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Law Office of John
S. Xydakis, P.C.
Suite 3600
55 E. Washington St .
Chicago , Illinois 60602
(312) 727-1100
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PRODUCTS LIABILITY
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).
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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.
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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 |
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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.
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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.
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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.
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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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If you have a products liability
case, don't delay. There is a statute of limitations in which you need to
file your case. If you want a free evaluation of your case, please fill out the form by clicking
here: Chicago lawyer for products
liability case.
Law
Office of John S. Xydakis, P.C.
Suite 3600
55 E.
Washington St.
Chicago, IL
60602
(312)
727-1100
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