Information
What Consumers Need to Know About Defective Products Cases in California
John D. Winer, San Francisco
A. What Is a Product Liability Case?
A product liability case is a case against a manufacturer
of virtually any product and against all those directly in the
marketing chain of the product, i.e., wholesalers,
distributors and retailers, in which there is a claim of the
defective manufacture or design of a product.
B. Strict Liability for Defective Products.
Under California law, a manufacturer, and those in the
marketing chain, of a product are strictly liable and legally
accountable for defective products.
A plaintiff does not have to prove negligence to prevail
in a defective product case. Liability will be found if the
plaintiff can prove that the product was defective and there
is a sufficient causal connection between the defendant, the
product and plaintiff’s injury.
Although a plaintiff can plead negligence in a product
liability case, the focus of the strict liability part of the
claim does not focus on the “reasonableness” of a defendant’s
conduct but, rather, solely on whether or not the product
itself turns out to be defective, no matter how reasonable the
defendant may have been in making the product.
The courts in California have held that those who have
reaped profits by placing a defective product in the stream of
commerce, should bear the costs of injuries caused by that
product. This is because:
► The manufacturer unlike consumers can anticipate
or guard against the recurrence of hazards.
► The cost of injury may be an overwhelming
misfortune to the injured consumer whereas the
manufacturers can insure against the risk and
distribute the cost among the consuming public.
► It is in the public interest to discourage the
marketing of defective products.
C. Who Can Be Sued for Product Liability.
As previously mentioned, strict liability can be imposed
against “all those directly in the marketing chain,” not only
manufacturers but also wholesalers, distributors and
retailers.
D. What Products Are Covered under California Strict
Liability Law?
i. Almost all products are covered.
Virtually any product is subject to strict product
liability law. This would include cars, planes, toys, chairs,
refrigerators, perfume, business and industrial machinery,
household equipment, furnishings and appliances, clothing, and
on and on.
ii. What products are not covered?
The exception to this general rule includes certain
“inherently unsafe, common consumer” products and medical
devices and prescription drugs.
The “inherently unsafe” exception only applies if the
product is “inherently unsafe” and is “known” to be unsafe by
the ordinary consumer who consumes the product with the
ordinary knowledge common to the community. This would
include products such as sugar, castor oil, alcohol and
butter.
Further, there is some limitation on product liability
cases against firearm and ammunition manufacturers. The
potential of a firearm or ammunition to cause serious injury
or death when discharged does not make it defective in design.
However, the manufacturer may still be liable if the plaintiff
can establish an “improper selection of design alternatives”
(see later sections) and if plaintiff can establish an actual
manufacturing defect (see later sections).
iii. Immunity from strict liability for
manufacturer of medical devices and
prescription drugs.
Manufacturers are immune from “design defect” strict
liability for injuries attributable to prescription drugs so
long as the drug was properly prepared (i.e., there was no
manufacturing defect) and accompanied by warnings of its
dangerous propensities that were known or scientifically
knowledgeable at the time of distribution.
Thus, a prescription drug manufacturer will only be found
liable if there was a manufacturing defect (see later
sections) or if it was negligent in its design of the drug.
Further, a drug manufacturer will be held responsible for
failure to warn of known or knowable side effects and risks.
Product liability cases against medical device
manufacturers carry the same limitations as cases against drug
manufacturers.
iv. Special rules for contaminated food.
Providers of contaminated food may be liable in product
liability theories if the injury-causing substance is foreign
to the food such as bits of glass or wire. A product with a
substance that is natural to the preparation of the food item,
such as bones, cannot be considered a defective product.
(However, plaintiff may still be able to state a negligence
cause of action.)
E.
Disclaimer on a Product Does Not Prevent Product
Liability.
A product manufacturer cannot necessarily avoid a strict
liability claim by placing any type of disclaimer on the
product. Some disclaimers may be found to be unenforceable
for purposes of product liability law.
