Articles Posted in Defective Products

A leading market research company report indicates that global toy sales are a steadily increasing multi-billion-dollar industry. Every year, manufacturers release nearly 5,000 new toys into the consumer stream. Many of these products are fast-tracked with growing competition, leading to shoddily constructed and potentially dangerous toys. If a child suffers injuries because of a defective toy, their family may recover under Florida’s product liability laws.

The United States Consumer Product Safety Commission (CPSC) reports that over 200,000 children receive treatment at hospital emergency rooms because of injuries related to defective toys. In some cases, the child misuses the toy; however, many of these injuries are caused by the toy’s dangerous propensity. According to the most recent data published by the CPSC from 2018, there were 17 toy-related fatalities among children under 15-years-old. The majority of fatalities were related to non-motorized scooters. Other fatalities were related to motor vehicle involvement and drownings. The next set of toys involved were rubber balls, stuffed toys and doll accessories, and water toys. Other notable tragic deaths were related to balloon choking, plastic toy food, water guns, and toy dart guns. The report also shows there were almost 230,000 toy-related injuries for all ages treated in U.S. emergency rooms. Toy-related injuries can range in severity; however, many accidents lead to brain injuries, fractures, burns and puncture wounds. In some cases, these injuries can result in life-long disability and pain.

In light of this harrowing data and in conjunction with the influx of toys, many children received over the holidays, and during the lock down, parents should examine toys for potential hazards. If a child suffers an injury because of a defective product, Florida permits three main types of product liability lawsuits: manufacturing defect claims, design defect claims, and failure to warn claims.

The Home Depot recently issued a voluntary recall of an indoor/outdoor fan sold in their retail stores and online. The Consumer Product Safety Commission (CPSC), reported that they received nearly 50 reports of blades detaching from the fan. Those that have suffered injuries from a defective fan may have a Florida product liability claim. The Home Depot voluntarily announced the recall, stating that they stopped selling the products when they discovered the issue. It is unclear whether the detaching blade hit or injured individuals, but there have been reports that the blades caused property damage. According to the CPSC, about 182,000 fans were sold in the United States, and close to 9,000 were sold in Canada.

In Florida, manufacturers have a legal duty to ensure that their products are safe for consumers and those that use their products. When a person suffers an injury, or dies because of a defective product, they file a claim based on the company’s strict liability or negligence. Florida product liability claims require that a plaintiff establishes that they suffered an actual injury or monetary loss because of the product. These claims are generally based on the product’s defective design, manufacturer, or the fact that the manufacturer knew or should have known the risks and failed to warn users.

After establishing the injury and theory, plaintiffs must demonstrate that the alleged defect proximately caused their injuries and losses. Defendants often argue that they should not be liable because the plaintiff failed to use the product appropriately. As such, plaintiffs must establish that they used the product in a way that the manufacturer intended or should have expected a reasonable person to use it.

Individuals who wish to pursue damages after suffering injuries because of a defective product must be able to establish that the product was defectively designed, manufactured, or lacked appropriate instructions and warnings. Under Florida law, consumers may proceed under a negligence or strict liability theory. Although claims may involve both theories, strict liability governs Florida product liability lawsuits in most cases. Strict liability theory provides that a seller, distributor, manufacturer, or any other entity involved in distributing a product, may be liable to anyone who suffers injuries because of the product. Under this theory, defendants may still be liable, even if they engaged in all possible steps to ensure that the defect did not occur.

Product liability claimants must be able to prove that the product was defective or unreasonably dangerous, the product injured the plaintiff, and the product’s inherent design or defect was the direct cause of the claimant’s injuries. The crux of product liability cases rest in whether a plaintiff can present enough compelling evidence to show that the product was defective or unreasonably dangerous to a reasonable, ordinary consumer. Evidence of a defective product may be the product itself. However, in some cases, the product may no longer exist. This may occur if it was a consumable product, such as a prescription medication or supplement, or if the consumer did not own the product. In either case, expert witnesses provide plaintiffs with critical assistance in explaining complex subjects to juries.

Expert witnesses can effectively communicate complex technical and scientific concepts to juries. These witnesses can testify on an injury victim’s behalf and convey convoluted theories in a clear and manageable way to the trier of fact. Some common expert witnesses are medical experts, engineers, rehabilitation specialists, and economists. Expert witness testimony is often the most compelling portion of a plaintiff’s case.

Florida consumers rightfully expect vehicle manufacturers and dealerships to maintain integrity in their dealings and ensure that vehicles are free from defects. However, despite due diligence, in some cases, motorists end up with a defective car. These vehicles are commonly referred to as “lemons.” Fortunately, federal and state laws protect consumers in these situations.

