder after the Food and Drug Administration said it discovered evidence of chrysotile asbestos in a bottle purchased from an online retailer. Soon thereafter, the company said that multiple tests of the same bottle came up clean.
Johnson and Johnson has had a long history of lawsuits against the company for product liability due to its baby powder. In one case, the jury found against Johnson and Johnson and awarded $4.7 billion to 22 women in 2018.
Importance of a Defective Product Liability Claims Lawyer
Product liability can be very complex if you do not have a familiar legal understanding of how to prove your case and what to argue. Not only do you need to provide a detailed factual argument of what happened to you, but then you have to apply those facts to New York’s product liability law.
Furthermore, companies will defend their products vigorously and will hire expensive lawyers and law firms to try to make sure that your product liability claim receives no compensation whatsoever, or if there was a settlement, as little as possible. Accordingly, you will need an experienced and seasoned defective product attorney who is familiar with litigation regarding products liability and who knows how to go up against these corporate lawyers.
A qualified defective product lawyer from the Law Office of Yuriy Moshes can provide you assistance and knowledge about product liability claims, the elements of product liability claim, and product liability law . Their offices help injured parties in the New York City area including all its boroughs (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.
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