F. Strict Product Liability Does Not Apply for Purely
Economic Losses.
A defendant can only be found liable under a strict
liability theory for physical injuries caused to persons or
property and not for purely economic losses. In other words,
a plaintiff cannot sue in strict liability in tort for the
cost of repair or replacement of the defective product or any
consequential lost profits. (However, plaintiff can still sue
for negligence, breach of contract and breach of warranty.)
G. When Is a Product Defective?
A product may be defective because of a manufacturing
defect, a design defect or a warning defect. Plaintiff needs
to prove one of the three types of defects to prevail.
H. What Is a Manufacturing Defect?
A manufacturing defect exists if, when the product left
the defendant’s control, it differed from the manufacturer’s
intended result or from apparently identical products of the
same manufacturer and the product is 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.
Plaintiff has the burden of proving that there was a flaw
in the manufacturing process, i.e., that the product was
different from the manufacturer’s design and was manufactured
differently than the prototype.
I. What Is a Design Defect?
Under California law, a product could be manufactured
exactly as the defendant intended, yet the product may
nonetheless be legally defective because of a design flaw.
Under the law, there are two tests to determine whether a
product is defectively designed. A plaintiff need only meet
the requirements of one of the tests to prevail.
i. The consumer expectation test -- failure to
perform safely.
a. What is meant by consumer expectation.
A product is defective in design if it failed to perform
as safely as an ordinary consumer would expect (or have a
right to expect) when using the product in an intended or
reasonably foreseeable manner.
b. Plaintiff must prove the defect in the
product caused plaintiff’s injury.
Plaintiff must prove that the defective aspect of the
product caused the injury and must produce evidence that the
product failed to satisfy ordinary consumer expectations as to
safety.
c. Cannot apply test unless expectations of
proper product performance is within
jurors’ common knowledge.
The consumer expectation test can only be used in cases in
which jurors can properly evaluate a product’s safety design
based on every day experience of the product’s users.
The question becomes: did the circumstances of the
product’s failure properly permit a jury to conclude that the
product’s design performed below the legitimate, commonly
accepted minimum safety assumptions of its ordinary consumers?
d. Expert witness testimony is limited.
An expert witness is not allowed to testify as to what an
ordinary consumer would or should expect; however, an expert
can testify on the issue of whether the product failed as it
was marketed or to prove causation between the defect and the
injury.
e. Manufacturer’s knowledge of the risk of
harm irrelevant.
Evidence that a particular risk of harm was neither known
nor knowable to the scientific community at the time of the
manufacture or distribution of the product is not relevant to
show what the ordinary consumer reasonably expected in terms
of safety at the time of injury.
ii. Risk benefit test -- inherent dangers outweigh
benefits.
a. Risk of harm analysis.
Even if a product meets the consumer expectation test, it
may still be found to have a design defect if in light of the
relevant factors judged by hindsight, the risk of danger
inherent in the challenged design outweighs the benefit of the
design.
b. Factors that may determine whether benefit
outweighs the risks.
The relevant factors in determining whether the benefits
outweigh the inherent dangers of the design include, among
other things:
► The gravity of the danger imposed by the design;
► The likelihood that such danger would cause
injury;
► The mechanical feasibility of a safer
alternative design;
► The financial cost of an improved design;
► The adverse consequences to the product and
consumers that would result from an alternative
design.
c. Plaintiff does not need to establish
foreseeable alternative designs.
In a case involving a risk benefit analysis, plaintiff
need only establish causation, i.e., that a design feature of
the product was a proximate cause of plaintiff’s injury. The
plaintiff does not have to demonstrate the presence of
feasible alternative designs to shift the burden to the
defendant.
d. Shifting burden -- defendant must prove
benefits outweigh risks.
If the plaintiff can establish that a feature of the
product caused their injuries, the burden shifts to defendant
to establish that the benefits of the product design
outweighed the design risks.
J. Product Liability for Warning Defects.
i. Failure to provide an appropriate warning
creates a defect in and of itself.
