|
Answers to the Twelve Most Frequently Asked Questions in Defective Product Cases (1)
1. If I am injured or a loved one is killed by a defective
product, who can I sue?
You can sue the manufacturer of the product and every
company that was in the marketing chain of the product, i.e.,
wholesalers, distributors and retailers.
2. What products are covered under California product liability
law?
Virtually every product is subject to California product
liability law. This includes everything from cars to toys to
chairs to refrigerators to clothing to industrial machines,
household equipment, etc. (There are some limitations in cases
against medical device manufacturers and prescription drug
companies.)
3. Isn't it hard to take on a product manufacturer in a legal
case?
Yes. Product manufacturers spend hundreds of thousands of
dollars in any given case attempting to defend the design and
manufacture of their products. If they lose a case, it can have
monumental consequences for the manufacturer far beyond your
case. Therefore, it will spend whatever money it needs to spend
to win the case.
Further, manufacturers rarely settle cases without a big
battle because of their concern that it might bring on cases by
other individuals who are injured or killed by their products.
The only way that a plaintiff can be successful in most product
liability cases is to hire an attorney who has the resources to
take on a large manufacturer.
4. If the product manufacturers spend so much money defending
cases, how does a plaintiff ever win?
Because the law is on the side of victims of defective
products.
Thankfully, California applies a "strict liability" standard
to defective product cases. That means that a plaintiff does not
have to prove negligence to prevail. Liability (fault) will be
found if the plaintiff can prove that the product was defective
and that it caused the plaintiff an injury.
5. What constitutes a defective product under California law?
A product may be found to be defective because of a
manufacturing defect, a design defect or a warning defect. If
plaintiff can prove any one of these defects, he or she will win
the case against the manufacturer.
6. What is a manufacturing defect?
A manufacturing defect exists if, when the product left the
manufacturer's control, it differed from the manufacturer's
intended result or from apparently identical products of the same
manufacturer and the product was used in a manner reasonably
foreseeable by the defendant, but nonetheless caused plaintiff
injury. An example of this type of defect would be an exploding
soda bottle.
7. What is a design defect?
A design defect exists when a product is manufactured
exactly as the manufacturer intended, yet the product is legally
defective because of a design flaw.
There are two tests to determine whether a design is
defective. One is the "consumer expectation test" which asks if
the product performed as safely as an ordinary consumer would
expect. The second is the "risk benefit test" where the question
is asked if the inherent dangers of the product outweigh its
benefits.
8. What if the products contained a disclaimer? Does the
manufacturer still have a duty to warn?
A product manufacturer cannot avoid a strict liability claim
by placing any type of disclaimer on the product. Disclaimers
are unenforceable for the purposes of product liability law.
Further, a product that is not otherwise defective in
manufacture or design may still be considered legally defective
if a suitable warning about its dangerous propensities is not
given or the manufacturer fails to provide appropriate safe use
instructions.
9. What if the product that injured me is old?
The age of a product does not act as an automatic bar to a
product liability suit. However, older products are not expected
to meet modern standards of production and safety.
The key question is whether at the time the product was
manufactured, it was improperly manufactured or it did not meet
standards of design and warning that were in affect at the date
of manufacture.
10. What damages can I recover in a defective product case?
If a plaintiff can prove that the product is defective, he
or she is entitled to recover damages for past and future medical
treatment, past and future wage loss, damages for pain, suffering
and emotional distress, and, if the plaintiff can establish bad
enough conduct on the part of the company punitive damages (i.e.
damages intended to punish the manufacturer).
If the plaintiff dies, his or her survivors are entitled to
recover full compensation for their economic losses that result
from the plaintiff's death as well as emotional distress damages
which stem from the loss of society care and comfort of the
decedent. If the survivors can prove that the plaintiff lived
for a period of time between the negligent act and death, they
can also bring an action for punitive damages.
- Do I need to retain an attorney and how soon?
Absolutely. Unless you are looking for a nuisance
settlement, it is almost unheard of for a product manufacturer to
settle a case without plaintiff retaining an attorney. Defective
product cases must generally be brought within one year from the
date of your discovery of your injury. But since early
investigation is so critical in a product liability case, you
should retain an attorney as soon as you can.
- Will my defective product case settle out of Court?
Maybe. Although most cases settle out of court, product
liability cases may be the exception since the manufacturer does
not want to admit it designed a defective product. Even with a
confidential settlement, there is a hesitancy to settle. This is
why you need to retain an attorney who is willing to take the
time and expend the money necessary to try a product liability
case.
1. Most legal questions require complex answers. The answers
provided here may not be complete or fully accurate but attempt
to provide consumers with abbreviated answers. For more detailed
answers to these questions, a consumer should check out other
articles in this section of this web site, research other legal
articles and texts on the subject matter or consult with an
attorney.
|
