Articles Posted in Defective Products

As COVID-19 continues to spread quickly throughout Florida, the state’s nursing homes have witnessed unprecedented illnesses related to the virus. During this time, many nursing homes have failed to adequately protect their staff and residents from the viruses’ toll. Although some of the spread is uncontrollable, the Centers for Disease Control (CDC) provides regulations and guidance on how these facilities can manage and stop outbreaks. Despite a broad range of immunity that nursing homes and manufacturers of personal protective equipment (PPE) are given during this time, individuals who have suffered because of the negligence of these entities should contact a Florida product liability and nursing home negligence attorney to discuss their rights and remedies.

Recently, a national news source reported on a controversy over inadequate PPE that the Federal Emergency Management Agency (FEMA) sent to nursing homes to battle the COVID-19 crisis. Nursing homes and long-term assisted living facilities were included as benefactors of an effort to provide healthcare workers with PPE. However, when the facilities received the shipments, they were shocked to discover that the boxes included loose gloves in unmarked plastic bags, outdated surgical masks, and gowns without openings. Health officials advised these facilities to refrain from using the equipment as they are unaware of whether they have been compromised.

FEMA responded to the claims and stated that there were only a few shipments with outdated and ineffective equipment. Additionally, they claimed that the gear does meet federal standards but agreed to contact the private contractor and asked them to provide replacements. The PPE problem highlights the many issues that these facilities and their residents are facing with sufficiently managing the health and safety of their residents.

Under Florida law, dentists and dental surgeons may be liable for medical malpractice if their negligence causes disfigurement, damage, or harm to their patients. Individuals who suffer injuries because of their dentist’s negligence must meet specific requirements to recover compensation. Generally, there are four elements to a Florida dental malpractice lawsuit, the duty of care the dentist owed the patient, whether they breached that duty, the injury the victim suffered, and the damages the victim incurred. These lawsuits require a thorough and comprehensive understanding of various substantive and procedural rules, and it is essential to contact an attorney to discuss how to pursue your claim successfully.

The first element of a dental malpractice claim requires the patient or their loved one to prove that the dentist owed them a duty of care. In these cases, the standard duty of care is that of which any other ordinary, prudent, similarly situated dentist would be under. A breach of the standard of care occurs when the dentist fails to meet this standard. However, in some situations, a patient may suffer an unwanted result that was not necessarily due to the dentist’s negligence.

Next, plaintiffs in these cases must be able to establish that there was a causal relationship between their injuries and the dentist’s breach. Essentially, the plaintiff must be able to provide evidence that their injuries would not have occurred but for the dentist’s negligent conduct. Many dental medical malpractice claims stem from failed procedures, erroneous extractions, nerve damage, tooth damage, disfigurement, and exposure to harmful chemicals.

Every year thousands of individuals in Florida suffer serious injuries or death because of a defective product, food, or device. In some cases, manufacturers catch faulty products before they cause serious injuries; however, in the vast majority of cases, defective products are recalled after a significant amount of damage has occurred. Florida product recalls usually happen after a manufacturer or a government agency discovers that the product is inherently or unreasonably dangerous to consumers. Although some manufacturers voluntarily recall their products, some prolong the recall for as long as possible. However, manufacturers who issue recalls are not automatically held liable for the injuries that their product causes. Floridians who suffer injuries because of a defective product should contact an attorney to discuss their rights and remedies in these cases.

Typically, Florida product liability lawsuits are complex and require a thorough and comprehensive understanding of evidentiary and procedural rules. However, at their most basic level, these cases require a plaintiff to establish that the product was defectively designed, manufactured, or lacked appropriate warnings. Then a plaintiff must prove that they used the product as intended, but that the product was the proximate cause of their injuries. Finally, the plaintiff must show that they suffered an actual, compensable loss because of the defective product.

These cases often stem from defective medical devices, car parts, infant products, children’s toys, boats, pool equipment, and recreational vehicles. For example, recently, the United States Consumer Product Safety Commission issued a recall of a recreational off-highway vehicle (ROV). The recall involves certain Honda Pioneer side-by-side vehicles. According to the recall notice, the ROV poses crash and injury hazards because it can move or roll when it is parked. Currently, the company has not received notification that anyone has suffered injuries; however, they received notice that the ROV began moving while parked. They advised consumers to immediately stop using the product and contact an authorized dealer for their next steps.

