John D. Winer, San Francisco
A. What Is a Product Liability Case?
A product liability case is a case against a manufacturer of virtually any product and against all those directly in the marketing chain of the product, i.e., wholesalers, distributors and retailers, in which there is a claim of the defective manufacture or design of a product.
B. Strict Liability for Defective Products.
Under California law, a manufacturer, and those in the marketing chain, of a product are strictly liable and legally accountable for defective products.
A plaintiff does not have to prove negligence to prevail in a defective product case. Liability will be found if the plaintiff can prove that the product was defective and there is a sufficient causal connection between the defendant, the product and plaintiff’s injury.
Although a plaintiff can plead negligence in a product liability case, the focus of the strict liability part of the claim does not focus on the “reasonableness” of a defendant’s conduct but, rather, solely on whether or not the product itself turns out to be defective, no matter how reasonable the defendant may have been in making the product.
The courts in California have held that those who have reaped profits by placing a defective product in the stream of commerce, should bear the costs of injuries caused by that product. This is because:
- The manufacturer unlike consumers can anticipate or guard against the recurrence of hazards.
- The cost of injury may be an overwhelming misfortune to the injured consumer whereas the manufacturers can insure against the risk and distribute the cost among the consuming public.
- It is in the public interest to discourage the marketing of defective products.
C. Who Can Be Sued for Product Liability.
As previously mentioned, strict liability can be imposed against “all those directly in the marketing chain,” not only manufacturers but also wholesalers, distributors and retailers.
D. What Products Are Covered under California Strict Liability Law?
i. Almost all products are covered.
Virtually any product is subject to strict product liability law. This would include cars, planes, toys, chairs, refrigerators, perfume, business and industrial machinery, household equipment, furnishings and appliances, clothing, and on and on.
ii. What products are not covered?
The exception to this general rule includes certain “inherently unsafe, common consumer” products and medical devices and prescription drugs.
The “inherently unsafe” exception only applies if the product is “inherently unsafe” and is “known” to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community. This would include products such as sugar, castor oil, alcohol and butter.
Further, there is some limitation on product liability cases against firearm and ammunition manufacturers. The potential of a firearm or ammunition to cause serious injury or death when discharged does not make it defective in design. However, the manufacturer may still be liable if the plaintiff can establish an “improper selection of design alternatives” (see later sections) and if plaintiff can establish an actual manufacturing defect (see later sections).
iii. Immunity from strict liability for manufacturer of medical devices and prescription drugs.
Manufacturers are immune from “design defect” strict liability for injuries attributable to prescription drugs so long as the drug was properly prepared (i.e., there was no manufacturing defect) and accompanied by warnings of its dangerous propensities that were known or scientifically knowledgeable at the time of distribution.
Thus, a prescription drug manufacturer will only be found liable if there was a manufacturing defect (see later sections) or if it was negligent in its design of the drug. Further, a drug manufacturer will be held responsible for failure to warn of known or knowable side effects and risks.
Product liability cases against medical device manufacturers carry the same limitations as cases against drug manufacturers.
iv. Special rules for contaminated food.
Providers of contaminated food may be liable in product liability theories if the injury-causing substance is foreign to the food such as bits of glass or wire. A product with a substance that is natural to the preparation of the food item, such as bones, cannot be considered a defective product. (However, plaintiff may still be able to state a negligence cause of action.)
E. Disclaimer on a Product Does Not Prevent Product Liability.
A product manufacturer cannot necessarily avoid a strict liability claim by placing any type of disclaimer on the product. Some disclaimers may be found to be unenforceable for purposes of product liability law.
F. Strict Product Liability Does Not Apply for Purely Economic Losses.
A defendant can only be found liable under a strict liability theory for physical injuries caused to persons or property and not for purely economic losses. In other words, a plaintiff cannot sue in strict liability in tort for the cost of repair or replacement of the defective product or any consequential lost profits. (However, plaintiff can still sue for negligence, breach of contract and breach of warranty.)
G. When Is a Product Defective?
A product may be defective because of a manufacturing defect, a design defect or a warning defect. Plaintiff needs to prove one of the three types of defects to prevail.
