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    Litigation Over Dangerous Products
    Ford Motor Company no longer produces a car that explodes and bursts into a ball of flames when struck from behind. Work places have fewer guard-less punch presses and other machines capable of maiming and disfiguring. Life-threatening birth control and other medical devices have been removed from the market and the industry exercises more caution before introducing new devices. Asbestos is no longer used as an insulator, infants' toys are safer and, in general, manufacturers are simply producing safer products.

    What has motivated manufacturers? Certainly, there are various factors, including federal and state agencies and regulations, (some of which are currently in jeopardy). Perhaps the greatest incentive however, has been products liability lawsuits. Because of the consumer's right to personally enforce the law through his or her decision to bring a products liability lawsuit, manufacturers know that if they create a product that is unreasonably dangerous, they subject themselves to serious liability.

    Effective Consumer Protection
    The products liability lawsuit is the consumer's most effective weapon against unreasonably dangerous products. Regulations often lack teeth and offer little more than a wrist slapping to the manufacturer. A products liability lawsuit allows the individual citizen to assume the role of the attorney general and to prosecute an action against greedy, reckless, or negligent manufacturers. It is therefore not surprising that manufacturers are frightened of the consumer's right to sue. It is also not surprising that manufacturers are working to limit the consumer's right.

    Although a person injured by an unreasonably dangerous product is justified in seeking compensation for his or her injuries, the consumer should be aware that a products liability lawsuit is oftentimes a hard-fought battle. The manufacturer generally has no concern for fairness. Settlement proceeds and jury awards are sometimes shockingly small in comparison to the plaintiff's injury. Excessively large verdicts, while well-publicized, are a rarity, (and when they occur, they are usually reduced by the trial court or on appeal). Punitive damages are awarded only in the most egregious cases.

    Starting a Product Liability Suit
    In instituting a products liability action, the plaintiff should charge not only the manufacturer but all other entities responsible for placing the unreasonably dangerous article in the market. Other responsible parties may include distributors, retailers, repairers, assemblers, component suppliers and testing laboratories. All such entities may have played a significant role in placing the defective product in the market and all such entities have profited from their actions and thus should bear responsibility for damage resulting from their unreasonableness.

    An injury from a product is not a justification for suing the manufacturer. Rather, the consumer must be able to legitimately allege that the product was "defective", a legal term meaning essentially, that the product was unreasonably dangerous.

    A product can be unreasonably dangerous for various reasons. The design of the product could be defective, thus the entire line of products would be unreasonably dangerous. Generally, (although it varies from state to state), to determine whether the product is unreasonably dangerous, a balancing test will be employed in which the utility of the product is weighed against the danger it poses. In most cases, the plaintiff will be obligated to offer a reasonable alternative design that the manufacturer could have employed, which would have prevented the injury and which would not have substantially diminished the product's effectiveness. The added expense of the plaintiff's proposed alternative design is of course a factor in the balancing test. If the jury finds that the plaintiff's proposed alternative was reasonable and would have eliminated the product's risk, the product should be deemed defective.

    It is also worth noting that the manufacturer in a design defect case, cannot refer to the industry custom or standard as a defense. In other words, the defendant cannot say that a product's design was not defective, simply because the other manufacturers used the same design. The entire industry could be at fault.

    The industry standard defense should be distinguished from the "state of the art defense". This latter defense basically says that when the product was built, the design was the state of the art; there was no safer, alternative design. With some exceptions, the state of the art defense is a valid one and it protects a manufacturer from liability for a product, which was reasonably safe years ago but which currently, because of developments in the field, could be deemed defective.

    A manufacturing defect is another category of products liability. Such a theory says simply that the particular product was mis-manufactured and that in its condition, it was unreasonably dangerous. The plaintiff must of course show that the product was in its defective condition when it left the manufacturer's possession and that it was unaltered at the time it caused the injury. In short, the consumer must prove that the defect was caused by the manufacturer.

    A product can also be unreasonably dangerous absent appropriate warnings. If a product could reasonably have been designed with a higher degree of safety, a proper warning will not necessarily convert the unreasonably dangerous product into a safe, non-defective one. An appropriate warning however, can transform certain dangerous products, that would be defective without the warning, into reasonably safe ones. To be effective, the warning must be thorough and conspicuous and it must warn the consumer of the magnitude of the risk involved in failing to abide by the product's warning instructions.

    Products liability lawsuits include negligence theories, strict liability theories and breach of warranty theories. Each of these theories can be applied to all of the above categories of products liability actions.

    A negligence theory requires the plaintiff to prove four elements. First it must be shown that the defendant owed a duty to the consumer. Manufacturers do in fact, owe a duty to the users of its products and to bystanders likely to be injured. The manufacturer also has a duty in making its product, to guard against injuries likely to result from reasonably foreseeable misuse of the product. For example, a power saw that explodes when used on unrecommended hard wood, might well be defective. The plaintiff must also show that the manufacturer breached its duty, (by applying the above design defect, manufacturing defect or failure to warn theories). In showing breach, the reasonable manufacturer standard applies, i.e., would the reasonable manufacturer, with knowledge or constructive knowledge of the product's defect, have produced the product. If the answer is "no", then the manufacturer has breached its duty. Of course, the plaintiff need also prove he or she was injured and that the defendant's breach caused the injury.

    Strict Liability
    Strict liability is different from a negligence theory in that the injured plaintiff need not show knowledge or fault on the manufacturer's part. The plaintiff must show only that the product was sold or distributed by a defendant, and that the product was unreasonably dangerous at the time it left the defendant's hands in order to prove liability on the part of such defendant. The behavior or knowledge (or lack of knowledge) of a products liability defendant regarding the dangerous nature of a product is not an issue for consideration under a strict liability theory. Strict liability concerns only the condition of the product itself. In contrast, a negligence theory concerns not only the product, but also the manufacturer's knowledge and conduct.

    "Strict liability", however, does not mean "absolute liability". Simply because a person is injured, he or she cannot assert strict liability and automatically recover. Instead, the injured consumer in asserting strict liability, still must prove his or her right to compensation by showing that the unreasonable dangerous condition of the product was what actually caused the injuries sustained.

    The final products liability theory is that of breach of warranty. Every product comes with an implied warranty that it is safe for its intended use. A defective product that causes injury was not safe for its intended use and thus can constitute a breach of warranty. Further, a seller or manufacturer cannot simply disclaim such a warranty but will be held responsible if its product is deemed defective.

    The injured consumer should also be advised to preserve the allegedly defective product. THIS IS VERY IMPORTANT because, in some cases, if the item is lost, the consumer may be left with no proof of the product's defect and the possibility of a successful lawsuit could be wiped out completely as a result.

    A products liability lawsuit is the best, if not the only, remedy for consumers injured by unreasonably dangerous products. Once engaged in such an action however, the plaintiff will learn that the reality is very different from that painted by the manufacturers and their allies. A recovery is difficult and a fair recovery is never assured. Fortunately, more often than not, the party which should fairly prevail, does win.

    A products liability lawsuit also generates incentive for manufacturers to produce safer products. Absent the individual's right to sue, we must resort to reliance on the government and on the good will of manufacturers to produce reasonably safe products. History informs us that such a situation simply creates more money for manufacturers, and more injured consumers.

    This informational piece was prepared by Monheit, Silverman & Fodera. If you would like more information on this topic, call us at (800) 220-LAW1, or use the "Do I Have A Case?" button on this web site.

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