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Consumer Products: Defects, Defenses & Proving Liability

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For attorneys who represent injured victims, exploring potential products liability claims can be a successful expedition in the fight for full compensation. However, given the vast expanse of consumer and retail products cycling through the market, it can also be a daunting and difficult challenge.

As we have discussed, products liability litigation is not for the faint of heart; it requires ample preparation, an insightful approach, and extensive resources to take on powerful corporate defendants and insurance carriers. Positioning Plaintiffs’ to prevail in their claims begins from the very moment they reach out for help.

The Basics of Consumer Products Liability: Theories of Liability

Products available to consumers run the gamut from industrial machines and motor vehicles to children’s toys, food and medication, household appliances, and cosmetics. Every product, ostensibly, has a purpose, but not every product is safe before it hits the market.

When defective retail products are suspected of causing preventable accidents, injuries, or deaths, an attorney’s job begins with their first conversation with a victim. Depending on the product, a great deal of exploration into the item, its purpose, and potential problems or reported risks can be found through cursory searches and independent investigation.

In some cases, certain government agencies may have regulatory domain over a product class. The Consumer Product Safety Commission (CPSC), Food & Drug Administration (FDA), and National Highway Traffic Safety Administration (NHTSA) are a few examples. These agencies may develop minimal safety standards or issue recalls when retailers fail to do so voluntarily, and can be a resource for determining whether products have been the subject of previous complaints or reported injuries, and provide insight on problematic issues associated with similar or competing products.

Whatever a specific product at issue may be, Plaintiffs who bring claims over consumer products generally do so under three basic strict liability theories:

  • The design defect theory, which claims the product’s design is in some way defective, and makes the product unreasonably dangerous. In many consumer products cases, a design defect can be proven by establishing that the product’s design did not meet an ordinary consumer’s expectation of safety (CACI 1203).
  • The manufacturing defect theory, which claims a product is unreasonably dangerous due to a deviation in the design or specifications from the typical product or the typical manufacturing process (CACI 1201).
  • The marketing defect theory (or failure to warn), which generally claims a product did not come with adequate instructions or warnings about potential risks that were known, or should have been known, by the manufacturer (CACI 1205).

Many products cases are hinged on claims of design defects and failures to warn, both of which have a few common elements of proof, including:

  • Proof that the product was in a “substantially similar” condition at the time of injury as it was at the time it was produced and released by the manufacturer;
  • Proof that the product was used or misused in a “reasonably foreseeable” way;
  • Proof that the defect was a “substantial cause” of the Plaintiffs’ injury.

In addition to design defects, many products cases also claim failures to warn. This is common when products are inherently dangerous to the point that no amount of care in the product’s design or manufacture can eliminate risks of harm to users.

For these products, manufacturers commonly owe a duty to warn consumers or users. A claim based on a marketing defect, therefore, raises the claim that the defect is the failure to instruct or warn consumers about potential risks, and how those risks can be mitigated or avoided.

In order to prove liability for failures to adequately warn – either as a negligence claim (CACI 1222) or a strict liability claim (CACI 1205) – the Defendant’s conduct must have been a substantial factor in causing harm. Proving the “substantial factor” element can be challenging, as Plaintiffs must essentially prove not only that they would have read, understood, and remembered a warning, but also that they would have altered their conduct accordingly so as to avoid injury.

The question to answer in failure to warn cases is, often: What difference would an adequate warning or instruction have made?

Design and marketing defect claims may be the most common theories of liability in products cases, but Plaintiffs’ attorneys can plead multiple causes of action to strengthen their case and gain additional leverage. This may include pleading any of the three primary defect claims (design, manufacturing and / or marketing defect), or bringing a claim under both a negligence and strict liability theory (such as in the case of failure to warn).

Plaintiffs may elect to bring other claims in addition to strict liability causes of action, such as:

  • Breach of warranty, which claims a consumer was harmed by a product because it was not of the quality the buyer would expect (breach of implied warranty of merchantability, CACI 1231) or because the product was not as represented (breach of express warranty, CACI 1230).
  • Failure to recall or retrofit, which claims a manufacturer and / or distributor became aware of product defects after the product was sold (CACI 1223).
  • Negligent product rental, which claims a person or party that rented a product failed to use reasonable care to inspect the product for defects, make them safe for their intended use, and adequately warn of any known dangers (CACI 1224).