H. What Is a Manufacturing Defect?
A manufacturing defect exists if, when the product left the defendant’s control, it differed from the manufacturer’s intended result or from apparently identical products of the same manufacturer and the product is used in a manner reasonably foreseeable by the defendant, but nonetheless caused plaintiff injury. An example of this type of defect would be an exploding soda bottle.
Plaintiff has the burden of proving that there was a flaw in the manufacturing process, i.e., that the product was different from the manufacturer’s design and was manufactured differently than the prototype.
I. What Is a Design Defect?
Under California law, a product could be manufactured exactly as the defendant intended, yet the product may nonetheless be legally defective because of a design flaw.
Under the law, there are two tests to determine whether a product is defectively designed. A plaintiff need only meet the requirements of one of the tests to prevail.
i. The consumer expectation test — failure to perform safely.
a. What is meant by consumer expectation.
A product is defective in design if it failed to perform as safely as an ordinary consumer would expect (or have a right to expect) when using the product in an intended or reasonably foreseeable manner.
b. Plaintiff must prove the defect in the product caused plaintiff’s injury.
Plaintiff must prove that the defective aspect of the product caused the injury and must produce evidence that the product failed to satisfy ordinary consumer expectations as to safety.
c. Cannot apply test unless expectations of proper product performance is within jurors’ common knowledge.
The consumer expectation test can only be used in cases in which jurors can properly evaluate a product’s safety design based on every day experience of the product’s users.
The question becomes: did the circumstances of the product’s failure properly permit a jury to conclude that the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers?
d. Expert witness testimony is limited.
An expert witness is not allowed to testify as to what an ordinary consumer would or should expect; however, an expert can testify on the issue of whether the product failed as it was marketed or to prove causation between the defect and the injury.
e. Manufacturer’s knowledge of the risk of harm irrelevant.
Evidence that a particular risk of harm was neither known nor knowable to the scientific community at the time of the manufacture or distribution of the product is not relevant to show what the ordinary consumer reasonably expected in terms of safety at the time of injury.
ii. Risk benefit test — inherent dangers outweigh benefits.
a. Risk of harm analysis.
Even if a product meets the consumer expectation test, it may still be found to have a design defect if in light of the relevant factors judged by hindsight, the risk of danger inherent in the challenged design outweighs the benefit of the design.
b. Factors that may determine whether benefit outweighs the risks.
The relevant factors in determining whether the benefits outweigh the inherent dangers of the design include, among other things:
- The gravity of the danger imposed by the design;
- The likelihood that such danger would cause injury;
- The mechanical feasibility of a safer alternative design;
- The financial cost of an improved design;
- The adverse consequences to the product and consumers that would result from an alternative design.
c. Plaintiff does not need to establish foreseeable alternative designs.
In a case involving a risk benefit analysis, plaintiff need only establish causation, i.e., that a design feature of the product was a proximate cause of plaintiff’s injury. The plaintiff does not have to demonstrate the presence of feasible alternative designs to shift the burden to the defendant.
d. Shifting burden — defendant must prove benefits outweigh risks.
If the plaintiff can establish that a feature of the product caused their injuries, the burden shifts to defendant to establish that the benefits of the product design outweighed the design risks.
J. Product Liability for Warning Defects.
i. Failure to provide an appropriate warning creates a defect in and of itself.
A product that is not otherwise defective in manufacture or design may still be considered legally “defective” if a suitable warning about its dangerous propensities is not given or the manufacturer fails to provide appropriate safe use instructions.
ii. Limitations on a manufacturer’s duty to warn.
A manufacturer’s duty to warn man be limited if the dangers are generally known and recognized.
The defendant’s duty to warn only arises if the defendant actually knew of the risks involved at the time of manufacture or distribution or should have known based on scientific knowledge available at the time.
iii. Warning can be defective even if manufacturer unaware of the risk of the exact injury which plaintiff received.
A plaintiff does not have to prove that the defendant knew or should have known of the exact injury risks associated with use of the product for there to be a finding of defective design.
iv. “State of the art” evidence admissible.
In a warning defect case, “state of the art” evidence is admissible since a key issue in the case will be what the defendant knew or should have known regarding the risk of harm.
