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 over 35 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.
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.
Other recent examples of defective products include Wright Medical Technology hip implant Profemur R which was found by the Los Angeles Superior Court to have defects in its manufacturing; 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 over 35 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.
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.
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.
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.
Although a defense may appear on its face to be frivolous, it must be taken seriously in order to defeat it.
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.
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.
John Rowell and 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.
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, Rowell & Bennett have authored numerous papers and have lectured to other lawyers on products liability, damages and trial practice.
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.