Product liability cases

DEFINITION: Legal cases involving allegations that defective and dangerous products have harmed people and property.

SIGNIFICANCE: Sophisticated evidence is necessary to prove that personal or property harm has resulted from defective products. Lawyers rely on forensic experts to conduct analyses of products suspected of being defective and prepare expert testimony to prove all elements of a legal theory or to defend an entity in the chain of distribution from liability. In addition, companies concerned with designing and manufacturing good-quality products rely on input from forensic scientists.

Manufacturers, wholesalers, distributors, retailers, assemblers, installers, and those who lease or rent products have the best ability to ensure that defective and dangerous products do not enter the marketplace. In the United States, when a defective product results in harm, the courts impose joint and several liability on the marketing participants as a matter of public policy. These deep-pocketed entities in the chain of distribution usually have insurance coverage and are able to spread the product liability risks and apportion damage costs among themselves better than those who suffer injury from defective products. Usually those who are not regularly in the business of selling or renting particular products, such as individuals who sell goods at yard or garage sales, are considered outside the chain of distribution and thus cannot be sued for product liability.

Historically, only those who had a buyer-seller relationship or were in privity of contract with a seller could sue, but US states no longer limit those who have standing to sue under many of the product liability theories. This means that not only those who originally purchased a defective product but also any person who might foreseeably be harmed by the product may file a product liability action. This includes family members and friends of purchasers, remote purchasers, and any bystanders who suffer harm.

Causes of Action, Defects, and Remedies

Product liability cases are based on torts, or civil wrongs, and contract law. At least four significant causes of action are possible in a product liability case: strict product liability, negligence, misrepresentation or fraud, and breach of warranties. Some of the counts require plaintiffs to prove causation, whereas others do not. In every case, however, some proof must exist that the product is dangerous or has a design, manufacturing, or warning defect.

Companies conduct cost-benefit and risk analyses when determining the best designs for their products and whether reasonable alternative designs would avoid or reduce the risk of harm from the products. They balance the risks of potential harm against the costs of designs that will result in reasonably safe products while still ensuring that the companies can make a profit. Courts also consider cost-benefit analyses and reasonable alternative designs when a design defect is the issue in a product liability case. Plaintiffs may rely on forensic experts to prove that there is an alternative and safer design for the product, while defendants will try to show not only that no alternative design is reasonable but also that the alternative design suggested by the plaintiff is not cost-efficient.

Whenever a company manufactures a product with reasonable care but does not follow the intended design, a manufacturing defect may exist. When a product is seriously damaged or destroyed in an accident, forensic experts and those who attempt to reconstruct the accident may need to rely on the malfunction doctrine to prove product liability. The malfunction doctrine requires a plaintiff to eliminate all possible means of harm except for the product defect.

Warning defects consist of a lack of warnings or a failure to give adequate warnings concerning both the safe way to use a product and the potential dangers associated with the product, including those that are not obvious. It is impossible to warn against all potential risks of harm, but those in the chain of distribution have the responsibility to warn against foreseeable dangers in order to avoid liability based on a defective warning that renders a product unreasonably unsafe. Such warnings must be clear, understandable, and specific. Given the increasingly global nature of the marketplace, product instructions on use and warnings concerning dangers are usually provided in multiple languages, and many companies also use internationally understood symbols to warn of specific dangers.

Product liability cases are considered civil as opposed to criminal actions. Usually, the plaintiffs who have personally been injured or whose property has suffered harm request monetary damages, but other remedies are available, including restitution and replacement of defective products. If a court determines that monetary damages are not adequate, it may order relief such as an injunction that requires the company to remove the defective product from the marketplace.

Strict Product Liability

As a matter of public policy, courts and legislatures have determined that consumers must be protected against harm from dangerous and unreasonably unsafe products. Plaintiffs thus may sue on the basis of strict product liability, originally a common-law tort that is now written into many US state statutes. A strict product liability case involves liability without fault. A plaintiff need only show harm from an inherently dangerous, defective, or unreasonably unsafe consumer product that has not undergone substantial change since its purchase. A cannot claim exercise of reasonable care to prevent injury or lack of intention to cause harm, as fault is not an issue in a strict product liability case.

In such a case, forensic experts are likely to testify about the inherent dangers of the consumer product that make it unreasonably unsafe and thus defective. An unreasonably dangerous product is one that exceeds the dangers expected by an ordinary consumer or a product for which a less dangerous alternative was economically feasible. In addition, the defense may call on forensic experts to testify regarding substantial changes made to the product between the time the product was purchased and the injury.

