Product Defects and Failures

Product Defects and Failures

Every year, millions of people are injured or killed by products that were trusted to be safe but were not. The range of products is vast, from diet drugs, children’s toys, prosthetic knees and breast implants, to seat belts, exercise equipment, and simple household products. When you are injured through your proper use of a product, you likely have a case and will be able to recover compensation for your injury and loss.

Our Firm’s Experience in Product Liability Cases

Frei, Mims and Perushek attorneys have successfully tried and settled dozens of cases involving defective and dangerous products. Does your case sound like one of these? Some of these cases were won at trial and others were achieved through pre-trial settlements:

• $2 million for Worker’s Hand Crushed by Unsafe Trash Truck Mechanism
• Child Dies in Hot Tub Suction Entrapment: Case Results in a confidential settlement and new 2007 safety law
• Elastic exercise Cable Snaps, Causing Permanent Eye Injury to Trainer
• $4.87 Million for Victims of Defective Knee Prostheses
• Diet Supplement Causes Damage to Heart Valve
• Training Soccer Ball Defect Results in Teen’s Eye Injury

State Laws Govern Products Liability

There is no federal law on product liability. The public is protected from dangerous products through various federal agencies, like the Federal Trade Commission, Food and Drug Administration, Federal Aviation Administration and several others. In 1972, Congress created the Consumer Product Safety Commission (CPSC) to “protect the public against unreasonable risks of injury or death from consumer products.” Thousands of everyday products fall under the auspices of the CPSC, which establishes both mandatory and voluntary guidelines, researches product hazards, issues product recalls and works to educate the public. However, government agencies rely upon the manufacturer to report injuries and deaths; thus, the manufacturer often polices itself.

While the federal agencies and the CPSC serve a valuable role, it is not where a consumer can turn to earn compensation for injury or death due to defective products. If you’ve suffered damages from your proper use of a product that is defective or failed, then you will need a personal injury firm like Frei, Mims and Perushek to investigate why the product failed, how it could have been reasonably manufactured or designed to avoid injury, and to pursue your claim.

Product Liability: Who is Responsible?

Under product liability law, the product must be reasonably safe for its intended use. Responsibility for a defective product lies in the hands of the manufacturer and all sellers within the distribution chain of the product, including:

• The original manufacturer of the product
• Component parts manufacturer
• Whoever assembles or installs the product
• Wholesale distributor of the product
• The retail store or company that sold the product to the consumer

A Product Liability Claim Rests on Legal Theories

If you been injured due to a defective product, your case rests on one or more of the legal theories of negligence, breach of warranty, or strict liability. However, Virginia is one of only five states that does not recognize the legal theory of “strict liability.” Commercial statutes in Virginia contain warranty rules that also impact your case.

• Negligence involves duty, breach, causation and damages. Briefly stated, this means that it must be proven that the defendant owed the plaintiff a legal “duty of care” and that the defendant breached that duty by not acting in a “reasonably prudent” manner in the manufacture and sale of the product. would act under the same circumstances.
• Breach of warranty, either implied or express, essentially means to break a promise that the product will work and is safe if properly used for its intended purpose. An express warranty is an oral or written promise that the product will perform as described or the manufacturer will fix or replace. An implied warranty is a promise that if the product is properly used, for the purpose for which it was designed or otherwise known to be used, it will be safe.
• Strict liability is not recognized by Virginia law. That’s unfortunate because it is a legal concept that recognizes how difficult it is to prove that a manufacturer was careless in product design or production or that a seller failed to ensure that the product was safe before selling it. In states other than Virginia, like the District of Columbia, it may make a defendant liable whether or not it can be proven that the defendant was negligent in the design or manufacture of the product – all that must be proved is that the product was defective and that the defect caused injury.

How Does Frei, Mims and Perushek Prove Negligence in a Product Liability Case

There is no singular definition for “negligence” in a product liability case, but the analysis usually centers on the product design, installation, use and maintenance. Often, a product was properly designed but improperly installed. Or, it was properly designed and installed but improperly maintained. In other cases, there was a flaw in the design or composition of the product (like J&J ‘s Baby Powder) and/or manufacturing process. Review our case histories to see how our firm has succeeded in product liability cases.

Corporate America Fights Product Liability Claims

Perhaps the most famous product liability case in recent times centers on Johnson & Johnson’s long-popular Baby Powder. In May 2020, Johnson & Johnson announced that it would permanently stop selling its talc-based powder in the U.S. and Canada. Why? While the company claims the decision is part of its response to the COVID-19 pandemic, it comes when Johnson & Johnson has already been hit with billions in verdicts and settlements and faces nearly 20,000 lawsuits over the baby powder’s link to ovarian cancer.

Interestingly, J&J states, “We are confident in our legal strategy and our defense, which is supported by decades of scientific evidence showing our talc is safe and does not contain asbestos. The Company will continue to defend the product at future trials.”

We include this example, not to condemn J&J, but to illustrate how important a claim like this is to the brand. The public trust is important to J&J’s brand and continued success, just as it is to manufacturers and retailers of the product that may have harmed you. That’s why you need an experienced law firm to help steer your products liability case in Virginia.

Do You Need a Lawyer to Pursue Your Product Liability Claim?

The law is complicated. Manufacturers have lawyers on staff or legal advisors ready to manage a liability claim and to convince you that your claim has no merit or to keep any settlement offer as low as possible. Experience matters in a personal injury lawsuit.