We represent victims who have been seriously injured by products that have been defectively designed, manufactured, or marketed to the public in a manner that exposes consumers to unreasonable risks. If you have been involved in an accident under circumstances in which you believe that a defective product may be involved, it is important that you take the following steps:
- Preserve the product for subsequent analysis;
- Retain any documentation, such as instruction manuals, warranties and proof of purchase;
- Make a list of names and contact info for everyone involved in the sale or other distribution of the product to you and any witnesses to your injury;
- Consult with an attorney immediately (this is particularly important both for statute of limitations purposes and because you may have to report the problem to the seller or manufacturer in order to preserve all of your legal remedies).
In the typical course of a product liability case, we will retain one or more experts to examine the defective product and consult on the case. We incur the often substantial expense of retaining these experts. As in all of our cases, the client is only responsible for paying our fees and costs in the event of a settlement or a judgment in the client's favor.
Types of product defects
There are three types of product defects that may result in product liability judgments under Florida law: design defects, manufacturing defects, and marketing defects.
The first type of defect, a design defect, demonstrates the law of unintended consequences, in that the very design of the product carries with it some latent defect that typically was unanticipated by the product designer.
The second type of defect, a manufacturing defect, is the most easily understood sort of product defect. The product may be sound in design, but some production problem has caused the product to be manufactured improperly or has caused the product to be damaged or tainted in some way.
The third type of defect, a marketing defect, typically results from improper user instructions or simply from the failure to warn the user of potential product hazards.
Theories of recovery in product liability cases
Manufacturers and commercial distributors of defective products may be found liable under three different product liability theories.
The first theory, strict liability, requires the plaintiff to show (i) a relationship between the defendant and the product; (ii) a defect in the product that caused it to be unreasonably dangerous; and (iii) that the product defect caused physical harm to the user. In other words, a manufacturer or commercial distributor may be found liable for a plaintiff’s damages even if there is no evidence of negligence, so long as there is evidence that the product was unreasonably dangerous for its intended use. This particular theory of liability is particularly in cases involving products that have not malfunctioned or been damaged or tainted in some way, but are still unreasonably dangerous for their intended use, for example, because of a design defect or because of unforeseen consequences from the use of the product.
The second theory, negligence, requires the plaintiff to show (i) that the defendant had a legal duty to design, manufacturer or sell a product that was reasonably safe for its intended use; (ii) that the defendant failed to comply with that duty and reasonably should have known of the product defect; and (iii) that the product defect caused physical harm to the user. This theory of liability is commonly used in cases involving manufacturing defects involving poor quality control.
The third theory, breach of warranty, actually covers two different types of breaches, breaches of express warranties and breaches of implied warranties. An express warranty is an oral or written guarantee made by a manufacturer or distributor. An implied warranty is a warranty imposed by law. One type of implied warranty is the warranty of merchantability, which requires that the product be fit for the purpose for which it has been manufactured and sold and be of at least average quality. This type of warranty does not apply to a sale of goods by a non-merchant. Another type of implied warranty is the warranty of fitness for a particular use, which applies where a buyer has relied on a seller’s judgment to select a particular product for the buyer’s specific needs. This type of warranty can apply to both merchants and non-merchants.
Damages in Product Liability cases
If you are injured because of a defective product, you may be entitled to recover both economic and non-economic damages. Economic damages include such items as health care costs (both past and future), lost wages (both past and future) and expenses associated with property damage caused by the defective product. Non-economic damages, which are often the most significant part of a product liability recovery, include such items as pain and suffering and loss of enjoyment of life. Finally, if the defendant is determined to have been engaged in intentional misconduct or to have been grossly negligent, the Court may award punitive damages to punish the defendant.
The U.S. Consumer Product Commission had reported the recall of over 5,000 different types of products. The Commission maintains a searchable directory of these recalls on its website at http://www.cpsc.gov/cpscpub/prerel/prerel.html
The National Highway Traffic Safety Administration compiles similar information regarding the recall of motor vehicles and motor vehicle components (such as tires) at http://www.nhtsa.gov/Vehicle+Safety/Recalls+&+Defects
. Over 89,000 recalls have been reported since 1966.
The U.S. Food & Drug Administration’s Food Safety and Inspection Service reports food recall information at http://www.fda.gov/AboutFDA/ContactFDA/StayInformed/RSSFeeds/Recalls/rss.xml
The U.S. Department of Agriculture reports food recalls at http://www.fsis.usda.gov/Fsis_Recalls/Open_Federal_Cases/index.asp
Other government agencies, such as the Environmental Protection Agency and the U.S. Coast Guard, also are involved in recalling dangerous products. A valuable compilation of recall databases for all of the above agencies can be found at http://www.recalls.gov/
. However, the above sites address only a fraction of the total number of potentially defective products, as they only cover products whose flaws have already come to the attention of manufacturers and involved serious enough concerns about safety to mandate a recall.
We are regularly identifying products that are of particular concern to us, such as the following:
– Pelvic organ prolapse (“POP”) and stress urinary incontinence. (“SUI”) in women are sometimes treated with the transvaginal placement of surgical mesh. On October 30, 2008, the FDA issued a public health notification that it had received over 1,000 reports from surgical mesh manufacturers of complications in patients implanted with the mesh, including erosion through vaginal epithelium, infection, pain, urinary problems, and recurrence of prolapse and/or incontinence. There were also reports of bowel, bladder, and blood vessel perforation during insertion. In some cases, vaginal scarring and mesh erosion led to a significant decrease in patient quality of life due to discomfort and pain, including dyspareunia (painful sexual intercourse). Treatment of the various types of complications included additional surgical procedures (some of them to remove the mesh), IV therapy, blood transfusions, and drainage of hematomas or abscesses. At the time, the FDA characterized the incidence of the complications as “rare”. On July 13, 2011, the FDA issued an updated public health notification indicating that it not longer considered the incidence of such complications to be rare. If you have undergone a vaginal mesh procedure and have experienced any of the complications set forth above, you should consult with an attorney.
Depuy ASR XL Acetabular metal-on-metal hip replacements - This hip replacement hardware first became available in the United in 2005. The FDA subsequently began receiving numerous complaints and in 2010 the manufacturer acknowledged that approximately 12% of patients implanted with the devices subsequently needed revision surgery. In August 2010, the manufacturer issued a voluntary recall. In December 2010, thousands of cases against the manufacturer pending around the country were consolidated for discovery purposes in a federal proceeding in Ohio. If you received a Depuy metal-on-metal hip replacement and have subsequently suffered complications, you should consult with any attorney.