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.
ii. Limitations on a manufacturer’s duty to warn.
A manufacturer’s duty to warn man be limited if the
dangers are generally known and recognized.
The defendant’s duty to warn only arises if the defendant
actually knew of the risks involved at the time of manufacture
or distribution or should have known based on scientific
knowledge available at the time.
iii. Warning can be defective even if
manufacturer unaware of the risk of the
exact injury which plaintiff received.
A plaintiff does not have to prove that the defendant knew
or should have known of the exact injury risks associated with
use of the product for there to be a finding of defective
design.
iv. “State of the art” evidence admissible.
In a warning defect case, “state of the art” evidence is
admissible since a key issue in the case will be what the
defendant knew or should have known regarding the risk of
harm.
Defendants are entitled to raise a “state of the art”
defense and to introduce evidence that the particular risk of
harm is neither known nor knowable by the application of
scientific knowledge available at the time of the manufacture
and/or distribution.
v. Reasonableness of defendant’s failure to warn
irrelevant.
The reasonableness of the defendant’s failure to warn is
immaterial in a strict liability case. This is so even where
the defendant’s conduct conforms to an industry-wide standard
or practice.
vi. Jury usually determines whether warning was
adequate.
In most defective warning cases, it is up to the jury to
determine whether or not a warning was adequate. Evidence
that some users heeded the warning does not establish that the
warning was adequate. A jury can still find that the warning
was defective.
vii. Situations in which a judge can determine a
warning was adequate as a matter of law.
There are some situations in which warnings will be
considered adequate as a matter of law, i.e., the finder of
fact, the jury, is foreclosed from determining that a warning
was inadequate. This includes cases in which:
► The plaintiff never bothered to read the
warning.
► The only claimed defect in the warning was that
it was written only in English. A warning in
English is often all that is required in a
strict liability defective warning case.
► Cases in which a drug manufacturer is prohibited
from warning of speculative risks by the Food
and Drug Administration.
viii. It is usually up to the manufacturer and
distributor to make sure consumers receive
their warnings.
Generally, the manufacturers and distributors are required
to make sure that the required risk warnings or safe use
instructions reach the ultimate consumer.
ix. Circumstances when manufacturers and
distributors can make a warning only to a middle
person.
There are certain products in which a technical expertise
is required to make the warning understandable to the consumer
or the product itself is too small to include meaningful
instructions in lay language.
In these situations, the manufacturer/distributor need
only provide adequate warnings and instructions to an
intermediary who can reasonably be expected to pass the
necessary information on to the ultimate consumers. Examples
where warnings to an intermediary may be sufficient include:
► A drug or medical device manufacturer who
fulfills its duty to warn about known or
knowable side effects and risks by providing
adequate warning to the physician.
► A manufacturer of ski bindings was found to have
fulfilled its duty to warn about the danger of
using the bindings with untreated thermoplastic
boots by giving adequate warning to the ski
rental shop.
► An airplane manufacturer is not required to
directly warn passengers about its plane’s load
capacity.
► A bulk sales manufacturer satisfies its duty to
advise of dangers by providing adequate warnings
to the distributor who subsequently packages,
labels and markets the product for consumer use.
K. Plaintiff must Establish Causation.
i. Substantial factor standard.
Under any of the defective product theories, plaintiff
must prove that the defect was a substantial factor in causing
the injury.
ii. Finding of defective product not enough.
Thus, even if plaintiff can establish a defect in a
product, the manufacturer will not be found responsible if the
same or similar harm would have occurred even without the
defect, for instance, when plaintiff’s own negligence is found
to be a “superceding” cause of his injury.
In one case, even though an emergency brake was found to
be defectively designed because it was inaccessible to the
driver, the driver could not claim a defective product where
evidence showed that the brake was non-functional due to lack
of maintenance.
L. The Product Misuse Defense.
Product misuse is a defense when the misuse is the actual
cause of plaintiff’s injury.
