PRODUCT LIABILITY ACTIONS AN OVERVIEW Allegations Defenses Due Diligence Risk Management Cynthia...

PRODUCT LIABILITY ACTIONSAN OVERVIEW

AllegationsDefenses

Due DiligenceRisk Management

Cynthia Weiss Antonucci, [email protected] Wall StreetNew York, New York, 10023212 313-5410 www.harrisbeach.com

Cynthia Weiss Antonucci, [email protected] Wall StreetNew York, New York, 10023212 313-5410 www.harrisbeach.com 2

Typical Product Liability Allegations

Strict Product Liability Manufacturing Defect Design Defect Failure to Warn

Breach of Warranty Negligence


Strict Product Liability

The doctrine of strict product liability imposes a duty upon manufacturers, suppliers and distributors of products not to cause injuries to others, regardless of the amount of care used by them to foresee and take steps to avoid the injuries.

No matter how careful or diligent they were, if a product is

defective and causes an injury, the manufacturer is liable under the doctrine of strict liability.

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Negligence

Negligence is conduct that falls below a standard established by law for the protection of others against unreasonable risk of harm. Negligent conduct may consist of either an act or a failure to act by a defendant when there is a duty to do so.

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Breach of Warranty

Warranties are statements by a manufacturer or seller concerning a product during a commercial transaction, the sale of the product. Warranty claims generally require privity, a direct relationship between the injured party and the manufacturer or seller.

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Strict Product Liability

Manufacturing Defect

Design Defect

Failure to Warn

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Strict Product Liability: Manufacturing Defect

The product design is not defective as it came off of the drawing board but the actual product sold did not conform to the product as designed or formulated.

If the product does not match specifications, no amount of due care will excuse manufacturer or distributor from liability.

Plaintiff must prove that product as sold does not match the design for the product and that plaintiff’s injury was proximately caused by the manufacturing defect.

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Truck Stands as Designed:

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Truck Stands as Sold

Defective


Strict Product Liability: Design Defect

Design defects occur where the product design is inherently dangerous or useless no matter how carefully manufactured.

Plaintiff must prove: Product defectively designed; Injury was proximately caused by the design defect; There was an alternative feasible design for the

product or with the current design the product could have been made safe by a warning.

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The product as designed is flawed Not enough guards; Does not stop quickly enough; No automatic shut off; Guards are removable or not interlocked; Opening too big; Fabric is too flammable; Bicycle lacked headlight; Warning inadequate.

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Courts favor a risk‑benefit test when balancing the risk inherent in a product against its utility and costs. The factors considered include:

The utility of the product to the public and to the individual user; The nature of the product, that is the likelihood that it will cause injury; The availability of a safer design; The potential for designing and manufacturing the product so that it is

safer but remains functional and reasonably priced; The ability of plaintiff to have avoided injury by careful use of the

product; The degree of awareness of the potential danger of the product which

reasonably can be attributed to the plaintiff; and The manufacturer’s ability to spread any cost related to proving the

safety of the design.

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Design Defect…Real Life Example

Plaintiff v Mixer Company

Facts: Plaintiff placed hand in cement mixer while machine moving and amputates fingers.

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Cement Mixer with Cover

Closed



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8. DO NOT lift drum grid while mixer is operating

or engine is running

DO NOT OPERATE UNLESS

7. Engine hood is closed after starting



Mixer kept operating with cover open Label not to operate with cover open inside the cover.

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Warning Label inside open cover



Plaintiff wins Defectively designed because mixer kept operating with cover

open. Injury, severed fingers, was proximately caused by ability to

access moving parts with cover open. Alternative feasible design would be an automatic shut off switch

when the cover was lifted. Warning if properly placed on the exterior of the cover could

have prevented injury.

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Strict Product Liability: Failure to Warn

Generally considered as part of the design defect case;

A product which can cause harm to the user can be rendered non-defective by the placement of an adequate warning;

Is also part of a general negligence case.

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Failure to Warn Defenses: No Warning Necessary

There is no danger or the danger is so open and obvious that the plaintiff should have known.

Some Warning Is it adequate?

Great Warning Exactly what happened.

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Failure to Warn: Risk is Open and Obvious

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Adequacy of the Warning In evaluating the adequacy of warnings look to standards such

as:

Whether the warning adequately indicates the scope of the danger;

Whether the warning reasonably communicates the extent or seriousness of the harm that could result from misuse of the product;

Whether the physical aspects of the warning are adequate to alert a reasonably prudent person to the danger; (Size, Shape, Color or Location)

Whether a simple directive warning indicates the consequences that might result from failure to follow it; and

Whether the means to convey the warning is adequate.

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Adequacy of the Warning

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Warning does not communicate the type or seriousness of the injury

Warning does not contain color highlights or pictograms

Warning is improperly placed. The warning is inside the hood.


Failure to Warn: Real Life Example

Plaintiff v Boom Lift

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Plaintiff operates boom lift under electrical wires, comes in contact with wires and is electrocuted.


Failure to Warn: Real Life Example

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Red ColorDANGER in large bolded

lettering

Pictogram showing hazard

Electrocution HazardSpecifically warns of injury and death if warning not followed

Specifically tells how to avoid injury•Keep equipment more then 10 feet away from electrical lines.•Allowance must be made for user error, boom deflection and electrical lines swaying.


PRODUCT LIABILITY: RISK ASSESSMENTPre-Market Due Diligence Conduct an overview of the current U.S. climate for product liability litigation;

Evaluate company documents including public documents, published scientific materials and competitor materials;

Analyze product labels, warnings, user manuals, and directions/instructions for use to ensure clear warnings and communications with consumers;

Review marketing materials, product brochures, sales training programs to ensure they are consistent with product labeling and are in compliance with applicable laws;

Review contract manufacturer, supplier and vendor agreements and determine that

litigation risks are addressed by indemnity and additional insured requirements;

Identify key personnel who can best serve as company witnesses;

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PRODUCT LIABILITY: RISK ASSESSMENTPre-Market Due Diligence Conduct verdict and settlement research to identify potential exposures, insurance needs and

likely outcomes in the event of litigation;

Outline legal, factual and technical defenses available under case law applicable to products to counter allegations of defect and how to bolster those defenses;

Develop a positive body of evidence that will assist in the defense and a plan to cure the impact of “red-herring/bad document/smoking gun” materials that may exist;

Arrange for insurance coverage for product liability and recall situations;

Plan a strategy for the first few lawsuits, consumer complaint and claims handling before they escalate into costly complex litigation;

Establish litigation hold procedures and retention policies for handling electronically stored information and documents to avoid sanctions for failure to preserve evidence.

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PRODUCT LIABILITY: Defending the Case

Defense themes for Negligence Case and Products Case are the same.

Start early. If there is an accident start your investigation and collection of evidence before there is a lawsuit.

Involve your counsel at the beginning so that the attorney client privilege, work product and privilege of material prepared for litigation control.

Have outside counsel retain the experts and conduct the witness interviews.

Preserve evidence. Do not automatically dispose of or change condition (repair) from time of accident

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Conclusion

The defense of the case is only as good as the evidence your lawyer has to present to the jury.

While the plaintiff has the burden of proof the reality is the juries want explanations and want to know how an accident happened if you are saying it didn’t occur the way the plaintiff said it happened.

By being prepared for trial the majority of your cases won’t be tried either because the plaintiff will know that you will win the case, or because you will know that you can’t.

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Conclusion

Questions?

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PRODUCT LIABILITY ACTIONS AN OVERVIEW Allegations Defenses Due Diligence Risk Management Cynthia...

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