Protecting Against Liability
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Product Liability

This class has been put together for all of you so that you may better understand product liability.  If you have any further questions on these issues, please contact an attorney or your insurance guy.

This information is provided to you by David Austin (attorney at law)

If you've been injured by a product — anything from matches to an airplane — you may have a liability case against the product's manufacturers and distributors. Whether your case is worth pursuing depends on how you were injured, whether you contributed to that injury, and the laws in your state.

The Basics

There are generally three types of product liability cases: negligence, strict liability and breach of warranty. Like most laws, these vary by state and not all provisions apply in every state, so you need to talk with a lawyer to figure out what's most appropriate for your situation.

Negligence

As the name suggests, negligence cases require showing that carelessness caused your injury. First, you have to prove there was a duty to sell a safe product. That part's not too difficult, since all individuals and companies that make and distribute consumer products are obliged to prevent injuries resulting from their products. If they sold you something, then they probably have this duty.

Next, you need to show that the defendant somehow breached that duty. Did they know, or should they have known, that the product was defective? If you can prove that, then you have your “breach of warranty.”

You also need to show that you've been damaged. You can't bring a claim without an injury. Merely pointing out the defect in a product you bought and saying it might hurt someone is not enough.

Finally, you have to prove that the defect, and not some unrelated illness or accident, is what caused you damage.

Strict Product Liability

If you can prove that a product is “unreasonably dangerous” — that it has a design or manufacturing defect — then you may be able to establish that the defendant is “strictly liable.” Unlike negligence cases, you may not have to prove the manufacturer knew about the danger, because even if they didn't, they should have. (One of the main purposes of this provision is to hold manufacturers accountable for developing safe products). You still, however, have to prove that the product caused your damages.

Breach of Warranty

When you're suing for breach of warranty, you have to prove that the manufacturer or distributor broke a written or implied promise that the goods are free from defects. Then, of course, you need to show that breach caused your injury.

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. Prove that the defect was caused by the defendant and that the defect then caused your injuries and you're on your way to using this approach.
  • 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. You'll have to show that the product's dangers outweigh its usefulness.
  • 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.

When you pursue a product liability case, there are many types of damages you can recover. Compensation varies from state to state, but generally you can be compensated for the cost of medical care (present and future), lost wages, physical pain and suffering, and mental suffering. In some states you can also pursue punitive damages, which punish the defendant and prevent similar deeds from occurring.

Getting Help

Pursuing a product liability case is complex and expensive. Lawyers in this field often specialize in certain areas, such as prescription drug liability cases, automobile cases or toxic torts (injuries resulting from toxins such as asbestos or diesel fuel). If you can find someone you like who specializes in your type of case, you'll obviously benefit.

Some lawyers may also be engineers or doctors. While these additional areas of expertise may help, they're not required. Above all, you should look for an experienced lawyer who has handled product liability cases.

Most product liability lawyers will take these cases on a contingency fee, meaning they get no legal fee until the case settles or a verdict is reached. This fee depends on the complexity of the case and where you're located, among other things. Some lawyers require a retainer up front to pay for costs associated with the case.

It may be difficult for you to find a lawyer if your case is unusual. Be prepared to meet with or talk with several lawyers about your case.

What's Next

You can pursue a product liability claim as an individual or sometimes as part of a class action lawsuit.

Class actions, in which a few people represent dozens or hundreds of others who've been similarly injured, are designed to compensate large numbers of people. They're most often effective when the amount of damages for each person is very low, or at least low enough that one person would not pursue a case alone. This type of lawsuit isn't commonly used for people with serious or unusual injuries that can't be lumped into one category.

Increasingly, consumers are using class actions to push for medical monitoring of new drugs with the aim of developing information that will benefit the group affected. For example, many class actions were filed around the country over the diet drugs fen-phen and Redux to provide a diagnostic test to everyone who had taken the diet drugs.

If you've sustained an injury because of a dangerous product, then you probably want to pursue an individual lawsuit.

You and your lawyer would then investigate your case and assemble evidence in preparation for trial. You'll be required to reveal your medical records and history and produce any documents or information that relate to your case or your injuries. It will feel invasive and often burdensome, but the defense has the right to review a lot of material that won't even make it into trial.

What you have to release depends on many things. If you're alleging psychological injuries, then be prepared to reveal any prior counseling of psychological treatment. If your injuries are only “physical,” then you may not have to reveal prior psychological treatment. What happens in your particular case will depend on the rules and laws that are involved in your case.

Many product liability cases settle before they ever get to trial. But those that do are some of the more difficult and expensive to pursue because manufacturers will do everything they can to avoid having their product branded as dangerous.

David Austin is an attorney with the New Hampshire firm of Burke & Eisner . He represents and helps personal injury, malpractice and product liability victims around the country.

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