Pleading multiple causes of action, and particularly those based on negligence, can provide juries with more reasons to assign greater fault to a Defendant, if supported by the fact and argued compellingly.

Common Defenses

Consumer products cases are contested aggressively by Defendants and insurance carriers, which is why Plaintiffs must be prepared for any number of defenses. Some of the most common include:

  • Comparative fault – comparative fault of the Plaintiff and / or a third party.
  • Product misuse or modification
  • Sophisticated user (less common for many general consumer products)
  • Parental negligence (in the case of children’s toys)

Defendants in consumer products cases often allege negligence on the part of consumers, or other parties. If a Plaintiff negligently used or misused the product, and / or modified the product, for example, damages may be reduced by a percentage of allocated fault if their conduct was a substantial factor in causing the injury. Defendants may also argue that other parties’ negligence played a role in the accident, such as negligent inspection or product repair, in order to reduce their liability.

Plaintiffs’ attorneys would be well-served to anticipate products Defendants’ efforts to ascribe as much fault as possible to Plaintiffs and third parties, and strategize ways to plead multiple causes of action in one single products liability action.

Investigation & Discovery: A Roadmap to Liability

Proving liability in any consumer products case can vary depending on the specific facts and product involved. There are, however, some key steps Plaintiffs’ attorneys can take to best position their clients for a successful claim – as well as things clients can do to assist their attorneys in their pre-litigation workup and products investigation:

  • Secure the product: Preserving the product is the most essential step in a consumer products case, as it will help establish whether a product was “substantially similar” in condition at the time of injury as it was at the time of production, and allow for further examination. Plaintiffs’ counsel should immediately take possession of the product, including any pieces or components, and secure the product in an evidence storage facility that can be safely accessed when needed by either side.
  • Research the product: Plaintiffs’ attorneys can benefit greatly from meticulously researching the product at issue. The internet can be a trove of information about the product, its uses, and other consumers’ experiences with the product, including any problems with performance, risks, or injuries. The CPSC and related government agencies may provide insight as to whether a particular product is the subject of complaints or reported injuries, pending investigations, or litigation. In some cases, however, a defect may not affect all product units, or may not yet be discovered. Additionally, attorneys can purchase the product themselves if it is still available, evaluate instructions, labeling, and warnings, assemble the product, and use the product to familiarize themselves with how it works, or where potential risks may exist.
  • Secure immediately available documentation: Plaintiffs can help their attorneys and their cases by preserving any and all documentation related to the product and their injury. This includes all packaging, instructions, manuals, ancillary items, receipts, medical records, and any reports or correspondence with potential defendants they may have in their possession.
  • Client interviews: Plaintiffs themselves are often the best, and sometimes only, source of information about a product and an accident. As such, experienced attorneys will compile extensive notes from speaking personally with clients, witnesses, and / or families. Client conversations should focus on answering essential questions, such as:
    • When a product was purchased and from where
    • Whether the consumer was aware of any risks or hazards associated with the product
    • Who assembled the product, how the product was assembled, whether instructions were used, and whether any problems were encountered during assembly
    • Whether the product was in any way modified, and if so how and when
    • Whether a product was used according to provided instructions
    • How a product was being used at the time of injury
    • Whether the consumer had experienced any issues with the product prior to injury
  • Witnesses: Witnesses who saw the accident or the assembly / use of a consumer product should certainly be evaluated and potentially interviewed. Additionally, expert witnesses can provide insight into issues related to a specific product or a product class in general. Even if they are not used for their testimony in a risk-benefits test, industry experts can provide direction as attorneys continue to investigate and build their clients’ claims.
  • Informal & formal discovery: Attorneys can accumulate a great deal of information and documentation through informal and formal means, including reports or investigations from law enforcement, first responders, employers / businesses (if accidents occurred at work, school, child care facilities, or a place of business), and any regulatory agency (such as OSHA). Attorneys can also search for information about any pending litigation, complaints or reported accidents involving the product, and other relevant documentation that is publicly available. By establishing a line of communication with defendants, counsel can also request or issue demands for production of evidence specifically related to the product, including internal design and manufacturing specifications (as well as proposed or implemented alterations), testing reports, internal complaints, correspondence, etc.

If you have questions about a potential product defect and how Biren Law Group can help, we are available to discuss your matter during a FREE and confidential consultation. Our Father-Son legal team has extensive experience litigating products liability claims, and has the resources and insight to help clients and colleagues in a range of complex actions. Call or contact us online