Defendant bears the burden of proving misuse as an
affirmative defense.
Misuse may be a defense against a plaintiff who
disregarded a warning label or used a product in a manner for
which it was not intended; however, the law requires the
manufacturer to foresee some degree of misuse and abuse of its
product, either by the user or by third parties, and to take
reasonable steps to minimize the harm.
M.
Comparative Negligence in a Product Liability Case.
If plaintiff can establish that the defective product was
a substantial factor in bringing about plaintiff’s injury, his
or her own comparative negligence will not eliminate his or
her claim but, rather, will reduce the recovery by the
proportion of his or her fault. For instance, if the
plaintiff is found to be 20% at fault for causing his or her
own injury, the verdict will be reduced by 20%.
N. Strict Liability Usually Limited to Manufacturers of
Mass Produced Products.
Strict liability is generally limited to those engaged in
the production and marketing of mass produced products.
However, a defendant engaged in the business of marketing and
selling products as part of its full time commercial activity
may not usually defend a strict product liability suit on the
ground that the particular product was designed to plaintiff’s
specifications.
O. Negligence in Defective Product Cases.
Although the standard for proving liability is more
difficult, plaintiff can always allege negligence in a product
liability case. However, to prevail in a negligence case, the
plaintiff must prove that the manufacturer/distributor owed
the plaintiff a duty and breached that duty by conduct falling
below the applicable reasonable standard of care for
manufacturing the product. Thus, the focus of the negligence
case becomes the reasonableness of the defendant’s conduct
whereas that is irrelevant in a strict liability case.
However, in certain cases, negligence may be a preferred
theory of recovery. For instance, while a strict product
liability action cannot be maintained where the defect in the
product is attributable to standards which have changed since
the product was placed on the market, a negligence action may
be maintained for the manufacturer’s failure to modify or
retrofit the product or to warn users of dangers that become
known after the product was manufactured.
Generally, plaintiffs are far better off proceeding on a
strict liability failure to warn theory than a claim based on
a negligent failure to warn.
Plaintiffs proceeding on a negligence theory must prove
that the defendant did not warn of a particular risk for
reasons falling below the acceptable standard of care, i.e.,
what a reasonably prudent manufacturer or distributor would
have known and warned about. However, under strict liability
the unreasonableness of the defendant’s failure to warn is
immaterial. Plaintiff need only prove that the defendant did
not adequately warn of a particular risk that was known or
knowable in light of generally prevailing scientific
knowledge.
P. The Financial Cost of Bringing a Product Liability
Case.
Product liability litigation can be extraordinarily
expensive. It is not unusual for case costs alone, without
attorneys fees, to be several hundred thousand dollars.
Therefore, except in cases in which there is a clear
manufacturing defect, it is rarely advisable to bring a
product liability action unless there is a very severe injury
or wrongful death or there have been a number of similar cases
against the product manufacturer.
Manufacturers will fight almost every defective product
case until the bitter end because of the tremendous
consequences of losing a case can have to its entire
operations.
Q. Importance of a Thorough Investigation in a Product
Liability Case.
It is critical that the product in question be preserved
in a state unaltered from its condition at the time of the
accident. Therefore, anybody contemplating a product
liability lawsuit should maintain the product or immediately
give it to an attorney for safekeeping.
This sometimes is problematic in cases against, for
instance, automobile manufacturers, when the plaintiff allows
his or her insurance company to total the vehicle and sell it
for storage. Further, sometimes the vehicle in question is
owned by the other driver in an accident. In those cases, it
is critical to contact an attorney immediately who will take
whatever steps possible to preserve the product in question.
Even if the product is unrecognizable, the remnants of the
product should be preserved.
Most attorneys hire an investigator at the very beginning
of the case to collect whatever evidence is available at the
accident scene and to attempt to take control of the product
itself. The defense in a product liability case will attempt
to establish that everything other than the defective product
caused plaintiff’s injury; therefore, evidence of the events
surrounding injury, as well as the product itself, become key
aspects of the investigation and later the litigation.