Florida’s “Motor Vehicle Warranty Enforcement Act,” or “Lemon Law,” protects customers who purchase new or nearly new vehicles. In some instances, the law protects consumers who lease vehicles or purchase a defective recreational vehicle. The law applies to vehicles purchased for personal, family, or household use. It extends to anyone to whom the vehicle is transferred for the same purposes during the statutory period. The statutory period is generally 24 months following delivery to the consumer. The law covers “nonconformities” to the vehicle, which substantially impairs the vehicle’s use, value, or safety. However, the law does not apply when the consumer’s negligence, abuse, or unauthorized alteration caused the defect.

Under the law, manufacturers that cannot adequately repair a defect, must repurchase or replace a vehicle. The law permits the manufacturer a reasonable number of attempts to repair the vehicle before mandating repurchase or repair. Generally, a manufacturer will have to repurchase after they unsuccessfully resolved the problems three or more times or if the car is in a repair shop for more than 30 days.

The United States Court of Appeals for the Eleventh Circuit recently issued an opinion in a Florida product liability lawsuit. The case arose after a meat-market manager suffered injuries while using a meat saw. The plaintiff filed a lawsuit against the saw’s manufacturer, arguing that the meat saw was negligently designed. The court instructed the jury that the plaintiff needed to establish that the meat saw was not designed with “reasonable care” and was not “reasonably safe” for foreseeable use. A jury found in favor of the plaintiff, and the defendant appealed.

In addition to other issues, the defendant appealed the jury’s ruling arguing that the court should not have provided the jury a general negligence instruction. Rather, the defendant argued that the court should have instructed the jury on Florida’s “risk utility” test or “consumer expectations” test.

Under Florida law, the risk utility test addresses and balances six considerations to determine whether a product’s risk outweighs its utility to consumers. If it does, the product is negligently designed. The six factors are: the likelihood of potential injury balanced against its utility, the availability of safer products that meet the same need, the obviousness of the danger and the public’s expectation of that danger, the adequacy of instructions and warning, and the ability to minimize the danger without impairing the product or making it economically unfeasible. On the other hand, the consumer expectations test focuses on if the product was more dangerous than an ordinary consumer would anticipate.

Florida law concerning design defect claims is continuously evolving, and courts have not reached a consensus on which test is appropriate in these matters. In most cases, courts use one of three different product liability tests: the consumer expectations test, the risk-utility test, or the reasonable alternative design test. In a recent opinion, a Florida appellate court considered whether the consumer expectations test or risk-utility test was appropriate in a defective complex medical device lawsuit. The case is based on a wrongful death lawsuit that was filed against several defendants, including a hospital, its surgical team, and the manufacturer of the medical device. The decedent’s estate filed the lawsuit after the victim died while undergoing lung surgery. The plaintiff’s lawsuit against the device manufacturer claimed that the manufacturer was liable for the product’s design defect, failure to warn, and negligence.

After settling with the health care providers, the claim against the manufacturer proceeded to trial. At trial, the plaintiff submitted a jury instruction that stated that the jury could find the defendant liable for an unreasonably dangerous product if the plaintiff established the consumer expectations test or risk-utility test. Florida law provides that the consumer expectation imposes liability if the plaintiff can prove that the product failed to perform as safely as a consumer would expect, if the product is used in a reasonably foreseeable manner. In contrast, the risk-utility test imposes liability if the plaintiff establishes that the risk of danger outweighs the benefit. The defendant proposed the risk-utility test, and the trial court proceeded with that jury instruction. On appeal, the plaintiff claimed that the judge overseeing the trial should have provided the jury with a consumer-expectations instruction, and the judge’s failure to do so required a new trial.

The plaintiff argued that previous Florida courts adopted the consumer expectations test in Aubin v. Union Carbide Corp. In this case, the appellate court distinguished the case at hand with the previous ruling, primarily finding that this case involved a medical product that is “too complex” for the consumer expectation test. Further, the prior court found that plaintiffs may opt to proceed with a consumer expectations test for design defect claims, but they did not address whether a medical professional may be considered an “ordinary consumer.” Moreover, even if a portion of the consumer expectations test could apply, the jury instruction would need to address a medical professional’s reasonable expectation. Ultimately, the court determined that the plaintiff’s requested instruction would have only confused the jury, and providing such an instruction would have been a misstatement of the law. As a result, the plaintiff’s appeal was dismissed.

Visiting a coffee shop and purchasing a hot beverage is a delight for many people. However, when the coffee cup is defective, it can lead to serious injuries. Those injured by defective or dangerous products may be able to obtain compensation for their injuries through a Florida product liability claim. In a recent case, a state appellate court was tasked with determining whether a coffee shop could be held liable for a plaintiff’s injuries. The case involved a plaintiff who was injured after she purchased a cup of hot tea in a defective cup and accidentally spilled it onto herself. Ultimately, the court determined that the hot tea and defective cup were too remotely connected to the plaintiff’s injuries, and thus, the coffee retailer could not be held liable.

