Frequently Asked Questions About Product Liability
US, Canada and Puerto Rico
What is product liability?
What is a “failure to warn” or “defective design” claim?
What if the consumer uses the product in a way which is not intended by the manufacturer and the consumer is injured?
What kind of claims can be brought for product liability?
What is strict liability?
What is negligence?
What is breach of warranty?
What damages does the law allow in product liability cases?
What are economic damages?
What are noneconomic damages?
What are punitive damages, and may they be recovered in product liability cases?
If I bring my case to you, what will you do?
What considerations are taken into account in determining whether you will file a case?
How do I know that you will do a good job on my case?
What are your fees?
Q. What is product liability?
A. Product liability is the body of law that provides for compensation for physical injuries and property damage resulting from defective and unreasonably dangerous products and from the failure of a manufacturer or seller to warn the consumer of product dangers.
Q. What is a “failure to warn” or “defective design” claim?
A. Failure to warn is the claim that a manufacturer failed to provide directions for the safe use of a product or failed to warn the consumer against dangers inherent in product misuse. For example, a manufacturer who sells a pain killer without warning that use of the drug with alcohol could impair the user's ability to operate machinery may be liable if the consumer is injured in this fashion.
Defective design is the claim that a product is, at the time it is sold, in a defective condition, unreasonably dangerous to the ordinary consumer. For example, a seller who designs a circular power saw which does not include a blade guard may be liable if the user suffers an injury from the unguarded blade.
Q. What if the consumer uses the product in a way which is not intended by the manufacturer and the consumer is injured?
A. This is a concept known as “foreseeable misuse”. Manufacturers are required to anticipate the real world uses of their products and are responsible for “foreseeable misuse” by the consumer. Foreseeable misuse includes foreseeable product alterations by the consumer. A manufacturer must also warn a consumer of dangers associated with product misuse.
Q. What kind of claims can be brought for product liability?
A. The alternative theories of liability in a product liability case are (1) strict liability; (2) negligence and (3) breach of warranty. Sometimes all three theories are pursued in one case.
Q. What is strict liability?
A. Strict liability is the legal principle that a person or company which sells a product in a “defective condition” that is unreasonably dangerous to the ordinary user may be liable for any resulting property damage or physical injuries. The defect may be in the product’s design or manufacturing, in the product’s container or packaging, or in the instructions or warning necessary for the product’s safe use. In a strict liability case, the injured person is not required to prove the manufacturer or seller was negligent.
Q. What is negligence?
A. Negligence is a breach of a duty owed by the manufacturer to the user in light of the reasonably anticipated harm arising from all reasonably foreseeable uses of the product. The duty includes design, manufacturing, assembling, instructing and warning. In a negligence case the injured party must prove a violation of a standard of reasonable care by the manufacturer in the design or manufacture of the product.
Q. What is breach of warranty?
A. A warranty is an expressed or implied representation about the product to the consumer. Common warranties are that the product is fit for the ordinary purpose for which it is used or that the product is fit for a particular specific purpose. Breach of warranty generally means that the product did not perform as represented or expected.
Q. What damages does the law allow in product liability cases?
A. Generally, the plaintiff is to be reasonably compensated for all injuries and losses resulting from the occurrence in question. Damages are split into two general categories: economic (past and future), and noneconomic (past and future).
Q. What are economic damages?
A. Economic damages include almost everything that can be replaced with a checkbook. This category of damages is very broad and will vary from case to case. Economic damages can include the reasonable expenses of necessary medical care; hospitalization and treatment; loss of income or earning capacity; the reasonable value of services provided by family members for free; the cost of hiring others to perform normal household duties; and the loss of the injured person's services to his or her spouse. These losses are projected into the future based, among other factors, on medical testimony regarding continuing disability and future needs.
Q. What are noneconomic damages?
A. Noneconomic damages are those losses which cannot be quantified in a dollar amount. The most prominent examples are pain and suffering, mental anguish, inconvenience, physical impairment or disability, disfigurement, and loss of enjoyment of life. The importance of categorizing damages as economic or noneconomic lies in the fact that noneconomic damages are sometimes limited under some state laws. We often see cases where people's lives are devastated by catastrophic injuries, but if they are children or elderly, economic losses are limited and the capped amount of noneconomic damages is unfairly inadequate.
Q. What are punitive damages, and may they be recovered in product liability cases?
A. Punitive damages are not based upon the severity of the injury to the plaintiff, but rather upon the need to punish the defendant and deter others from engaging in like conduct. Before punitive damages may be awarded, the plaintiff must prove that the defendant acted in a “wanton or intentional” way, which includes the “reckless disregard” of a known danger to the plaintiff’s health and safety. This must be proven by clear and convincing evidence. Punitive damages are extremely rare, but available in appropriate circumstances.
Q. If I bring my case to you, what will you do and how much will it cost?
A. First of all, we will not charge you for any of the time we spend visiting with you or for the cost of investigating your case. We start with an interview to determine the facts as you know them, and make a judgment about whether the case is one which falls within our expertise and interests. The ensuing investigation begins with the collection of all pertinent records, including accident reports, product literature, company brochures, and medical records. We ask you to sign releases authorizing us to obtain these records. We then review and analyze the records. If we believe there is a strong possibility that a product was defective, we will submit it to the appropriate experts for review, asking them for their opinions on the issues of the defective nature of the product, damages and causation. If, after consultation with experts, we believe that we can satisfy our burden of proof, we recommend that the case be filed.
Q. What considerations are taken into account in determining whether you will file a case?
A. There are legitimate and meritorious cases of product liability which we do not take as a matter of firm policy. We try to balance the probable result of a case, either by settlement or by jury verdict at trial, against the cost of obtaining that result. Product liability cases are extremely time-consuming, and absorb a tremendous amount of our firm’s resources. We handle product liability cases by a “team” approach, usually involving a principal attorney, an associate attorney, a paralegal, and one or more secretaries. In addition to our time and resources, product liability cases have a high out-of-pocket cost for experts, depositions, travel, research, trial exhibits, and many other things. In all cases, we must determine if the matter is “economically feasible”. We do not handle cases where the time, resources, and expense at risk outweigh the probable result we can obtain on behalf of our clients.
Q. How do I know that you will do a good job on my case?
A. We believe that our experience and results in product liability cases count. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. Please keep in mind, however, that every case is different and no result is guaranteed. All we can promise is our best effort on each and every case.
Q. What are your fees?
A. Balkin & Eisbrouch handle all cases on what is called a contingency fee. This means that no fees or costs are charged unless we collect money damages for you. We advance all costs for investigators, court reporters, expert witness testimony, accident reconstructionists, filing fees and any other expenses related to your case. All of the consultations with our office are absolutely free. When you receive compensation, meaning we have successfully concluded your case, either by settlement or litigation, our fees are a percentage of the gross settlement. This percentage is agreed upon before we begin work on your case and is generally between 20% and 40%. The percentage depends on the complexity and type of case.
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