Not all injuries from dangerous and unsafe products may result in cognizable product liability claims. The potential dangers presented by some products are outweighed by the benefits they provide to society. For example, many modern prescription drugs have side effects, but the benefits of the drugs outweigh their potential harm, and as long as individuals have received adequate warnings, product liability cases involving such drugs are unlikely to be successful.

In addition, the dangers associated with other products, many of which have great utility, may be commonly known. These products are unavoidably dangerous, and there are no reasonable alternatives for making these products safe for their intended and ordinary purposes. Warnings of known dangers are unnecessary. A person harmed by such a product assumes the risk of harm, and a lawsuit based on product liability is usually dismissed. For example, everyone knows and expects that a knife is sharp; therefore, a person needs to be careful in using a knife to avoid harm.

Negligence

The tort of negligence requires proof of fault. Negligence requires of four elements: that there was a reasonable duty of care owed by the defendant to the plaintiff to provide a safe product; that the defendant breached that duty of care; that the plaintiff suffered harm as a result of the breach; and that the breach was the foreseeable and proximate cause of the harm, with nothing else intervening that could be blamed for the harm. Many things can go wrong with products in the chain of distribution. Manufacturers may fail to exercise due care in designing, assembling, inspecting, and testing component parts and consumer products before releasing them for sale in the marketplace. A retailer may carelessly sell a product that lacks adequate warnings for the ordinary consumer. Moreover, in some cases a claim could be based on negligence per se because a defendant failed to comply with statutory laws, such as providing required information on a food product label.

To succeed in a negligence action, the plaintiff must offer proof regarding the party responsible for causing the harm. Forensic experts are asked to develop this causal evidence and to determine whether the harm was foreseeable. Experts may also testify about the standard of care that is reasonable and expected of those who sell or lease similar products.

In 2024, a Pennsylvania jury awarded $2.25 billion to a 49-year-old man who developed non-Hodgkin's lymphoma after using Roundup weed killer on his property for 20 years. The jury concluded that Monsanto and its parent company Bayer were negligent because they failed to warn consumers of the dangers of using Roundup.

Misrepresentation

Misrepresentation is generally a tort action, although misrepresentation may also be alleged in a contract or warranty count. If misrepresentation is based on a careless act or an accident, the plaintiff must prove the elements necessary for negligence. However, if the misrepresentation is intentional or reckless, such as failure to recall a defective product from the marketplace with knowledge that the product is defective and potentially harmful, then the misrepresentation is based on fraud.

To prove fraudulent misrepresentation, a plaintiff must show that the defendant knew or was reckless in making affirmative statements about a product’s quality that were not true or in concealing or failing to discover defects in a product that would be important and material to a consumer. The consumer must reasonably rely on the defendant’s material misrepresentations in deciding to buy or lease the product or in continuing to use the product. The consumer’s reliance on the misrepresentations must result in a detriment—a personal or property harm caused by the product. Generally, a person who did not purchase the product is unable to sue on a theory of misrepresentation because there is no proof of reasonable reliance on a misrepresentation.

Breach of Warranties

The final cause of action comes out of the commercial world of contracts, warranties, and a uniform statutory law known as the Uniform Commercial Code (UCC). At least three separate warranties are governed by the UCC: an express warranty, the implied warranty of merchantability, and the implied warranty of fitness for a particular purpose. A breach of any of these warranties relied on by a consumer in deciding to purchase or lease a product may provide the basis for a product liability claim. Sellers and lessors of products may exclude some or all of the warranties, although federal and state consumer protection laws may limit the ability to exclude all warranties and thus avoid liability for defective consumer products.

Sellers and lessors of products provide express warranties in many ways. A person expects a product to conform to models and samples. In addition, catalogs, advertisements, brochures, pictures, diagrams, and specifications of features are generally considered express warranties of what the consumer expects, even if no warranty was intended. Oral affirmations and written contract provisions made for the purpose of selling or leasing a product are also considered express warranties. Affirmations may include descriptive terms and often pertain to quality, how the product will perform, and conditions that may limit the express warranty. Purchasers may also infer express warranties because of a seller’s or lessor’s conduct that enticed them to buy or lease a product.

The implied warranty of merchantability means that the product must meet industry or government standards for similar products. The product must adequately perform and meet the expectations of a typical consumer. For example, a new car should enable a person to travel between locations. Some products must also be wholesome and safe for consumption before they are considered merchantable. If a person finds pieces of glass in a jar of baby food, the food clearly does not meet the consumer’s expected quality standards. A consumer might expect to find a fish bone in a bowl of freshly made fish chowder, but not in fish sandwich made from a frozen fish fillet.

