Those who make, sell, or lease goods can be held liable for physical harm or property damage caused by those goods to consumer, user, or bystander. Claims for liability may be based on theories of warranty, negligence, misrepresentation, and strict liability.
- Negligence: If a manufacture fails to exercise due care in designing a product, selecting the materials, using the appropriate production process, assembling the product, and placing adequate warnings on the label informing the user of dangers of which an ordinary person that might not be aware, then the manufacturer may be sued for negligence.
- Strict product liability: The law imposes strict liability as a matter of public policy, based on the assumptions that: (1) consumers should be protected against unsafe products, (2) manufacturers and distributors should not escape liability for faulty products simply because they are not in privity of contract with the ultimate user of those products, and (3) manufacturers, sellers, and lessors of products are generally in a better position than consumers to bear the cost associated with injuries caused by their products. Strict liability applies if: (1) the product is in a defective condition when sold, (2) the product is unreasonably dangerous (dangerous beyond the expectation of the ordinary consumer or manufacturing a less dangerous alternative was economically feasible) because of its defective condition and, (3) physical harm to person or property is proximately caused by the consumption of the product.
- Market-share liability: when an injured party cannot prove which of many distributors of a harmful product supplied the particular product that caused the injury then all firms that manufactured and distributed the product during the period in question are held liable for the injuries in proportion to the firm’s respective shares of the market for that product during the period in question.
- Defects: A “manufacturing defect” occurs when the production of a product departs from its design specifications resulting in a physical flaw, damage or incorrect assembly, typically because the manufacturer failed to assemble, test, or adequately check the quality of production. A “design defect” occurs when the design of a product creates an unreasonable risk to the user, and the foreseeable risks of harm posed by the product could have been reduced or avoided by adoption of a reasonable alternative design by the seller or other distributor.
- Inadequate warnings: a product will also be considered defective when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor and the omission of such instructions or warnings renders the product not reasonably safe.
- Medical implants: including hip or knee replacements as well as hernia and vaginal meshes can be defective. It is important to preserve the chain of custody and sterilization of your implant device after a revisionary surgery, and to gather x-rays and surgical notes. There may also be a need for multiple experts regarding one implant, e.g., to exam each of the implant’s materials such as polymers and metals. Expert testimony may be necessary to establish that the defect was not in the way it was implanted or discretion employed by the surgeon.
To schedule an appointment to discuss your injury from an unsafe product or implant, please call (734) 475-4659.x