The history of the product must also be carefully
investigated. The product may have been altered after it left
the manufacturer’s hands and in most cases, this will absolve
the manufacturer from liability but may point to another
potential defendant.
R.
Design Changes and Subsequent Remedial Measures.
As part of an investigation or formal discovery once there
is a lawsuit, plaintiff should attempt to determine whether
any design alterations, changes in manufacturing materials,
new manufacturer warnings or other remedial measures were put
into effect since the actual product which injured the
plaintiff was produced.
Under California law, evidence that a manufacturer has
made repairs, improvements or design changes to a later model
of the product is admissible in a strict liability action to
prove that the product was defective prior to the change.
Further, a post accident warning released by the
manufacturer is admissible evidence of a preexisting product
defect for purposes of proving strict liability.
S. Has the Product Injured Other People.
Attorneys have the ability to conduct nationwide and
sometimes worldwide research to attempt to learn of other
accidents and lawsuits involved in the same product.
Obtaining this information is important for the following
reasons:
► The information uncovered by attorneys in prior
cases may prove to be invaluable for use in the
current case.
► The existence of similar accidents or injuries
is relevant to establish that the product was,
in fact, defective and to show that the
manufacturer had notice of the defective
condition.
► On the other hand, evidence showing the absence
of prior similar claims or injuries may be
introduced by the defendant manufacturer to
demonstrate a lack of knowledge -- so plaintiff
needs to learn of this potential problem in the
case.
► The defense will hire an expert who will testify
that the product is generally safe -- but
evidence of prior similar accidents will tend to
impeach this testimony.
T. Breach of Warranty in Product Liability Cases.
It is important that the plaintiff collect all of the
literature available involved in the product including
brochures, instructions, labels and advertising material.
Liability for intentional or negligent misrepresentation
may exist where statements in the product literature or
marketing brochures prove false.
Plaintiff can maintain an action for breach of express
warranty for “any affirmation of fact or promise made by the
seller to the buyer which relates to the goods and becomes
part of the basis of the bargain.”
U. Use of Experts in Product Liability Cases.
In almost every product liability case, plaintiff will
have to retain multiple experts to testify in order for the
jury to understand the case and for the plaintiff to win the
case. It is important that the plaintiff retain an expert
with expertise regarding the particular product. In addition,
the plaintiff may have to retain experts to explain other
factors involved in the accident. Frequently retained experts
include metallurgists, mechanical engineers, physiatrists,
biomechanical engineers and human factors experts.
V. Wrongful Death Damages in Product Liability Cases.
i. What is the “just damage” rule?
California Code of Civil Procedure section 377 entitles
product liability claimants to such damages “as under the
circumstances of the case may be just.”
ii. Can the heirs recover monetary damages?
However, California cases have further defined wrongful
death damages to include the value of future monetary
contributions from the decedent to the heirs and the value of
any personal service, advice or training that would have
probably been given. This is determined by projecting the
amount of money the decedent would have earned in the future
but for his or her death.
iii. What emotional distress damages are
allowed?
Damages also include compensation for loss of love,
companionship, comfort, affection, society, solace or moral
support or any loss of decedent’s physical assistance in the
operation or maintenance of the home.
iv. Are damages for grief recoverable?
The law does not allow recovery for grief or the pain
and suffering of the heirs. Instead, damages are focused on
the emotional losses suffered by the heirs.
v. Are damages for decedent’s pain and suffering
recoverable?
No. Damages for the decedent’s pain and suffering are not
recoverable in either a survival action or a wrongful death
case. The only exception to this rule is elder abuse cases in
which the estate is allowed to recover monetary damages for
the decedent’s pain and suffering.
vi. Are the survivors allowed to recover punitive
damages against the defendant?
Punitive damages are recoverable only in a survival
action. If the decedent died at the moment of impact,
punitive damages, which are damages meant to punish the
wrongdoer, are not recoverable.
