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Product Liability in a TBI Case

Every year thousands of people in the United States are injured by defective products. Such injuries range from mild to serious and life-threatening; sometimes traumatic brain injuries are due to defective products.  Defective products include the gamut of consumer products, such as defective vehicles, dangerous electrical appliances, unsafe toys, and toxic household chemicals.

Because of the many complex factors in these cases, a whole body of laws has been written to make sure that consumers are properly compensated for injury from defective products, while at the same time protecting manufacturers from unjust lawsuits.

Product liability cases are civil law cases and they are governed by product liability law.

Product liability law frequently figures in TBI cases. Traumatic brain injury can be due to an accident caused by an unsafe vehicle. Unsafe construction equipment, and unstable flooring and other defective construction products can also lead to a traumatic accident which results in brain damage. Defective chemical products and medicines sometimes can also lead to brain injury.

Types of Product Liability Cases

Negligence:

As the name implies, a negligence claim means that the company which manufactured the product was negligent and failed to adequately protect its consumers.Negligence claims require the proof of three factors:

  • Proving that the company has duty to protect its customers. This is not difficult, since all parties selling goods or services have a duty to assure the safety (within reasonable limits) of the products or services they sell.
  • Proving that the company failed in the duty to assure reasonable safety. Ordinarily this is proved by showing that the maker of the product knew the risks, but chose to offer it to the public without informing them or that the risk was such that the manufacturer should have been aware of it and was not.
  • An injury must have occurred due to the manufacturer’s negligence. It is not enough merely to prove that the product is dangerous; the party or parties bringing the lawsuit must have actually been injured by the product.

Strict Product Liability

In some situations, the law stipulates that it is not necessary to prove negligence on the part of the manufacturer. This called strict product liability. In strict product liability cases, all that is necessary is to prove that product caused injury or harm to the plaintiff.

Breach of Warranty

When something which the manufacturer has warranted fails and cause an injury, a breach of warranty suit can be filed. It must be proved that the failure of something under warranty is what caused the injury or the accident leading to the injury.

Who can Receive Compensation under Product Liability Laws?

A product must have been sold in order for it to be covered under the product liability laws. Originally this meant that only the original purchaser of the product could be compensated for an injury caused by a defective product.  Today, most states waive this requirement and anyone who could have “foresee ably” been injured by the product can recover compensation for damages caused by it, as long as the product was sold at some previous point to someone.

Who can be held Responsible for Product Liability?

Anyone in the product’s chain of distribution can be held liable for a defective product. Generally, the manufacturer is the party who bears the brunt of the responsibility, but the party who assembles or installs the product may also be held liable. Anyone who routinely sells the product at wholesale or retail can also be held responsible. Someone who just resells one or two of the used product, for instance at a garage sale, generally cannot be held responsible for product liability.

What Kinds of Defects are covered by Product Liability?

There are three types of defects covered by Product Liability Laws. These defects must be proven to make the product unreasonably dangerous in order to be covered by product liability laws.

Design Defects

An inherent flaw in the design of the product is considered a design defect if it causes the product to be unreasonably dangerous. When a design defect is claimed the plaintiff’s side must sometimes show that this was a result of negligence. If the plaintiff’s side can present evidence of some other cost-effective, safer design which could have been used instead of the dangerous design a strict liability claim may be won. Even without an alternative, safer design, the designer may be liable if it can be proven that the product is extremely dangerous in its current design and should not have been produced.

Manufacturing Defects

When a product does not conform to the manufacturer’s or designer’s specifications it has a manufacturing defect. Manufacturing defects can be caused by a number of things and are generally easy to prove, since the product can be compared to manufacturer’s own standard; however, while proving that a product has manufacturing defect may be simple, proving neglect in such a case may be very difficult. The chain of mistakes that led to the defect may be difficult even for the manufacturer to trace.

