PRODUCT LIABILITY

1. Product Liability Law - what is it?
2. I've heard of claims of defective design and failure to warn -- what are they?
3. What kind of claims can be brought for product liability?
4. What is the negligence theory?
5. What is the breach of warranty theory?
6. What is the strict liability theory?
7. Does it affect my claim if I use the product in a way that was not intended by the manufacturer?
8. What damages can I recover in a product liability case?
9. What are non-economic damages?
10. What are economic damages?
11. I've heard the phrase punitive damages -- what are punitive damages and can I get them?
12. I think my case is a product liability case -- if I come to see you, what will you do?
13. What will the firm consider when deciding whether or not to take my case?
14. How do I know you will do a good job on my case?

1. Product liability law -- what is it?

Product liability law allows compensation for physical injuries and property damage resulting from defective and unreasonably dangerous products and from the failure of the manufacturer and/or the seller to warn the consumer of possible product danger.

2. I've heard of claims of defective design and failure to warn -- what are they?

Defective design is a claim based upon a product which, at the time it is sold, is in a defective condition or is unreasonably dangerous to the ordinary consumer. An example is a seller who designs a car seat which collapses, causing injury.

Failure to warn is a claim based upon a manufacturer failing to provide directions for the safe use of a product and/or failing to warn the consumer against dangers inherent in product misuse. An example is a manufacturer selling a pain killer without any warning that use of the medication has side effects upon people with heart defects.

3. What kind of claims can be brought for product liability?

There are three theories of liability in a product liability case. These are (1) negligence, (2) breach of warranty and (3) strict liability. Depending on the facts of each individual case, it is sometimes possible to pursue all three theories in one case.

4. What is the negligence theory?

The negligence theory requires a breach of duty owed by the manufacturer to the user, in light of the reasonably anticipated harm arising from all reasonably foreseeable uses of the product. The duty includes design, manufacture, assembling, instructing and warning. In the negligence case, the injured party must prove violation of a standard and reasonable care by the manufacturer in the design or manufacture of the product.

5. What is the breach of warranty theory?

The breach of warranty theory is based upon an expressed or implied representation about the product to the consumer. An example is a warranty that the product is fit for the ordinary purpose for which it is used or that the product is fit for a particular specific purpose. A breach of warranty claim generally means that the product performed below the represented or expected level of performance.

6. What is the strict liability theory?

The strict liability theory centers upon the legal principle that a person or company that sells a product in a defective condition that is unreasonably dangerous to the ordinary user may be liable for any resulting property damage or physical injuries. The defect may be in the product's design or manufacturing, in the product's container or packaging, or instruction or warning necessary for the product's safe use. The key issue in these cases is that the injured person is not required to prove the manufacturer or seller was negligent, just that the product was in a defective condition.

7. Does it affect my claim if I use the product in a way that was not intended by the manufacturer?

The question is whether or not the use of the product was a foreseeable misuse. Manufacturers are required to anticipate the possible uses of their products and are responsible for foreseeable misuse by the consumer. Foreseeable misuse includes foreseeable product alterations by the consumer. A manufacturer must also warn a consumer of dangers associated with product misuse. If your use of the product was not a foreseeable use, this may affect the strength of your claim.

8. What damages can I recover in a product liability case?

Generally, you should be reasonably compensated for all injuries and losses resulting from the occurrence in question. Damages are split into two general categories: non-economic (past and future) and economic (past and future).

9. What are non-economic damages?

Non-economic damages are those losses which cannot be quantified in a specific dollar amount (common examples are pain and suffering, mental anguish, inconvenience, physical impairments or disability, disfigurement and loss of enjoyment of life).

10. What are economic damages?

Economic damages include almost everything that can be replaced by payment. The category is very broad and will vary on a case by case basis. Economic damages can include, but are not limited to, reasonable expenses of medical care, hospitalization, treatment, loss of income, loss of earning capacity, reasonable value of services provided by family members, the cost of hiring others to perform normal household duties, and the loss of the injured person's services to his or her spouse. These losses can be projected into the future based on medical testimony regarding continuing disability, future needs, past earnings and many other relevant considerations.

11. I've heard the phrase punitive damages -- what are punitive damages and can I get them?

Punitive damages are not based upon the injury and damages of the plaintiff. They are awarded to punish the defendant and to deter others from engaging in such conduct. Before a punitive damage award can be made, the plaintiff must prove that the defendant acted in a wanton or intentional way, which includes the reckless disregard of a known danger to the plaintiff's health and safety. This must be proven by clear and convincing evidence. Punitive damages are extremely rare but available when appropriate.

12. I think my case is a product liability case-- if I come to see you, what will you do?

We will start with an initial interview to determine the facts as you know them and we will in turn, make a preliminary judgment about whether the case is one which falls within our expertise and interest. If it appears the case does fall within our expertise and is a case that we wish to pursue, an investigation will begin to collect all relevant records, including but not limited to, accident reports, product information, company brochures, product history and medical records. We will, in turn, ask you to sign release authorizations enabling us to obtain these records. Once obtained, we will then review and analyze the records. If we believe there is a strong possibility that a product was defective, the information is then submitted to appropriate experts for review, asking for their opinions on the issues on the defective nature of the product, damages and causation. This review can be quite expensive and time consuming (anywhere from $2,000 to $10,000+ per expert). The financial arrangements for these investigations are determined on a case by case basis. If, after consultation with experts, we believe we can satisfy our burden of proof, we will recommend that the case proceeds. We handle these cases on a contingent fee basis.

13. What will the firm consider when deciding whether or not to take my case?

We try to achieve a delicate balance between the probable result of a case, either by jury verdict at trial or by settlement, against the cost of obtaining that result. Product liability cases, by their very nature, are extremely time-consuming and require enormous law firm resources. A team will be established to handle your case. In addition to our own time and resources, product liability cases incur high expenses for experts, depositions, travel, research, trial exhibits and many other things. In all cases, we must determine if the matter is economically sensible for us to pursue. We do not handle cases where the time, resources and expenses will outweigh the probable result we will be able to obtain on behalf of our clients.

14. How do I know you will do a good job on my case?

We believe that our experience and results in previous product liability cases are crucial. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility speaks for this. However, you must realize that every case is different and no result can ever be guaranteed. We will work up and vigorously pursue your case. Our experienced attorneys and the support they receive from our paralegal and legal support staff allows our firm to give an unparalleled service to our clients. You will get an excellent team working on your case.