Product Liability
Product liability deals with cases involving defective or unsafe products. Manufacturers, wholesalers, and retailers of products can be held liable for damages arising from the use of defective products. Products covered by this area of law, include food, drugs, and real estate, as well as virtually all consumer products. The user who is injured and seeks damages does not need to be the original purchaser of the product. Nor does a person seeking damages have to prove negligence in many cases. Product liability frequently is a question of strict liability: that is, if the product is defective and that defect caused injury, the injured user may sue for damages as long as the product was used as it was meant to be used and not substantially changed from its original condition.
If the injured user was using the product in a manner not intended by the manufacturer or retailer, or had altered the product so that safety features were disabled, it may not be possible to prove that injuries were caused by defects in the product. The defendant may be able to successfully claim that the injuries were caused by the acts of the plaintiff. Questions of negligence and breach of warranty are also grounds for a claim for damages under product liability. In the case of negligence, if it can be shown that a company was negligent in testing its product adequately or in supplying directions for its use, the injured party probably has grounds for filing suit. Similarly, a manufacturer implies a warranty for fitness of use and freedom from defect when an item is sold. If the item proves to be defective, or is unfit for the purpose intended, an injured user can file a product liability case. In a case of negligence, it is important that the plaintiff be able to show that the product was defective when it left the control of the party he is suing. It is not possible to hold someone liable for a defect that occurred after that party had control over the product.
In product liability, there are various areas of defects that can occur. If a claim of strict liability is to be pursued, the injured party will need to show that the product was unreasonably dangerous for its intended use, due to a defect. There are generally three areas in which a product can be unreasonably dangerous:
- The manufacturer or seller can fail to warn about dangers associated with the products use. Manufacturers and sellers are expected to give adequate warnings about possible dangers, and to provide clear and adequate instructions of use. Failure to do so can cause a useful product to become deadly. For instance, coolants used in automobiles are extremely toxic – failure to print warnings of this toxicity on the product labels could lead to an accidental poisoning and thus to a suit for damages.
- The product may have a design defect. This means that the product is manufactured with a defect, even if it is assembled perfectly. An example would be a car gasoline tank that is designed with weak walls such that an impact can rupture the tank and cause the car to catch on fire, even when the tank is correctly assembled and installed.
- A manufacturing defect exists when an otherwise safe product is rendered dangerous because it is assembled improperly. A car whose wheel is installed with missing or cross-threaded bolts may lose a wheel at high speed, injuring or killing the driver and passengers. If it is proved that the car was manufactured with that defect, the manufacturer will be liable.
In all cases of product liability, it is essential to the success of the case that the product be preserved and that all paperwork showing the origin of the product be made available. Receipts showing purchase, any repair records, etc., can be vital to building a successful case.
Consumer Protection
Product liability deals with cases involving defective or unsafe products. Manufacturers, wholesalers, and retailers of products can be held liable for damages arising from the use of defective products. Products covered by this area of law, include food, drugs, and real estate, as well as virtually all consumer products. The user who is injured and seeks damages does not need to be the original purchaser of the product. Nor does a person seeking damages have to prove negligence in many cases. Product liability frequently is a question of strict liability: that is, if the product is defective and that defect caused injury, the injured user may sue for damages as long as the product was used as it was meant to be used and not substantially changed from its original condition.
If the injured user was using the product in a manner not intended by the manufacturer or retailer, or had altered the product so that safety features were disabled, it may not be possible to prove that injuries were caused by defects in the product. The defendant may be able to successfully claim that the injuries were caused by the acts of the plaintiff.
Questions of negligence and breach of warranty are also grounds for a claim for damages under product liability. In the case of negligence, if it can be shown that a company was negligent in testing its product adequately or in supplying directions for its use, the injured party probably has grounds for filing suit. Similarly, a manufacturer implies a warranty for fitness of use and freedom from defect when an item is sold. If the item proves to be defective, or is unfit for the purpose intended, an injured user can file a product liability case. In a case of negligence, it is important that the plaintiff be able to show that the product was defective when it left the control of the party he is suing. It is not possible to hold someone liable for a defect that occurred after that party had control over the product.
