Articles Posted in Defective Products

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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The Second Circuit Court of Appeals recently released an opinion that will allow several tort claims against General Motors related to a faulty ignition switch to proceed. According to a New York Times article discussing the recent opinion, the ruling stands in the face of a 2009 bankruptcy court ruling, which prevented claims against GM from being asserted against the company that was created in the debt restructuring process. The appellate court ruled that the broad bar on future claims against the successor organization to the “old GM” did not apply to claims based on the defective ignition switches that were concealed by the previous company in anticipation of their bankruptcy restructuring.

Car KeyDefective Ignition Switches in Millions of GM Vehicles Have Endangered the Public

The product liability lawsuits that have been filed against GM over the defective ignition switches allege that the manufacturer knowingly included the defective and dangerous equipment on their vehicles for years after they discovered the problem, and they even attempted to conceal evidence of their knowledge of the faulty equipment. The recall, which has now been expanded to include over 11 million vehicles in several General Motors make and model lines, is related to an issue with the ignition switch on the vehicles.

The ignitions on the affected vehicles may unexpectedly switch into the “off” position, deactivating important safety features on the vehicles, including power steering and airbags. The defective part has been linked to at least 124 deaths and 275 injuries. General Motors has already paid over $2 billion in criminal and civil penalties and settlements related to the issue, and the company expects to pay more in settlements as the plaintiff class expands with additional recalls.

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The Eighth Circuit United States Court of Appeals recently released an opinion affirming a jury verdict in favor of a defendant after a trial was held on the plaintiffs’ allegations surrounding the death of their 23-month-old son. The boy drowned in a pond after he climbed from his crib in the middle of the night and left his home, getting past a doorknob cover that was intended to keep the child from using the door. On appeal, the plaintiffs argued that the district court was mistaken in permitting testimony that the boy’s mother failed to secure a secondary chain lock on the door on the night of the boy’s death.

DoorknobThe Tragic Drowning of the Plaintiffs’ Child

The plaintiffs in the case of Coterel v. Dorel Juvenile Group were the parents of a boy who died after he wandered from the family home in the middle of the night and drowned in a nearby pond. The boy’s parents awoke in the morning to find the front door to their home ajar and the boy missing from his crib. Minutes later, the boy’s father found him floating unresponsive in the pond, approximately 50 yards from the home. The defendant in the case was the manufacturer of a doorknob cover that the couple had received as a gift and had been using to keep the child from operating the front door. After the boy’s death, the plaintiffs filed a wrongful death lawsuit against the manufacturer, alleging that the doorbell cover was a dangerous product that failed to work as intended and that it was negligently manufactured and marketed by the defendant.

The Jury Found the Defendant Was Not at Fault at Trial

The plaintiffs’ product liability and negligence claims went to trial, and the jury returned a verdict in favor of the defendant. During trial, evidence was introduced over the plaintiffs’ objection that the parents had previously witnessed their son defeating the doorknob cover, and they installed a chain lock on the front door after noticing this. The defendant argued at trial that the plaintiffs knew the doorknob cover wouldn’t keep the child from leaving the home, and they were negligent by failing to use the additional lock. The jury was not required to explain their decision on the verdict form and indicated only that the defendant should not be liable for the boy’s death.

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