Individuals who suffer injuries because of a defective or unsafe product may hold the product designer, manufacturer, or distributor liable for their damages. Florida product liability laws cover many industries and products, including pharmaceuticals, nutrition supplements, food products, automotive parts and products, housewares, recreational equipment, infant products, and construction materials and tools. Florida permits product liability plaintiffs to recover for their injuries under three types of claims; negligence, strict liability, and breach of warranty.

Breach of warranty claims arises when a plaintiff argues that the designer or manufacturer breached its express or implied warranty claims regarding their product. Strict liability claims do not require a plaintiff to prove fault, but only that the defective product caused their injuries. Negligence claims, on the other hand, require the plaintiff to establish that they suffered damages because the defendant negligently designed, manufactured, or marketed their products. To recover for their injuries, plaintiffs must be able to prove causation-in-fact and foreseeability. When there are multiple defendants or causes for the plaintiff’s injuries, plaintiffs must also be able to prove that the defendant’s negligence was a “substantial contributing” factor to their injuries.

For example, a Florida appeals court recently issued its opinion in a case stemming from injuries a man suffered after exposure to benzene products during his lengthy career as a carpet and flooring installer. The man filed lawsuits against multiple defendants, arguing that he developed bone marrow and blood diseases because of long term exposure to benzene products. The defendants successfully moved for summary judgment, contending that the man failed to establish which product caused his illness. The man responded that the defendants were relying on the incorrect “but for” standard instead of the appropriate “substantial contributor” standard.

Recently, a national news report described several parents’ accounts of issues they encountered while using a popular, patented baby formula dispenser. Parents across the United States issued complaints to the company after pediatricians discovered that some infants consuming bottles from this machine were failing to gain weight and subsequently diagnosed with “failure to thrive.” Currently, there are more than 100 complaints against the company and various product liability lawsuits. Florida parents and caregivers who believe their child has suffered injuries or illness because of a defective product should contact an experienced Florida injury attorney to discuss your rights and remedies.

This particular product, Baby Brezza, is widely available at various physical and online retailers, and markets itself as the “most advanced” way to mix and create baby formula and water. However, many babies who used the product began to exhibit signs of hunger, including, temperament changes, sleep disturbances, and weight changes. One couple rushed their child to their doctor, where tests revealed that the baby was not consuming enough nutrients and calories. The culprit was the baby formula maker, as it was dispensing incorrect ratios of water to formula, resulting in a watery nutrient-deficient final product.

There are currently two class-action lawsuits against the company, in addition to various individual claims. The company’s marketing team stands by its products and contends that they precisely calibrate their machines to work with thousands of formulas. They further argue that they regularly test their devices, and any issue is likely the result of user error, including failure to maintain the product by cleaning the machine.

When individuals purchase or use products, they naturally expect the product to work as advertised and, if used as directed, not cause the person harm. If someone is injured by a dangerous product, Florida’s product liability laws allow victims to recover for their damages. Under Florida law, manufacturers, retailers, and wholesalers of a defective product may all be defendants in a product liability lawsuit.

Generally, there are two main theories that a Florida plaintiff may pursue against a defendant: negligence, and strict liability. Claims often arise from design defects, manufacturing defects, label defects, breach of warranty claims, fraud, and misrepresentation. The negligence theory allows Florida product liability injury victims to recover damages if they establish that they suffered injuries because the defendant was negligent in some aspect of the design, production, or marketing of the defective product. Under a strict liability theory, a Florida injury victim may successfully recover compensation against a culpable party if they can establish that the product caused the plaintiff’s injuries because it was unreasonably dangerous. The law does not require plaintiffs in these cases to prove negligence or carelessness.

Design defect claims allege that the inherent design of a product makes it unsafe for its intended purpose. Manufacturing defect claims arise when an injury victim concedes that the product’s design is safe, but some error in manufacturing occurred that renders the product unsafe. Finally, defective warning claims typically arise when a manufacturer fails to warn consumers and users about the inherent dangers of a device or product.

According to a recent new report, after several tragic deaths, numerous baby product manufacturers recalled their incline infant sleepers. The recalls arose after pediatricians and the Consumer Product Safety Commission (CPSC) alerted companies to concerns that the sleeper posed serious dangers to infants. Individuals whose loved ones suffered injury or death while using an incline infant sleeper or other baby product may be able to hold various parties liable under Florida’s product liability laws.