In product liability, there are various areas of defects that can occur. If a claim of strict liability is to be pursued, the injured party will need to show that the product was unreasonably dangerous for its intended use, due to a defect. There are generally three areas in which a product can be unreasonably dangerous:
- The manufacturer or seller can fail to warn about dangers associated with the products use. Manufacturers and sellers are expected to give adequate warnings about possible dangers, and to provide clear and adequate instructions of use. Failure to do so can cause a useful product to become deadly. For instance, coolants used in automobiles are extremely toxic – failure to print warnings of this toxicity on the product labels could lead to an accidental poisoning and thus to a suit for damages.
- The product may have a design defect. This means that the product is manufactured with a defect, even if it is assembled perfectly. An example would be a car gasoline tank that is designed with weak walls such that an impact can rupture the tank and cause the car to catch on fire, even when the tank is correctly assembled and installed.
- A manufacturing defect exists when an otherwise safe product is rendered dangerous because it is assembled improperly. A car whose wheel is installed with missing or cross-threaded bolts may lose a wheel at high speed, injuring or killing the driver and passengers. If it is proved that the car was manufactured with that defect, the manufacturer will be liable.
In all cases of product liability, it is essential to the success of the case that the product be preserved and that all paperwork showing the origin of the product be made available. Receipts showing purchase, any repair records, etc., can be vital to building a successful case.
For more than 100 years, asbestos has been used in building products, shipyards, and factories. It has been an airborne presence affecting millions of workers. Even those who do not work in an area where asbestos fibers are found can be affected by fibers brought home on clothing by other family members. With a latency period of 20 to 50 years, asbestos is the cause of diseases such as mesothelioma, asbestosis, and lung cancer many years after the initial exposure. It is estimated that as many as 21 million workers have been exposed to asbestos in the workplace in the last 50 years and nearly 3,000 new cases of disease attributable to asbestos exposure are diagnosed each year.
Claims of damage related to asbestos exposure were filed as early as 1929, when the dangers of such exposure were first noted. Since then, hundreds of suits have been filed against the manufacturers of asbestos products, charging negligence, design defect, and failure to warn, and millions of dollars have been awarded in damages.
It is now generally accepted that tobacco-smoking is directly responsible for more than 80% of lung cancer cases, as well as being a major contributor to emphysema, chronic bronchitis, coronary heart disease and stroke, as well as respiratory tract infections in children exposed to second-hand smoke. Mothers who smoke have a higher incidence of poor birth outcomes, including low birth weight babies. Second-hand smoke is also known to contribute to respiratory illnesses and even lung cancer in those who never used tobacco.
With all these facts, it is hard to understand why anyone would continue to use tobacco. The answer is nicotine. Nicotine has been proven to be addictive in human and animal studies. A person who uses tobacco can become addicted very rapidly and find it extremely difficult to quit. Nicotine, upon entering the bloodstream, will affect brain activity, muscle relaxation, and cardiovascular and hormonal responses. While it is not the direct cause of illness, it is the “Hook” which keeps the user exposed to tobacco.
Tobacco smoke harms everyone exposed, whether smoker or second-hand victim. The effects of smoking are massive, killing more people each year than fires, murders, suicides, AIDS, alcohol and drugs combined.
For many years, cigarette companies denied that smoking was a health hazard or addictive. The product was aggressively marketed, especially to young people, and the under 18 age group is still one of the largest user groups. Information which has been produced in the last few years shows that the companies did know that nicotine was addictive and some companies even added extra levels of nicotine artificially to their product.
Litigation with cigarette companies was unsuccessful until 1996, when several states filed suit against a company which agreed to a settlement. More litigation has since taken place with some success and even more is expected.
Defect hip and knee joint replacement implants are all too common. Defective implants and joint components can require multiple, extensive surgeries to correct, cause years of pain, and the injuries they cause can be permanent. Several manufacturers have produced defective implants. Some of the defective implants have been recalled. Typically the problems involve some sort of failure of the device, but contamination with Staph bacteria has also been a problem with one manufacturer.
