Articles Posted in Defective Products

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.

Last month, a state appellate court issued a written opinion in a Florida personal injury case involving the state’s statute of repose for claims related to the “design, planning, or construction of an improvement to real property.” Ultimately, the court concluded that the plaintiff’s claim fit within the statute’s reach, and was no longer viable under the applicable statute of repose.

Statutes of repose are similar to statutes of limitations in that they limit the time a plaintiff has to file a claim. However, unlike a statute of limitations, a statute of repose is not subject to tolling or extensions. Thus, a statute of repose can bar a plaintiff’s claim even if the plaintiff does not know of the alleged defect until after the statute has expired.

According to the court’s opinion, the plaintiff purchased a home from the defendant home builder on May 7, 2004. On June 6, 2012, the plaintiff was climbing into the attic to repair a leak when the attic stairs collapsed. The plaintiff brought a personal injury claim against the home builder, claiming that it was negligent for “failing to ensure that the attic ladder was installed in a secure manner” and “failing to verify that the ladder was secure before selling the home.”

Florida product liability law is primarily based on strict liability. Strict product liability refers to a claim in which the plaintiff alleges that the product at issue was defective or unreasonably dangerous. The focus of these claims is on the product itself, and these claims do not require a plaintiff to show that the defendant was negligent in any way.

While strict product liability may seem like a straightforward doctrine to apply, determining which parties are subject to strict liability can actually be quite complicated. A recent state appellate decision illustrates the concept of successor liability as it pertains to the plaintiff’s strict liability claim against a rental car company.

According to the court’s opinion, the plaintiff was seriously injured when the rental car she was riding in was involved in a head-on collision. The vehicle was previously rented through National Car Rental Systems (NCRS); however, NCRS sold the vehicle to a private party years before the plaintiff’s accident. The plaintiff filed her claim against Enterprise rental car company because Enterprise eventually acquired NCRS’s rental car business after the NCRS assets were transferred several times through various companies in a complex series of transactions.

E-commerce is responsible for a growing share of all retail sales. As a general matter, when a dangerous product injures a consumer, any company in the supply chain can be held liable through a Florida personal injury lawsuit. A recent federal appellate court decision clarifies the situations in which large online retailers can be held responsible for products that are sold on their sites.

According to the court’s opinion, the plaintiffs’ purchased a hoverboard on (Amazon). The hoverboard was sold on Amazon’s website, but was sold by a third-party seller. Neither Amazon nor the third-party seller manufactured the hoverboard. However, there was conflicting evidence whether the item was sold through Amazon’s “fulfilled by Amazon” (FBA) program.

The FBA program was essentially a drop-shipping agreement by which third-party sellers would pay Amazon and send their products to an Amazon warehouse. When an item was purchased, Amazon would ship the product. Aside from storing and shipping the product, Amazon had no role in selling the product, including setting the price or advertising the hoverboard, and never took ownership of the item. The hoverboard arrived in an Amazon box, and the plaintiffs believed that Amazon sold it. There was also conflicting evidence regarding whether Amazon retained payment for the hoverboard.

The typical Florida personal injury case requires the plaintiff to establish proof of four elements:  duty, breach, causation, and damages. In many cases, the defendant acknowledges that they breached a duty that was owed to the plaintiff and that the plaintiff suffered injuries, but they claim that their breach of the duty was not the cause of the plaintiff’s injuries.

To satisfy the causation element, a plaintiff must show that their injuries were the direct or natural consequence of the defendant’s actions. Importantly, a Florida personal injury plaintiff does not need to prove that the defendant’s negligence was the only cause of their injuries, only that it was a contributing factor. A plaintiff can even recover from a negligent defendant if the plaintiff shared responsibility for the accident resulting in their injuries.

Proving that the defendant’s actions were the legal cause of an injury can be tricky, depending on the circumstances. Generally, a plaintiff cannot rely on speculation and must present some evidence indicating that the defendant’s actions were the cause of the plaintiff’s injury. A recent decision issued by a state appellate court discusses the element of causation.