Taking this difficult into consideration, the law allows two doctrines which can help plaintiffs obtain justice without proving negligence. In some cases, the doctrine of “res ipsa loquitur” (the thing speaks for itself) may be invoked; the logic behind this is that some negligence must have been involved or the defect would not have occurred. In a product liability case in which res ipsa loquitur is allowed to be invoked, the plaintiff does not have to prove negligence; rather, the defendant(s) must prove that there was no negligence involved.

Strict liability is the second doctrine which can be applied in some manufacturing defect cases.  This also removes the requirement for plaintiffs to prove negligence; all that is necessary is proof that product was defective.

Laws which help plaintiffs in liability cases were put into place because product manufacturers and distributors are in a better position to insure themselves against monetary losses than individual consumers are. Such laws are intended to assure a measure of social justice to innocent victims of defect products.

Marketing Defects

Marketing defects occur when products not properly labeled or have inadequate instructions. Failure to adequately warn consumers of a product’s risk are another marketing defect. Included in this category are cases in which the product is misrepresented, either intentionally or through neglect.

Safety Issues which are Unavoidable

Of course, some products have inherent risks due to their very nature and making them safer would render them useless. An automobile must be enabled to travel at high rates of speed, even though high speed rates increase the rates of accidents. A chainsaw must be able to cut through many types of materials, otherwise it would not serve its purpose. For products such as these, the manufacturer must give sufficient instructions for their proper use, but the risks inherent in the products are not considered unreasonable.

Statutes of Limitations in Product Liability Cases

Any personal injury claim, including product liability claims must be filed by the plaintiff within a certain time period after the injury occurs. The statute of limitations varies from state to state; it is generally two years. When the injury in question is a traumatic brain injury, this statute of limitations sometimes is problematic, since more subtle brain injuries do not always immediately show up.

In addition, in the case of product liability cases, the case may be blocked by the statute of repose in place in some states. A statute of repose means that court actions against a product are barred once the product reaches a certain age.

What Defenses are used in Product Liability Cases?

Statutes of limitations and the statutes of repose are often used as defenses in product liability cases. Another problem for the plaintiff in product liability cases is that the exact parties responsible for manufacturing the product in question must be identified. When the product is manufactured by only one company this is easy to prove, but often the exact manufacturer may be difficult to pinpoint; for example, many drug companies may manufacture the same medication.

To cover the problem of multi-manufacturers in the case of defective medications, an exception to the rule requiring proof of the exact party responsible for making the defective product was enacted. This exception is called “market share liability.” If the manufacturer of a defective drug which caused the injury cannot be pinpointed, each pharmaceutical company supplying the medication will be responsible; the amount of responsibility will be determined by the percentage of the company’s sales of that particular drug in the area where the plaintiff obtained the medication.

Manufacturers of defective products sometimes claim that the plaintiff altered the product once it was purchased and that the change is what caused the plaintiff’s injury; if this is proven, the manufacturer then bears no responsibility for the injury, since it bears no responsibility for the alteration of the product. A similar defense may be used which claims the plaintiff misused the product in a way not foreseen by the manufacturer and thus the manufacturer cannot be held liable for the injury. Some states allow other forms of defense as well.

Experienced Product Liability Attorneys are Essential

An experienced product liability attorney is essential when you have a product liability claim. As you can see from this brief article, product liability law is complicated and requires special legal knowledge. When the defective product has caused a traumatic brain injury, it is even more important to have an attorney with a proven track record of winning product liability cases in which a TBI occurred; traumatic brain injury often displays subtle symptoms and this adds to the difficulty of proving a case. A lawyer experienced in both product liability and traumatic brain injury cases will know how to best prove your claims and win the compensation which you deserve.

If you or someone you love has received a traumatic brain injury or other injury due to a defective product Newsome can help. Our experienced team of product liability and personal injury attorneys understand the hardships of traumatic brain injury; we have helped numerous clients win just compensation for their injuries. Don’t delay; please contact us today. Fill out the free case evaluation form on the right of your screen and an experienced attorney from Newsome will contact you and advise you about your case.

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