Defective Implant Problems
Hip and knee replacement implants can be defective in many ways. For example:
- Poor quality components may chip or break causing the implant to malfunction and/or causing injuries.
- In 2000, Inter-Op joints, made by Sulzer Orthopedics, were recalled due to oil lubricant residue that prevented them from bonding with the bone.
- In 2003, Smith and Nephew cementless implants were recalled because of a design defect in which the surface of the implant did not provide proper bonding with the bone.
- In 2007, the FDA discovered problems with manufacturing and quality control at the Stryker Corporation manufacturing facility. The inspectors also discovered that the facility was contaminated with staphylococcus bacteria.
Problems that patients with defective implants have experienced include:
- Broken and fractured bones
- Pain
- Limited movement of the joint
- Difficulty walking
- Squeaking or noisy joint
- Components that break or chip
- Uneven wear
- Implant that does not bond to the bone
- Staph infection
- Surgery to replace defective implant
- Surgeries to repair damage caused by defective implants
Compensation for Your Injuries
Many, but not all, defective implants have been recalled. If you have been injured by a defective implant you may be entitled to compensation for your medical bills, pain and suffering, disability, and more.
Each case is unique and there are many factors to consider such as how long it has been since the implant was placed, whether the implant has been recalled, and why you needed the implant and what type of procedure you required, and much more.
Transvaginally placed surgical mesh bladder slings are used to treat stress urinary incontinence and pelvic organ prolapse in women. In 2008, the Food and Drug Administration (FDA) said it had received over 1,000 reports of serious complications associated with the bladder slings. At least nine different companies who make the slings have reported complications with their product or the procedure used to place it.
How and Why the Mesh is Used
The surgical mesh bladder slings are used to treat stress urinary incontinence (SUI) and pelvic organ prolapse (POP).
In SUI a small amount of urine sometimes leaks out during moments of physical activity. POP is a condition in which the bladder, uterus, bowl, or rectum has dropped from its normal position and it pushing against the vaginal wall. It can involve one or more of the organs. Muscles normally hold these organs in place, but these muscles can be weakened by childbirth or surgery.
Surgical mesh, used to support the bladder or other organs is placed through an incision in the vaginal wall. The procedure is considered minimally invasive, but now there are reports of very serious complications.
Complications of Vaginal Mesh and Bladder Slings
Complications associated with transvaginally placed surgical mesh include problems with the product and problems with the placement procedure. Complications during the procedure can include:
- Bowel perforation
- Bladder perforation
- Blood vessel perforation
Complications arising after the procedure can include:
- Erosion of the mesh through the vaginal epithelium into the vagina
- Vaginal scarring
- Infection
- Granuloma formation
- Persistent vaginal discharge
- Pelvic pain
- Dyspareunia – severe pain during intercourse
- Vaginal fistulas – abnormal pathways connecting the vagina to organs such as the bladder, colon, or rectum
- Urinary problems
- Recurrence of SUI or POP
Injuries Caused by Defective Vaginal Mesh and Bladder Slings
Women who undergo surgery to place bladder slings are told that it is a safe, minimally invasive procedure. Typically an out-patient surgery, the procedure itself takes only a few minutes to perform.
It sounds simple and safe, but vaginal mesh and bladder sling complications can cause permanent injuries, chronic pain, inability to have sexual relations, and severely diminished quality of life. Treatment typically involves surgeries, some to remove the mesh and some to treat other problems caused by the mess. Removing the mesh can require multiple surgeries and may never be entirely successful.
If you or a loved one is in need of legal assistance, call The Shamy Law Firm at 732-800-1090 or submit an online questionnaire. The initial consultation is free of charge, and if we agree to handle your case, we will work on a contingency fee basis, which means we get paid for our services only if there is a monetary recovery of funds. In many cases, a lawsuit must be filed before an applicable expiration date, known as a statute of limitations. Please call right away to ensure that you do not waive your right to possible compensation.
