Articles Posted in Defective Products

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Psychological trauma can be devastating, whether it stems from being involved in a Florida car accident or witnessing a loved one suffer serious injuries themselves. Unfortunately, the legal field has been slow to come around to the idea that psychological trauma can have a lasting impact on those who suffer from it. However, with research in this area of medicine continuing to evolve, courts are beginning to accept the concept that witnessing a traumatic event can cause serious harm to an individual.

DefibrillatorThus, in 1995, the Florida Supreme Court clearly outlined the elements of a relatively new cause of action called negligent infliction of emotional distress (NIED). An NIED claim is based on the physical injuries sustained by witnessing a very traumatic event. In the 1995 case referenced above, the court set forth the following requirements for an NIED claim:

  1. The plaintiff must suffer some physical injury;
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Over the past decade, e-cigarette use has skyrocketed, with it being the most commonly consumed tobacco product among U.S. youth. The move toward e-cigarette use was due in large part to the fact that e-cigarettes were believed to be a safe alternative to smoking traditional cigarettes. Indeed, according to a report by the U.S. Surgeon General, a significant portion of e-cigarette users classify themselves as “former smokers” who picked up the habit again once e-cigarettes became prevalent.

E-CigaretteAccording to a recent study, however, e-cigarettes may pose a significant risk to users’ health. The study was conducted by a group of researchers at the New York University School of Medicine. The researchers exposed lab mice to a vapor that contained nicotine, similar in both content and amount to the vapor that is released by e-cigarettes.

At the conclusion of the study, researchers discovered that the DNA contained in the lungs, hearts, and bladders of the exposed lab mice suffered DNA damage. What’s more, the normal DNA repair processes were hindered. After conducting further analysis on human lung and bladder cells, the researchers confirmed that the vapor had the same halting effect on the DNA repair processes.

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When courts consider a product liability lawsuit, they will instruct the jury on one of two available tests to determine whether the plaintiff has established their case against the defendant manufacturer. In Florida, courts use the consumer-expectation test to evaluate a plaintiff’s Florida product liability claim.

SUVThe consumer-expectation test is fairly straightforward and requires jurors to ask themselves whether the product at issue performed as a consumer would expect it to perform under the circumstances. This test is generally preferred by product liability plaintiffs to the other predominant test, the risk-utility test.

Under a risk-utility analysis, jurors are asked whether the risks of the design chosen by the defendant manufacturer outweighed the utility, or benefit, the design provided. The risk-utility test also requires that the plaintiff establish that there was a reasonably safe alternative design that the defendant manufacturer could have used. Since this test places a burden on the plaintiff to establish that a reasonably safe alternative exists, this is generally a more difficult test for product liability plaintiffs to meet.

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When someone is injured due to a negligently designed or defectively manufactured product, they may be able to pursue compensation for their injuries from several parties, including the manufacturer, distributor, and retailer. These product liability lawsuits often are brought under a theory of strict liability, which does not require a plaintiff to prove that the defendant was negligent. However, it may benefit a plaintiff to establish that a defendant did know about the alleged defect because this may increase the damages that they are entitled to obtain.

Disc BrakesOne way that product liability plaintiffs can establish a defendant’s knowledge of an alleged defect is through “other similar incident” (OSI) evidence. OSI evidence, often presented through an expert witness, tells of other incidents in which the same product caused an injury or was defective in a manner which is similar to that which the plaintiff alleges. A recent case issued by a federal appellate court discusses OSI evidence and when it may be appropriate.

The Facts of the Case

The plaintiffs were stopped at a red light at the end of a highway off-ramp when a 1996 Toyota Camry traveling at 75 miles per hour rear-ended them. At the time, the driver explained that he tried to brake, but the car instead began to accelerate. It was not until several years later that Toyota announced a recall of 1996 Toyota Camrys, based on several other reports that the vehicles were randomly accelerating and could not be stopped by applying the brakes.

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When a party files a personal injury lawsuit against a defendant, the case proceeds through several stages before ultimately going to trial. One of the most important and most contentious phases in a personal injury lawsuit is the pre-trial discovery phase.

TireDuring the pre-trial discovery phase, parties make requests for certain evidence from the opposing party. A party can only request relevant evidence or evidence that may give rise to the discovery of additional relevant evidence. Once a party makes a request for certain evidence, the judge will rule on the request. If the judge orders that the requested material be released, the party in possession of the evidence must comply. A failure to comply can result in sanctions.

Sanctions for violating pre-trial discovery vary, depending on the type and severity of the violation. It is not unheard of for a court to dismiss a plaintiff’s case if he or she withholds evidence from the defense. If a defendant withholds evidence, the court can prevent the introduction of other evidence or issue a fine. However, any fine imposed can only be for the amount of money the plaintiff had to expend due to the defendant’s bad faith. A recent U.S. Supreme Court case illustrates this principle.

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The plaintiff in a wrongful death case that had been filed after the death of her husband received some good news last month when an appellate court affirmed a district court’s ruling not to bar the plaintiff from introducing certain evidence at trial. Because of the recent appellate ruling, the case will be remanded to the district court to proceed toward a settlement or trial.

