Product Liability

Products Liability FAQ

Q: Can I sue a foreign corporation that made a portion of the product?

  • A:Today, more and more corporations are manufacturing their goods outside of the U.S. Local firms can also have portions of their products made by foreign corporations. It is possible to sue a foreign corporation for a defective product that is then sold in the United States. Once a product is sold in the United States, the corporation becomes subject to the laws of the U.S. Foreign corporations do not like to be sued in the U.S. so they make it very difficult to do so. Having experienced counsel to represent you is the best way to ensure that you'll recover for your injuries.

Q: How do I know if I have a good case against a tobacco company?

  • A:Cases against a tobacco company are extremely difficult. The tobacco industry is extremely large, has lots of resources, will fight claimants at every turn and will appeal pretrial rulings as well as the final judgment in any successfully tried case.

A lawyer will be looking for the following before accepting a tobacco case:

  • A recently diagnosed cancer or emphysema, so that statute of limitations issues aren't a concern
  • A victim who was addicted before 1968, when cigarette companies were first required to place warning labels on their advertisements
  • A victim and other witnesses who can identify one or two brands of cigarettes smoked, so the company that sold the cigarettes can be identified

If all these requirements apply in your case, you'll want to immediately consult with a lawyer who has done a fair amount of tobacco litigation.

Q: I, as well as others, have been hurt when using a product. Do we have a class action?

  • A:You may have a class action suit if there are a lot of people that have been injured by the same product. If your circumstances are similar to others who have been injured, you could hire an attorney to represent all of your claims.

Q: I was in a car accident and the air bags in my car didn't deploy. Do I have a case against the car manufacturer?

  • A:That depends, as there are several factors that go into whether or not an air bag will deploy in a collision. Assuming you're referring to a driver's side air bag located in the steering wheel of the vehicle, it's set to deploy only in a frontal collision. So, if your vehicle were struck in the rear, you wouldn't expect the air bag to deploy. But, if you had a collision with an object in front of your vehicle, and your speed was in excess of approximately 12 miles per hour on impact, you should expect the airbag to inflate. Your best bet is to keep the car and consult with an engineer and an attorney.

Q: I was injured using a product. Is the manufacturer liable for my injuries?

  • A:Possibly. Product liability cases turn not only on whether there was an injury from using the item but also on whether the product was defective or unexpectedly dangerous as well.

Q: If I decide to pursue my case, what do I need to provide to my attorney?

  • A:You will need to provide your attorney with:

    • The product itself (if you still have it)
    • Information about where you purchased it
    • Any manuals or other material that came with the product
    • Pictures of the product and where the injury occurred, if possible
    • Copies of your medical records
    • Time that you missed from work
    • Receipts for any property damage (such as cleaning bills or receipts for damaged clothing)
    • Begin a journal and document everything:

      • Details of what occurred
      • What was said by any witnesses
      • Your injuries, the pain and feelings you experience due to your injuries
      • Appointments resulting from the accident and distances traveled
      • Time you had to take off work
      • Time spent talking with the insurance company as well as your lawyer
      • Effects of the injuries on your family

Q: Is there a certain amount of time that I have to file my case?

  • A:Yes. In every state there is a limited amount of time, called a "statute of limitations," in which you have to file your suit. The time when the statute of limitations begins to run is usually the date of injury.

Some states have what is called a "delayed discovery" rule where the statute of limitations doesn't begin to run until you "discover" the injury. This is important in some cases, such as where you develop cancer due to exposure to a hazardous material or you have breast implants that leak, and you don't know about it until months or years later.

Q: What are the defendants likely to argue against my case?

  • A:The defendants are likely to argue that you were not using the product as intended when you were injured. They may also say that is was due to your own negligence that you suffered injury. In some cases your lack of due care may reduce the amount that you can recover. If you are partially at fault for your injuries, you may only recover a portion of damages that can be attributed to the defendants. This is called "comparative negligence" or "comparative fault."