Defendants are entitled to raise a “state of the art” defense and to introduce evidence that the particular risk of harm is neither known nor knowable by the application of scientific knowledge available at the time of the manufacture and/or distribution.
v. Reasonableness of defendant’s failure to warn irrelevant.
The reasonableness of the defendant’s failure to warn is immaterial in a strict liability case. This is so even where the defendant’s conduct conforms to an industry-wide standard or practice.
vi. Jury usually determines whether warning was adequate.
In most defective warning cases, it is up to the jury to determine whether or not a warning was adequate. Evidence that some users heeded the warning does not establish that the warning was adequate. A jury can still find that the warning was defective.
vii. Situations in which a judge can determine a warning was adequate as a matter of law.
There are some situations in which warnings will be considered adequate as a matter of law, i.e., the finder of fact, the jury, is foreclosed from determining that a warning was inadequate. This includes cases in which:
- The plaintiff never bothered to read the warning.
- The only claimed defect in the warning was that it was written only in English. A warning in English is often all that is required in a strict liability defective warning case.
- Cases in which a drug manufacturer is prohibited from warning of speculative risks by the Food and Drug Administration.
viii. It is usually up to the manufacturer and distributor to make sure consumers receive their warnings.
Generally, the manufacturers and distributors are required to make sure that the required risk warnings or safe use instructions reach the ultimate consumer.
ix. Circumstances when manufacturers and distributors can make a warning only to a middle person.
There are certain products in which a technical expertise is required to make the warning understandable to the consumer or the product itself is too small to include meaningful instructions in lay language.
In these situations, the manufacturer/distributor need only provide adequate warnings and instructions to an intermediary who can reasonably be expected to pass the necessary information on to the ultimate consumers. Examples where warnings to an intermediary may be sufficient include:
- A drug or medical device manufacturer who fulfills its duty to warn about known or knowable side effects and risks by providing adequate warning to the physician.
- A manufacturer of ski bindings was found to have fulfilled its duty to warn about the danger of using the bindings with untreated thermoplastic boots by giving adequate warning to the ski rental shop.
- An airplane manufacturer is not required to directly warn passengers about its plane’s load capacity.
- A bulk sales manufacturer satisfies its duty to advise of dangers by providing adequate warnings to the distributor who subsequently packages, labels and markets the product for consumer use.
K. Plaintiff must Establish Causation.
i. Substantial factor standard.
Under any of the defective product theories, plaintiff must prove that the defect was a substantial factor in causing the injury.
ii. Finding of defective product not enough.
Thus, even if plaintiff can establish a defect in a product, the manufacturer will not be found responsible if the same or similar harm would have occurred even without the defect, for instance, when plaintiff’s own negligence is found to be a “superseding” cause of his injury.
In one case, even though an emergency brake was found to be defectively designed because it was inaccessible to the driver, the driver could not claim a defective product where evidence showed that the brake was non-functional due to lack of maintenance.
L. The Product Misuse Defense.
Product misuse is a defense when the misuse is the actual cause of plaintiff’s injury.
Defendant bears the burden of proving misuse as an affirmative defense.
Misuse may be a defense against a plaintiff who disregarded a warning label or used a product in a manner for which it was not intended; however, the law requires the manufacturer to foresee some degree of misuse and abuse of its product, either by the user or by third parties, and to take reasonable steps to minimize the harm.
M. Comparative Negligence in a Product Liability Case.
If plaintiff can establish that the defective product was a substantial factor in bringing about plaintiff’s injury, his or her own comparative negligence will not eliminate his or her claim but, rather, will reduce the recovery by the proportion of his or her fault. For instance, if the plaintiff is found to be 20% at fault for causing his or her own injury, the verdict will be reduced by 20%.
N. Strict Liability Usually Limited to Manufacturers of Mass Produced Products.
Strict liability is generally limited to those engaged in the production and marketing of mass produced products. However, a defendant engaged in the business of marketing and selling products as part of its full time commercial activity may not usually defend a strict product liability suit on the ground that the particular product was designed to plaintiff’s specifications.
O. Negligence in Defective Product Cases.
Although the standard for proving liability is more difficult, plaintiff can always allege negligence in a product liability case. However, to prevail in a negligence case, the plaintiff must prove that the manufacturer/distributor owed the plaintiff a duty and breached that duty by conduct falling below the applicable reasonable standard of care for manufacturing the product. Thus, the focus of the negligence case becomes the reasonableness of the defendant’s conduct whereas that is irrelevant in a strict liability case.