TireThe Plaintiff’s Husband Dies from a Tragic Accident

The plaintiff in the case of Cooper v. Koch is a woman whose husband died in the intensive care unit of a hospital from injuries he suffered about three months before in a single-vehicle accident that was allegedly caused by a catastrophic tread separation involving tires made by the defendant. The vehicle driven by the plaintiff’s husband was totaled. It was towed from the scene of the accident by a towing company that was storing the vehicle for a daily fee. The plaintiff agreed to give the vehicle to a scrapyard after removing the blown tire to keep for evidence in the event of legal action against the defendant. The three other tires and remaining parts of the vehicle were broken up and scrapped or destroyed. At the time, the plaintiff had not filed a case against the defendant.

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The United States Court of Appeals for the Seventh Circuit recently published an opinion partially reversing a district court’s ruling in favor of the defendant in a product liability lawsuit filed by a man who was seriously burned in a fire that ignited while he was using a cleaning product manufactured by the defendant. The plaintiff sued the defendant under several theories of liability, including failure to warn as well as strict product liability and negligence.

The district court entered summary judgment in favor of the defendant on all of the plaintiff’s claims, but the Court of Appeals found that the plaintiff’s claims surrounding the allegedly defective design of the defendant’s product should not have been resolved without a trial. As a result of the recent appellate ruling, the plaintiff’s case will be remanded to the federal district court for further proceedings that may ultimately result in an award of damages for the plaintiff.

BasementThe Plaintiff Is Seriously Burned While Cleaning His Basement Floor with the Defendant’s Product

The plaintiff in the case of Suarez v. W.M. Barr & Co. is a man who attempted to clean paint off the floor of his basement with Goof Off, a cleaning product manufactured by the defendant. The main ingredient in the product is acetone, which is a highly flammable chemical that evaporates at room temperature. According to the facts discussed in the appellate opinion, the plaintiff read the warnings on the product label before he poured the product on the floor of his basement floor and started scrubbing the area with a brush in accordance with the instructions. Although the exact cause of ignition was in dispute, a fire broke out and resulted in serious burns to the plaintiff’s head, face, neck, and hands. After suffering the injuries, the plaintiff sued the defendant in federal court, alleging that the warnings on the product label were inadequate and that the product itself was unreasonably dangerous.

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The Supreme Court of Missouri recently released an opinion reversing a trial court’s preliminary ruling to grant a personal injury defendant’s request to further question an expert witness. The expert had been formerly proposed by the plaintiff as an expert witness, but the plaintiff later “de-endorsed” the expert witness weeks into the proceedings without disclosing a report.

Golf CartThe defendant requested a copy of the report and to depose the expert, while the plaintiff claimed that the expert report was protected by the “work product doctrine,” which protects materials prepared by or for an attorney from pretrial discovery by the opposing side. Although the opinion does not explicitly reference the expected opinion of the expert or what his conclusions may be, the plaintiff’s attempts to remove the expert from the case suggested that his conclusions were not favorable to the plaintiff.

With the most recent ruling, the defendant will be prohibited from deposing the witness or accessing any report he may have prepared, and the case will proceed toward trial.

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A Missouri jury recently found that the manufacturer of a baby powder product containing talc and marketed for personal hygiene was liable for negligence and product liability after the plaintiff developed a case of ovarian cancer as a result of using the product as it was marketed. According to a news report discussing the verdict, the woman was awarded over $7 million from the defendant Johnson & Johnson, a major manufacturer and marketer of baby powder products containing talc. Similar claims have shown that manufacturers have allegedly known about the increase in cancer risk for women who use talc products on their genital area, but they have continued to market the product despite the evidence that such use may be dangerous.

CourtroomAbout 2,000 Cases Alleging a Link Between Talc and Ovarian Cancer Have Been Filed

According to the report, over 2,000 cases have been filed in courts nationwide against the manufacturers of baby powders and other hygiene products containing talc. Research cited in the report notes that there is a significant link between using talc products for feminine hygiene and the increased risk of developing cancer. Courts across the country have addressed the cases differently, with some judges throwing the claims out and others allowing the cases to go to the jury. Similar cases alleging ovarian cancer development as a result of talc use have resulted in verdicts of up to $127 million.

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The Supreme Court of the State of Alabama recently published an opinion that affirmed a lower court’s ruling in favor of the defendants regarding a wrongful death claim filed against the manufacturer of a smoke detector that failed to prevent the death of the plaintiffs’ daughter in a 2011 mobile home fire. The high court affirmed both the district court’s judgment to prevent some of the plaintiffs’ claims from being considered by the jury at trial, as well as the jury’s verdict, which rejected the plaintiffs’ remaining claims made at trial. Based on the most recent appellate rulings, the plaintiffs will not be compensated for the expenses and loss related to the tragic death of their daughter.

FireThe Plaintiffs’ Child Dies in a Tragic 2011 Fire

The plaintiffs in the case of Hosford v. BRK Brands, Inc. were the parents of a young girl who died in a fire that occurred in their mobile home on the night of May 20, 2011. The defendant manufactured two smoke alarms that were installed in the plaintiffs’ home prior to the fire. According to the facts discussed in the recent appellate opinion, the plaintiffs filed several claims against the defendant after their child’s death, alleging that the smoke alarms were defectively designed and failed to give the family adequate warning to safely escape and save their daughter’s life. Although the plaintiffs agreed that at least one of the smoke alarms sounded an alarm after the fire broke out, they claimed that the defendant’s product did not sound the alarm as soon as it should have, preventing them from rescuing their daughter before she perished in the fire.

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