WHAT IS MEANT BY THE TERM "DEFECTIVE PRODUCT"? A "defective product" is one that causes some injury or damage to person as a result of a person because of some defect in the product or its labeling or the way the product was used. The manufacturer, and others involved in the chain of commerce involving the products that caused the injury, are often liable for injuries defective products cause. All states allow some form of recovery to persons injured by "defective products". "Product liability" cases run from the obvious (a car sold without operational brakes, a mislabeled product that causes injury) to the not-so obvious (injury from exposure to tobacco, or harmful side effects from an improperly tested drug). WHAT IS THE BASIS FOR PRODUCT LIABILITY? While the laws applicable to defective product cases varies from state to state, there are three legal theories common to all jurisdictions which may form the basis of a successful product liability case: Manufacturing defect. In such cases the injury was caused as a result of defect in the manufacture of the product. An example would be a bicycle which was built with a small crack in the frame, which breaks when used, causing an injury to the rider. Design defect. In these cases the injury was caused by a poor design (even though there may be no defect in the individual product itself). An common example would be a piece of industrial machinery which was built without a proper safety or protection devices, and as a result a worker is injured as result while using the machine. Failure to warn, or "inadequate warning". These cases refer to injuries caused as a result of a product known to be potentially dangerous which was sold without a proper warning to the consumer. An example would be an over the counter drug sold without a warning of the hazards of use with certain other drugs, or excessive consumption, or possible side effects from its use. If you or a family member has been injured because of what you believe is a product defect, you should consult an attorney familiar with product liability / defective product cases at the earliest opportunity to protect you right of recovery.

WHO MIGHT BE RESPONSIBLE? A repairer, seller or manufacturer of defective goods is liable for injuries sustained by the person(s) using them. Liability may also extend to persons who did not purchase the product, but were using the product in a "foreseeable" manner when then injury occurred. Also, people injured as a result of someone else using a defective product may be able to recover if their injuries were caused by the product's defect. In other words, the manufacturer of the defective product is liable for injuries caused as a result of the defect. Also the sellers of the product -- everyone between the manufacturer and retailer, who are considered to be in the "chain or commerce", such as wholesalers or distributors -- may be liable, even though they did not "cause" the defect. If the defective part was a component in an larger product (for example, a defective seat belt in an automobile), the component producer may be liable, as well as the manufacturer of the larger product. There is sometimes a question as to whether sellers of "second hand goods" can be held liable for a product defect, since there is not the same expectation on the part of the purchaser. That depends on the facts, and varies from state to state. However, if the product was warranted or guaranteed to work "like new", there may be a basis of liability. Finally, with the emergence of corporate takeovers, purchases, break-ups and dissolutions there may be other potentially responsible parties who are liable for injuries caused by defective products. A good attorney typically perform a thorough corporate search to locate and then sue all the proper parties if a lawsuit seems justified

WHAT ARE THE REQUIREMENTS OF A SUCCESSFUL CLAIM FOR A PRODUCT DEFECT? Again, this will vary with the state in which you live. Generally, product defect cases are based on strict liability, rather than negligence. This means that it is not necessary to prove "fault" on the part of the defendant, but to be successful your attorney must prove: the product was "unreasonably dangerous" or "defective"; you were injured from use of the defective product; and the injury was caused by the defect in the product. Many states require that to win it is necessary to prove both that the product was defective, and that it was also "unreasonably dangerous", which means that the product was dangerous to an extent beyond that which would be contemplated by an ordinary consumer. The law recognizes that many products are dangerous, and that consumers should know that the product is dangerous when they purchase it (for example, guns, knives, power tools, etc.). However, if a consumer uses a defective product in a manner that an "ordinary consumer" would (even if it is not the intended use of the product), and is injured as a result, then a valid case may exist. All jurisdictions require a connection between the product defect and the injury. You may not have a case if you are injured by a defective product if the injury was not caused by the defect. This is an argument you should expect if you pursue a product defect case. Many product liability cases turn on a "battle of experts", where both plaintiff and defendant use expert testimony to establish or deny a link between an alleged defect and an injury. An experienced attorney can advise you about the potential success of your case, and how the manufacturer and other defendants are likely to try to get out of liability.

IF I HAVE A POTENTIAL CLAIM, DO I HAVE TO PURSUE IT IMMEDIATELY? You should. All states have some form of "statute of limitations", which strictly limits the time you have to file a lawsuit. A valid claim filed after the statute is usually denied. As a result, if you think that you may have been injured from a defective product, you should seek the advice of an attorney at the earliest opportunity, to protect your rights. The time frame in which the statute of limitations runs usually begins from the time of the injury as a result of the defect. However, most states have some form of a "delayed discovery" rule, which states that the statute does not begin to run until the injury was "discovered". This may be important when the injury is not readily apparent, as in the "breast implant" cases, and cases involving exposure to hazardous materials (like asbestos), where the injuries were not discovered until years later. However, you'd want to go to a lawyer sooner, rather than later, to make sure your rights are protected.

WILL I NEED MONEY TO PURSUE A PRODUCT DEFECT CASE? Most product defect cases are handled on a contingency fee basis, which means the attorney only recovers if the case is successful, and then the fee consists of a portion of the award or settlement. You do not pay the attorney on an hourly basis, and depending on your state's laws, the attorney may even advance the expenses of a lawsuit, including the costs of expert witnesses. However, some states and some attorneys require that a claimant pay the costs associated with pursuing a lawsuit, either up front or as incurred. Product liability cases can be very expensive to bring and move forward. While you may not have to pay the attorney a fee if there is no recovery, you may be responsible for costs (including expert witness testimony) if you lose your case. We suggest you discuss your responsibility to pay fees before retaining an attorney for your case.

WHAT KINDS OF DAMAGES ARE RECOVERABLE IN A PRODUCT DEFECT CASE? If you have a successful case, you are entitled to compensatory damages, which includes your medical bills incurred as a result of the product defect, reimbursement for any time lost from work, and property damaged as a result of the defective product. You are also entitled to damages for pain and suffering you experienced as a result of your injury, and general damages over and above the damages listed above. If you are married and the injury has affected the relationship with your spouse, you may be entitled to loss of consortium damages. Your spouse may also be able to recover these damages, even if him/her was not directly injured by the product (see below). Finally, if the conduct of the defendant was "egregious" (so awful that the courts want to deter the defendant and others from ever doing anything like that again), you may be entitled to punitive damages to punish the defendant(s). Punitive damages are not available in every case, and the proof requirements are usually more strict than the other damages listed above. In addition, many jurisdictions are limiting or restricting the ability to recover punitive damages.

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Law Office of John S. Xydakis, P.C.