However, in certain cases, negligence may be a preferred theory of recovery. For instance, while a strict product liability action cannot be maintained where the defect in the product is attributable to standards which have changed since the product was placed on the market, a negligence action may be maintained for the manufacturer’s failure to modify or retrofit the product or to warn users of dangers that become known after the product was manufactured.
Generally, plaintiffs are far better off proceeding on a strict liability failure to warn theory than a claim based on a negligent failure to warn.
Plaintiffs proceeding on a negligence theory must prove that the defendant did not warn of a particular risk for reasons falling below the acceptable standard of care, i.e., what a reasonably prudent manufacturer or distributor would have known and warned about. However, under strict liability the unreasonableness of the defendant’s failure to warn is immaterial. Plaintiff need only prove that the defendant did not adequately warn of a particular risk that was known or knowable in light of generally prevailing scientific knowledge.
P. The Financial Cost of Bringing a Product Liability Case.
Product liability litigation can be extraordinarily expensive. It is not unusual for case costs alone, without attorneys fees, to be several hundred thousand dollars. Therefore, except in cases in which there is a clear manufacturing defect, it is rarely advisable to bring a product liability action unless there is a very severe injury or wrongful death or there have been a number of similar cases against the product manufacturer.
Manufacturers will fight almost every defective product case until the bitter end because of the tremendous consequences of losing a case can have to its entire operations.
Q. Importance of a Thorough Investigation in a Product Liability Case.
It is critical that the product in question be preserved in a state unaltered from its condition at the time of the accident. Therefore, anybody contemplating a product liability lawsuit should maintain the product or immediately give it to an attorney for safekeeping.
This sometimes is problematic in cases against, for instance, automobile manufacturers, when the plaintiff allows his or her insurance company to total the vehicle and sell it for storage. Further, sometimes the vehicle in question is owned by the other driver in an accident. In those cases, it is critical to contact an attorney immediately who will take whatever steps possible to preserve the product in question.
Even if the product is unrecognizable, the remnants of the product should be preserved.
Most attorneys hire an investigator at the very beginning of the case to collect whatever evidence is available at the accident scene and to attempt to take control of the product itself. The defense in a product liability case will attempt to establish that everything other than the defective product caused plaintiff’s injury; therefore, evidence of the events surrounding injury, as well as the product itself, become key aspects of the investigation and later the litigation.
The history of the product must also be carefully investigated. The product may have been altered after it left the manufacturer’s hands and in most cases, this will absolve the manufacturer from liability but may point to another potential defendant.
R. Design Changes and Subsequent Remedial Measures.
As part of an investigation or formal discovery once there is a lawsuit, plaintiff should attempt to determine whether any design alterations, changes in manufacturing materials, new manufacturer warnings or other remedial measures were put into effect since the actual product which injured the plaintiff was produced.
Under California law, evidence that a manufacturer has made repairs, improvements or design changes to a later model of the product is admissible in a strict liability action to prove that the product was defective prior to the change.
Further, a post accident warning released by the manufacturer is admissible evidence of a preexisting product defect for purposes of proving strict liability.
S. Has the Product Injured Other People.
Attorneys have the ability to conduct nationwide and sometimes worldwide research to attempt to learn of other accidents and lawsuits involved in the same product.
Obtaining this information is important for the following reasons:
- The information uncovered by attorneys in prior cases may prove to be invaluable for use in the current case.
- The existence of similar accidents or injuries is relevant to establish that the product was, in fact, defective and to show that the manufacturer had notice of the defective condition.
- On the other hand, evidence showing the absence of prior similar claims or injuries may be introduced by the defendant manufacturer to demonstrate a lack of knowledge — so plaintiff needs to learn of this potential problem in the case.
- The defense will hire an expert who will testify that the product is generally safe — but evidence of prior similar accidents will tend to impeach this testimony.
T. Breach of Warranty in Product Liability Cases.
It is important that the plaintiff collect all of the literature available involved in the product including brochures, instructions, labels and advertising material.