W. What If the Decedent Was Partially at Fault for
Causing His or Her Own Death?
California is a comparative negligence State and,
therefore, the heirs are still allowed to bring the case;
however, their recovery will be reduced by the percentage of
fault that is assigned to the decedent. In other words, if
the heirs win a $3,000,000 award, but there is a determination
that the decedent was 50% negligent, their recovery will be
reduced to $1,500,000.
X. What Damages Are Recoverable in a Non-Fatal Defective
Product Case?
In a serious personal injury case, plaintiff can recover
for past medical expenses, future predicted medical expenses,
past wage loss, future predicted wage loss and for past and
future pain and suffering.
The medical expenses are determined by the testimony of
physicians or other health care providers. Frequently, an
economist or an expert in the industry determines the amount
of future wage loss; however, no expert can testify to the
value of pain and suffering.
Pain and suffering is typically the most significant
element of a plaintiff’s damage and it includes emotional
distress. Contrary to popular belief, there is no formula for
pain and suffering awards and it varies greatly from case to
case depending upon the location of the case, the seriousness
of the injury and how well the case is presented.
In product liability cases, evidence of prior similar
accidents and injuries will provide powerful evidence for
punitive damages. Further, any evidence that the defendant
knew that the product was dangerous or defective, yet did not
issue a recall, will also help plaintiff achieve a punitive
damage award.
Finally, evidence that the manufacturer knew that the
product was potentially dangerous, however decided not to make
the appropriate design changes in order to reduce the cost of
production and increase profits, will also increase
plaintiff’s chances of winning punitive damages in a product
liability case.
Y. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for
‘loss of consortium.” A spouse is allowed to recover damages
for the loss of society, comfort and care that result from the
injured spouse’s unavailability due to the injury. In order
to recover these damages, a spouse must be named as a party to
the lawsuit and must have been married to the plaintiff at the
time of the injury.
There are advantages and disadvantages to filing a loss of
consortium claim that should be discussed with an attorney
before filing.
Z. Punitive Damages.
Under California law, if a plaintiff can prove that the
conduct of the wrongdoer was fraudulent, malicious or
despicable, he or she is entitled to recover punitive damages
which are intended to punish the wrongdoer and provide an
example for the rest of society. The focus of this type of
case is generally on the wrongdoing of the defendant as
opposed to the injury to the plaintiff. The amount of
punitive damage will vary depending upon the heinousness of
the defendant’s misconduct and its economic status. The law
recognizes that large companies have to pay more money in
punitive damages to be adequately punished than small
companies or individuals. In motor vehicle cases, punitive
damages are most frequently awarded against drunk drivers.
AA. Time Limitations.
Generally speaking, a product liability case in tort must
be brought within one year of the date of the accident,
although the time period may be extended if plaintiff did not
discover the defective condition of the product until some
time after the date of the accident. Sometimes a longer time
period exists if a contract cause of action is brought, but
damages may be less. However, plaintiff has a duty to
affirmatively try to find the cause of his other injury.
Further, if the case also involves a claim against a
public entity, the claim must be brought within six months.
BB. Settlement.
Settlement of a defective product case can be extremely
difficult and challenging. To dissuade consumers from
bringing lawsuits, manufacturers will sometimes spend millions
of dollars in attorney fees and case costs to defend a case.
Sometimes manufacturers will believe they can win a case
by merely outspending the plaintiff attorney who usually has
to advance the costs of keeping up with the manufacturer.
Unless plaintiff can prove a manufacturing defect, such as
a chair falling apart because it was produced without a screw,
manufacturers will almost never settle cases without a
monumental battle.
Plaintiffs in defective product cases are wise to make an
early statutory demand for settlement -- not because the
manufacturer will pay it -- they won’t -- but because if a
plaintiff wins more than the demand at trial, under California
law, they will be able to have plaintiff’s substantial costs
paid by the defendant.
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