There may be some instances where your negligence had nothing to do with the cause of your injuries and you would recover fully. An example would be where you were driving while intoxicated, but were injured due to faulty brakes on your car.

Q: What do you need to prove in a products liability case?

  • A:This varies from state to state. Product liability cases are generally based on strict liability rather than negligence. Strict liability means that you don't have to prove fault, you only have to prove that the product was defective, it injured you and your injury was as a result of the defect.

Q: What does "defective product" mean?

  • A:A "defective product" is a product that causes damage or injury to a person as a result of some defect in the product itself, its labeling or in the way that the product is used. The manufacturer or the person who sold the product to you can be held liable.

    All states have some form of products liability. Cases include everything from a car seat with handles that break when they're being carried, to a car with an airbag that will not deploy, to harmful side effects from a drug that is improperly tested.

Q: What is the basis for a products liability claim?

  • A:There are three basic types of defects:

    • Manufacturing Defect: The product is well designed, but the way in which it was made makes it unsafe. Maybe the kind of plastic used was weak and that caused the plastic to break when it should have been sturdier.
    • Design Defect: The design of the product is unsafe, so the entire product line is unreasonably dangerous. See if there's a better way to design the product and whether it makes sense to do so. Design defects also apply to the way a product is packaged. For example, if a drug is supposed to be sold in a childproof container and it's not, and a child takes the drug and dies, the manufacturer can be held responsible.
    • Insufficient Instructions or Warnings: The manufacturer may design a product that's perfectly safe and has no manufacturing defects, but then fails to include proper warnings or instructions for safe operation.

Q: What type of damages can I recover?

  • A:You can potentially recover four different types of damages from a products liability case:

    • Compensatory damages - these are the damages to cover your medical bills, time lost from work and any property damage that was caused by the defective product.
    • Pain and suffering - these damages are for the pain that you endured as a result of your injury.
    • Loss of consortium - these damages are to compensate you for the effect this has had on your relationship with your spouse. Your spouse may be able to recover this type of damage even if the defective product did not personally injure them.
    • Punitive damages - if the defendants' conduct was so awful that the courts want to be sure that they and others will never do it again, they may award damages that punish the defendant. Many jurisdictions are limiting or restricting the amount of punitive damages that you can recover.

Q: Who can be held responsible if a defective product injures me?

  • A:The manufacturer, the company that sold it to you or the person who repaired it can be held responsible. Someone who didn't purchase the goods, but were using it in a manner that was foreseeable, may also be covered if they're injured. People who are injured when someone else was using the product may be covered as well, if their injuries were caused by the product's defect.

Manufacturers are responsible for damages caused by the defective product. Sellers of the product, which includes everyone between the manufacturer and the reseller such as wholesalers and distributors - those who are considered to be in the "chain of commerce" - may be liable, even if they didn't know of or cause the defect.

There may be a question whether the seller can be held liable for a defect in a product if you purchase "second hand goods." This varies upon the circumstances and from state to state. However, if the product was guaranteed to work like new, then there may be a basis for liability.

Tracking down all of the parties who may be responsible is tricky - a good attorney will be vital in finding all of the parties that should be sued.

Q: Will I need a lot of money to pursue a claim?

  • A:Most product liability cases are taken on a "contingency fee" basis, which means that you don't have to pay the attorney unless they're successful. If they do get you some compensation, then they take a percentage of the settlement. In some states the attorney is even allowed to pay the expenses in the lawsuit (witness fees, medical bills, and so forth) and you reimburse those at the end of the case from the settlement or award. Some states require that you pay the costs as they come up, so it's important to discuss this with your attorney up front.

Q: Will it affect my case if I used the product in a way not necessarily intended?

  • A:Manufacturers are obligated to anticipate foreseeable misuse by consumers. They're required to warn consumers about potential dangers when using the product in manners not intended. If it was not possible to foresee the manner in which a consumer used a product, the manufacturer may not be liable for any damages.
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