Liability for intentional or negligent misrepresentation may exist where statements in the product literature or marketing brochures prove false.
Plaintiff can maintain an action for breach of express warranty for “any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.”
U. Use of Experts in Product Liability Cases.
In almost every product liability case, plaintiff will have to retain multiple experts to testify in order for the jury to understand the case and for the plaintiff to win the case. It is important that the plaintiff retain an expert with expertise regarding the particular product. In addition, the plaintiff may have to retain experts to explain other factors involved in the accident. Frequently retained experts include metallurgists, mechanical engineers, physiatrists, biomechanical engineers and human factors experts.
V. Wrongful Death Damages in Product Liability Cases.
i. What is the “just damage” rule?
California Code of Civil Procedure section 377 entitles product liability claimants to such damages “as under the circumstances of the case may be just.”
ii. Can the heirs recover monetary damages?
However, California cases have further defined wrongful death damages to include the value of future monetary contributions from the decedent to the heirs and the value of any personal service, advice or training that would have probably been given. This is determined by projecting the amount of money the decedent would have earned in the future but for his or her death.
iii. What emotional distress damages are allowed?
Damages also include compensation for loss of love, companionship, comfort, affection, society, solace or moral support or any loss of decedent’s physical assistance in the operation or maintenance of the home.
iv. Are damages for grief recoverable?
The law does not allow recovery for grief or the pain and suffering of the heirs. Instead, damages are focused on the emotional losses suffered by the heirs.
v. Are damages for decedent’s pain and suffering recoverable?
No. Damages for the decedent’s pain and suffering are not recoverable in either a survival action or a wrongful death case. The only exception to this rule is elder abuse cases in which the estate is allowed to recover monetary damages for the decedent’s pain and suffering.
vi. Are the survivors allowed to recover punitive damages against the defendant?
Punitive damages are recoverable only in a survival action. If the decedent died at the moment of impact, punitive damages, which are damages meant to punish the wrongdoer, are not recoverable.
W. What If the Decedent Was Partially at Fault for Causing His or Her Own Death?
California is a comparative negligence State and, therefore, the heirs are still allowed to bring the case; however, their recovery will be reduced by the percentage of fault that is assigned to the decedent. In other words, if the heirs win a $3,000,000 award, but there is a determination that the decedent was 50% negligent, their recovery will be reduced to $1,500,000.
X. What Damages Are Recoverable in a Non-Fatal Defective Product Case?
In a serious personal injury case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.
The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.
Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.
In product liability cases, evidence of prior similar accidents and injuries will provide powerful evidence for punitive damages. Further, any evidence that the defendant knew that the product was dangerous or defective, yet did not issue a recall, will also help plaintiff achieve a punitive damage award.
Finally, evidence that the manufacturer knew that the product was potentially dangerous, however decided not to make the appropriate design changes in order to reduce the cost of production and increase profits, will also increase plaintiff’s chances of winning punitive damages in a product liability case.
Y. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to the injury. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.
There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.
Z. Punitive Damages.
Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.
AA. Time Limitations.
Generally speaking, a product liability case in tort must be brought within two years of the date of the accident, although the time period may be extended if plaintiff did not discover the defective condition of the product until some time after the date of the accident. Sometimes a longer time period exists if a contract cause of action is brought, but damages may be less. However, plaintiff has a duty to affirmatively try to find the cause of his other injury.
Further, if the case also involves a claim against a public entity, the claim must be brought within six months.
BB. Settlement.
Settlement of a defective product case can be extremely difficult and challenging. To dissuade consumers from bringing lawsuits, manufacturers will sometimes spend millions of dollars in attorney fees and case costs to defend a case.
Sometimes manufacturers will believe they can win a case by merely outspending the plaintiff attorney who usually has to advance the costs of keeping up with the manufacturer.
Unless plaintiff can prove a manufacturing defect, such as a chair falling apart because it was produced without a screw, manufacturers will almost never settle cases without a monumental battle.
Plaintiffs in defective product cases are wise to make an early statutory demand for settlement — not because the manufacturer will pay it — they won’t — but because if a plaintiff wins more than the demand at trial, under California law, they will be able to have plaintiff’s substantial costs paid by the defendant.
This article was authored by John D. Winer. Winer, Burritt & Scott, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.