Some people purchase or lease products after seeking input from sellers or lessors. In such a case, the purchaser of the product wants to make sure that the product will satisfy specific needs and relies on the skill and expertise of the seller or lessor in deciding to purchase or lease the product. A consumer who is told that a product will meet specific needs has an implied warranty of fitness for a particular purpose that is breached when the product proves to be unfit for the intended purpose.

Defenses

In product liability litigation, several defenses are available to defendants to counter the multiple theories on which such cases are based. One defense is that the injured person abnormally misused the product and did not follow instructions for use or heed danger warnings. If, however, the misuse was foreseeable, this defense is not likely to be effective and the defendants are obligated to provide warnings.

Another defense might be assumption of the risk—that is, the defendant argues that the person claiming harm from a defective product was fairly warned of and understood the dangers associated with the product. The defendant must prove that despite the risks associated with the product, the injured plaintiff decided voluntarily to purchase or use the product and thus assumed any risk of harm from the product.

Contributory negligence is a common-law defense that bars all liability if a plaintiff contributes in any way to an injury from a product. Modern laws allow for comparative negligence as a defense, which is not as harsh as contributory negligence. Under the comparative negligence defense, plaintiffs who bear some responsibility for their own injuries from defective products have their damage awards reduced in proportion to their negligence when compared with the defendants’ negligence in producing and selling dangerous and defective products.

Finally, most manufacturers that discover defects in their products attempt to limit their liability. If those in the distribution chain use reasonable efforts to notify purchasers of product defects, such as by publishing notices of product recalls in generally circulated newspapers or magazines or sending letters or notices of product recalls or defects to known purchasers, the purchasers are obligated to have the defects corrected. Purchasers cannot simply ignore such notices and file product liability claims if they are subsequently injured by the recalled products.

Forensic Expert Standards and Evidence Preservation

Product liability cases are quite complex, and forensic experts engage in many types of analyses to prove liability or to provide evidence for the defense. Expert witnesses, however, are subject to the so-called Daubert standard, a test laid out by the US Supreme Court that requires a court to determine the reliability and credibility of scientific evidence based on objective standards, including the replicability of study results and the general acceptance by scientific peers of the expert’s evidence or method of analysis. The Daubert standard arose from three Supreme Court cases from the 1990s: Daubert v. Merrell Dow Pharmaceuticals (1993), General Electric Co. v. Joiner (1997), and Kumho Tire Co. v. Carmichael (1999).

Plaintiffs must also be sure to preserve defective products once they have caused harm. It may be necessary for a plaintiff to obtain a court order to gain control and possession over the product. If a plaintiff loses control over a product, it may be destroyed or altered, thus seriously compromising the ability of forensic experts to determine whether the injury was the result of a defective product.

Bibliography

Bieber, Christy and Adam Ramirez. "What Is Product Liability? (2024 Guide)." Forbes, www.forbes.com/advisor/legal/product-liability/what-is-product-liability/. Accessed 19 Aug. 2024.

Derthick, Martha A. Up in Smoke: From Legislation to Litigation in Tobacco Politics. 3d ed. Washington, D.C.: CQ Press, 2012.

Geistfeld, Mark A. Principles of Products Liability. 2d ed. New York: Foundation Press, 2011.

Goodden, Randall L. Product Liability Prevention: A Strategic Guide. Milwaukee: ASQ Quality Press, 2000.

Kiely, Terrence F. Science and Litigation: Products Liability in Theory and Practice. Boca Raton, Fla.: CRC Press, 2002.

Owen, David G. Products Liability in a Nutshell. 9th ed. St. Paul, Minn.: West Academic, 2015.

Owen, David G. Products Liability Law. 3d ed. St. Paul, Minn.: West Academic, 2015.

Samuel, Andrew E. The Winning Line: A Forensic Engineer's Casebook. London: Springer, 2007.

Stallard, Eric, Kenneth G. Manton, and Joel E. Cohen. Forecasting Product Liability Claims: Epidemiology and Modeling in the Manville Asbestos Case. New York: Springer, 2004.

Sylla, Zenebou and Elizabeth Wolfe. "Bayer Ordered to Pay $2.25 Billion After Jury Concludes Roundup Caused a Man's Cancer, Attorney Says." CNN, 30 Jan. 2024, www.cnn.com/2024/01/29/us/roundup-cancer-verdict-philadelphia-bayer-monsanto/index.html. Accessed 19 Aug. 2024.