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3 Theories for Establishing Product Liability

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What do pesticides, asbestos, and cigarettes have in common? All these products were the subject of product liability lawsuits that eventually resulted in the manufacturers of the products paying substantial damages or settlements. While product liability cases are a distant third place (5%) among personal injury cases — the most common being auto accidents (52%) and medical malpractice (15%), according to the U.S. Department of Justice — they are often the cases that make the headlines because of the number of victims involved and the size of the eventual damage awards or settlements.

Product liability cases usually require an injury attorney to prove that the product was defective and that the defect caused the injuries. Here are the three theories used by an injury attorney to prove a product defect:

Design Defect

A design defect is a defect in the way the product was designed so that no matter how it was used, it was inherently unsafe. Stated differently, a design defect means that a product has no safe use because a hazard was designed into the product. One example is thalidomide, a drug marketed as a cure for morning sickness to pregnant women, which caused severe birth defects in the children born to those pregnant women. In that case, the drug was dangerous for its intended use because the very patients who were at greatest risk, namely pregnant women and their unborn children, were the drug’s sole market.

Design defects, by their nature, can be difficult to prove. Often, a smoking gun memorandum or other document from the product’s designer makes the case. For example, in the silicone breast implant litigations, memoranda were found by the injury attorneys showing that the designers of the implants knew that implants would leak silicone gel. While there was disagreement over whether silicone gel caused any of the injuries attributed to it, the existence of the design defect, that is, that the design of the implants was inherently leaky, was not.

Manufacturing Defect

A manufacturing defect is a defect in the way the product is made so that, independent of the design, it was unsafe in practice. Stated differently, a manufacturing defect is a defect that exists because of the factory, rather than the designer. An example of a manufacturing defect were the Firestone tires that suffered tread separation and led to over two hundred rollover deaths. Examination of the defective tires showed that various strips of material called gauges within the tires were too thin to resist cracking and separation. Importantly, these gauges were too thin to pass Firestone’s own standards. Moreover, these defects were not found by inspectors at the factory before the tires were released to distributors. Therefore, the tires in this case suffered from a manufacturing defect. In other words, the problem was not that Firestone’s standards were too low; this would have been a design defect. Rather, the problem was that Firestone’s factory failed to meet its own manufacturing standards which was a manufacturing defect.

It is important to remember that the measuring stick used for manufacturing defects is not whether the factory was negligent. Rather, it is a form of “strict liability” in which the mindset of the factory workers and management is not relevant. That is, it does not matter whether the problem arose because the manufacturer failed to exercise reasonable care. Rather, it is sufficient to show the existence of a defect that failed to meet safety standards set by the product’s designer.

Warning Defect

A warning defect is a defect in the way warnings and instructions were communicated to the consumer. Again, stated a different way, if a product’s design has a safe use and the product is manufactured to allow for that safe use, that safe use (as well as any unsafe uses) must be communicated to the consumer. An example of a warning defect is tobacco cigarette packaging. One of the allegations in the tobacco litigations was that tobacco companies knew for decades that nicotine was addictive and smoking caused cancer, yet failed to warn smokers. Significantly, this allegation was substantially bolstered by, no pun intended, smoking gun memoranda were found by the injury attorneys confirming tobacco companies knew about the link between smoking and cancer as well as nicotine’s addictive properties.