According to the court’s opinion, the plaintiff ordered a cup of hot tea from a local coffee shop. The plaintiff picked up her cup of tea at the counter and noticed the beverage was “double-cupped,” but did not have a sleeve around the outside of the cup. After grabbing her tea, she removed the lid and tried to sit down at a nearby table when the chair pushed forward unexpectedly. She grabbed onto the table to maintain her balance, which caused the drink to spill onto her legs, and she suffered second-degree burns. After the accident, she filed a products liability suit against the coffee shop.

Under a products liability claim, a plaintiff alleges the defective product caused their injuries. The manufacturer, distributor, or retailer can be held liable if a defect in their product causes an injury when the product is being used in a foreseeable way. A product can also be defective if it fails to include a warning about its known risks. To succeed in their product liability claim, a plaintiff must show the defective product, or the lack of warning, was the ultimate cause of their injuries.

Florida product liability laws allow individuals and their families to pursue civil actions to recover damages for injuries they suffered because of a defective product. Product liability claims generally stem from design defects, manufacturing defects, or marketing defects. In these cases, there may be multiple responsible parties. Liability often hinges on the type of defect and the injury the victim suffers. Individuals who pursue these claims must establish that they used the product in the manner that it was intended, and that they followed the product’s directions and contemplated the warnings and risks associated with the product’s use.

In many cases, liable parties will defend against a claim by arguing that they issued a recall, and therefore they should not be responsible for the victim’s injuries. However, a recall does not automatically protect a manufacturer, wholesaler, distributor, or retailer. Injury victims should contact an attorney to discuss how to overcome these assertions.

Generally, federal agencies do not recall products; instead, they urge companies to recall dangerous products and make announcements after the company notifies them of a recall. In some cases, companies refuse to recall dangerous products. When that occurs, federal agencies can commence legal proceedings against the company. Typically, the Food and Drug Administration (FDA) announces medical and food-related recalls, the United States Department of Agriculture and Food Safety and Inspection Service (FSIS) announces meat and poultry recalls, and the United States Consumer Product Safety Commission (CPSC) handles consumer product recalls. In some cases, the recall occurs after the company faces a civil lawsuit for injuries related to a defective product. In other situations, the company issues a recall as soon as they discover a defect.

When someone suffers an injury because of a defective product, they may be able to recover damages under Florida’s product liability laws. Product liability lawsuits are claims brought against a manufacturer or seller for putting a defective product into the stream of commerce. In Florida, most product liability claims stem from design defects, manufacturing defects, and marketing defects. The majority of these cases encompass the doctrine of strict liability. Although there are many similarities between ordinary negligence clams and strict liability, the difference is critical. Lawsuits involving strict liability claims do not typically require that the plaintiff provide proof of the defendant’s failure to exercise reasonable care. Instead, liability is imposed based on the defendant’s capacity as a manufacturer, retailer, or seller.

Issues often arise when the defendant is an intermediary or sells products from a third-party, such as is the case with Amazon. Historically, Amazon has avoided liability by maintaining its position as a mere conduit between buyers and sellers. The major online marketplace has relied on the Communications Decency Act, which provides legal protections for online entities for content users post on their platforms. However, courts across the United States have started to examine whether this broad-ranging protection is appropriate.

In fact, a state appellate court recently issued a noteworthy opinion in a product liability lawsuit against Amazon. In that case, the plaintiff purchased a computer battery on Amazon, by a seller using a fictitious name on the website. Amazon charged the plaintiff, acquired the battery from one of their warehouses, prepared it for shipment in Amazon packaging, and mailed it to the plaintiff. The plaintiff suffered severe burns when the battery exploded a few months later.

Recently, the U.S. Food and Drug Administration (FDA) announced additional products to their ever-growing list of recalled hand sanitizers. According to a recent new report, the FDA explained that the majority of the recalled products lacked enough alcohol to adequately kills germs, or the products contained potentially deadly levels of wood alcohol. This information is particularly harrowing as there has been a record number of hand sanitizer sales in Florida because of the COVID-19 pandemic. These defective products can cause serious harm because of their ineffectiveness or exposure to potentially deadly ingredients.

As COVID-19 began to wreak havoc throughout the world, the Centers for Disease Control (CDC) advised the public to use an alcohol-based hand sanitizer and frequently wash hands. These measures should help reduce the number of germs that a person carries and transmits. In many cases, individuals use hand sanitizer at higher rates because it is a convenient option. This increased use only heightens the likelihood that individuals may experience the dangers of using these products.

The majority of effective hand sanitizers are comprised of ethyl alcohol; however, the recalled products contain methanol. Methanol is a type of wood alcohol that is regularly used to create pesticides, solvents, and fuel. This alcohol is typically toxic to humans and can be poisonous if consumed. Some products state that their hand sanitizers contain methanol; however, many others are mis-marked as containing ethyl alcohol. This mistake further complicates the recall as many consumers may not know if their product contains the dangerous ingredient.