Historically, these products have been widely popular among parents who were experiencing issues with their infants sleeping. Manufacturers touted their products alleging that the recline and rocking mechanism helped babies that were suffering from reflux and colic. However, according to the American Academy of Pediatrics, the safest way for a baby to sleep is on their back on a firm, flat sleep surface. Safety experts and doctors began alerting consumers and patients to the dangers of these products after several babies died after rolling over and suffocating. After avoiding warnings and remarketing their products, Fisher-Price finally recalled their products. Following in line were several other companies that sell similar products.

There is likely no sum of money that can compensate a family who has lost a child. However, that fact does not absolve companies from liability, even if they recalled their products. Under Florida law, families may be able to file a product liability lawsuit against the company based on personal injuries or wrongful death.

Manufacturers of consumer products have a duty to ensure that their product is safe for its intended use. When a product is unreasonably dangerous or suffers from some sort of manufacturing defect, the manufacturer may be liable for any injuries that result through a Florida product liability lawsuit. In addition, other parties in the chain of distribution may also be liable for a dangerous product.

Recently, manufacturing giant Johnson & Johnson has been named in several product liability lawsuits based on its baby powder and other talc-based products. Over recent years, the company has been hit with several multi-million-dollar verdicts. These cases are based on claims that the company knew that its talc-based baby powder could cause serious health problems, specifically, lung disease, ovarian cancer, and mesothelioma, a cancer of the lining of internal organs that is associated with asbestos. Currently, there are an estimated 16,800 of these lawsuits pending against Johnson & Johnson.

In fact, in October of last year, Johnson & Johnson announced a recall of nearly 33,000 bottles of baby powder after preliminary tests indicated that there were trace amounts of chrysotile asbestos. The company later claimed that subsequent testing confirmed that there was no asbestos in the product. According to a recent report by the New York Times, the state government of New Mexico is the most recent party to file a claim against Johnson & Johnson.

Vaginal mesh injuries have resulted in many Florida products liability claims in recent years. Vaginal mesh has been used to treat women’s health issues, such as pelvic organ prolapse and stress urinary incontinence, by supporting weakened or damaged tissue. However, the use of vaginal mesh has led to serious complications for some women. Complications include vaginal pain, infection, inflammation, pain during intercourse, and mesh poking through vaginal skin. The complications are so serious that they have led to a stop in sales of the products. Earlier this year, the Food and Drug Administration (FDA) ordered all vaginal mesh manufacturers to stop selling and distributing the products.

Because of these complications, in recent years, many women have filed suit against vaginal mesh manufacturers by filing product liability claims across the country. Product liability claims involve the use of a product that causes injury or other damages to consumers.

In Florida products liability cases, state courts have adopted Section 402A of the Restatement (Second) of Torts as the standard for product liability. Under Florida law, products liability cases require proof first that the product at issue is defective. Second, they require proof that the defect caused the plaintiff’s injuries. A product can be defective because of its manufacturing defect, design defect, or inadequate warning.

Understanding when a person or entity must preserve evidence and how to get them to do so is an important part of a Florida product liability case. For example, if a person claims that a product is defective, preserving the evidence so that it can be inspected is essential. A person or entity’s duty to preserve evidence can arise in different ways, including by contract, by status, or by a discovery request.

If a person or entity fails to preserve evidence, a plaintiff may be able to file a spoliation claim. There are first-party and third-party spoliation claims. First-party spoliation claims are claims in which a party allegedly destroyed, lost, or misplaced evidence, and the party is also the defendant in a lawsuit for causing the plaintiff’s injuries or damages. Third-party spoliation claims arise when a person or entity destroyed, lost, or misplaced evidence critical to a plaintiff’s lawsuit, but where that party was not a party to the underlying action causing the plaintiff’s injuries or damages.

Under Florida law, the elements of a spoliation claim are: 1) the existence of a potential civil claim; 2) a duty to preserve relevant evidence; 3) the destruction of that evidence; 4) the significant impairment on the plaintiff’s ability to win the lawsuit; 5) the destruction of evidence cause the inability to win the lawsuit; and 6) resulting damages. One state’s supreme court recently decided a case involving a third-party spoliation claim where the employer failed to preserve the alleged defective product in a product liability claim.

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