When someone is injured due to a dangerous product, manufactures, retailers, and any other person or company in the supply chain can generally be held liable through a Florida product liability lawsuit. There are several theories under which an injury victim can bring a product liability lawsuit, including defective design claims, manufacturing defect claims, and failure-to-warn claims.

Design defect claims arise when a product’s design itself is dangerous. Thus, no matter how carefully the product is manufactured, it cannot be made safe. These claims can be proven by showing that the product failed to satisfy consumer expectations of a safe product or by showing that the risks presented by the product outweigh its benefits.

As noted above, a Florida defective design claim can generally be brought against any actor in the supply chain. This includes manufacturers, suppliers, distributors, retailers, as well as any other party that helps make the product available to the public. In a recent case, a state appellate court was asked to determine if a manufacturer could be held liable for a plaintiff’s injuries when the plaintiff rented the vehicle from a rental agency.

In April 2019, a state appellate court issued a written opinion in a Florida personal injury lawsuit determining whether the lower court properly allowed the plaintiff leave to amend her complaint to add punitive damages in her claim against the defendant. Ultimately, the court determined that it did not have the authority to review the lower court’s decision.

According to the court’s opinion, a minor child was injured while on a ride called the “Psycho Swing.” The defendant owned the ride. The girl’s parents filed a personal injury lawsuit against the defendant and several other parties, including the employees operating the ride at the time of their daughter’s injury. The plaintiffs claimed that the ride was missing “crucial safety equipment, safety instructions, etc.” Specifically, the plaintiff contended that the defendant was negligent in renting out the ride without a safety harness or instructions.

Initially, the plaintiffs claim only included a request for compensatory damages. However, after obtaining additional information, the plaintiff’s sought to amend their complaint to seek punitive damages. The court granted the plaintiff’s request, and the defendant appealed the court’s decision immediately.

Recently, a state appellate court issued a written opinion in a Florida product liability case discussing whether the State of Florida had personal jurisdiction over the defendant, a company that mined and processed talc that was included in products manufactured by other companies.

What Is Jurisdiction?

The term jurisdiction refers to a court’s power to hear a case and issue a binding judgment over the parties involved. By filing a lawsuit in a particular state, the plaintiff consents to that state’s jurisdiction. Thus, when jurisdiction is challenged it is challenged by a defendant who claims that the state where the plaintiff chose to file the case does not have power over the defendant.

The Facts of the Case

According to the court’s opinion, the plaintiff filed a Florida product liability case against several defendants based on the plaintiff’s use of Johnson & Johnson talc-based baby powder. Among the defendants named in the plaintiff’s lawsuit were Johnson & Johnson, the grocery store where the plaintiff purchased the powder, and the manufacturing company that provided Johnson & Johnson with the talc that was used to make the product. This opinion involved only the manufacturing company.

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Recently, a state appellate court issued an opinion in a personal injury case discussing whether a plaintiff’s case against a defendant manufacturer is subject to dismissal at the summary judgment stage if the defendant manufacturer can establish that the plaintiff misused the product at issue. Ultimately, the court concluded that a plaintiff’s misuse of a product can be a complete defense to a product liability lawsuit if the defendant proves the plaintiff’s misuse.

The case is important to Florida product liability plaintiffs because it illustrates the misuse defense, which may act as a complete bar to recover in Florida product liability lawsuits proceeding under a strict liability theory. However, Florida courts have held that a plaintiff’s misuse of a product is not a complete defense in a negligence-based product liability claim, and that the plaintiff’s misuse cannot be used to bar recovery in these cases. Instead, a plaintiff’s misuse of a product can be used to reduce a plaintiff’s damages award.

The Facts

According to the court’s opinion, the plaintiff was seriously injured while using an air-powered tool that was made by the defendant manufacturer. The tool contained an instruction manual, warning users should always wear safety goggles, should only use the tool with its cut-off wheel attachment when a safety guard is installed on the tool, and that only attachments rated for speeds up over 25,000 revolutions per minute (RPM) should be used. When the plaintiff purchased the tool, it did not come with a safety guard and the instruction manual did not mention where a user could obtain a safety guard.

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