Articles Posted in Product Liability

By Anthony Gair

A. COST

Product liability cases are different from general negligence cases and even medical malpractice cases for several reasons. First and foremost is the cost involved in litigating these cases. The costs involved for the plaintiff’s attorney can be astronomical. It is not unusual to accumulate well over $100,000.00 in expenses prior to trial. Obviously, much more may be expended should the case proceed to trial. Thus, when you, as a plaintiff’s attorney, are considering the representation of an injured plaintiff, the first question that must be answered is whether it is worth the cost, time and resources that will have to be put into the prosecution of the case. It is suggested that, with some exceptions, a case not be undertaken unless it has a value in excess of seven figures. However, if you are dealing with a product with a documented manufacturing flaw or defect which you know has been previously litigated or recalled, the potential value of the case can be less. Similarly, in a design defect case, if there has been a product recall, the same applies. Further, if you have previously successfully litigated a case involving the same product there is no reason not to take it, even if it is not a seven figure case.

The plaintiff’s attorney must also understand that manufacturers are proud of their products and will not simply roll over and play dead. Many manufacturers have defense firms on retainer to handle cases brought against them throughout the country. These attorneys know the product involved, are generally highly experienced and have the best experts at their disposal in addition to the design engineers who designed the product. These national counsel have relationships with local attorneys who also have expertise in defending these cases.

Since most of the cases you will see are those involving alleged design defects and/or failure to warn this article will focus on those types of cases. It is suggested that if the only theory you can come up with is that of failure to warn, unless it is clear cut, you should be cautious about taking the case, since in New York culpable conduct is a defense to a Product Liability case. In practice, if you have a failure to warn case, you will usually have a design defect case as well.

B. TIME AND PUTTING IT TOGETHER

If you undertake to handle a product liability case, be prepared to spend a countless number of hours on it. Not only will you have to learn all there is about the particular product, as discussed further, you must learn the principles of safety design engineering. Similar to a medical malpractice case in which you must learn the area of medicine involved so as to effectively cross-examine the defendant doctors and their experts, the same is true as to the field of design engineering.

The most important first step is to choose the right expert or experts. Under no circumstances pick a generic expert, one that testifies in any type of case. It is imperative that you choose a case specific expert who has actually worked in the industry and will survive a Daubert/Frye preclusion motion.
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Some defectives guidewires manufactured by Medtronic can cause serious injury or death. The voluntary recall initiated by Medtronic in October was recently classified as a Class I recall by the US FDA.

Guidewires are inserted in arteries to guide and place stents. Those being recalled have a coating that can break off and block a blood vessel.

Medtronic initiated the recall after four problems were reported including one patient who suffered cardiac arrest but was resuscitated according to WebMD

Volkswagen is recalling several popular models for the the following reasons:

– In order to prevent electric malfunctions 1.6 million VW, Audi, Skoda and Seat models with dual-clutch gearbox need to have their Synthetic Oil Lubricant replaced with Mineral Oil Lubricant

– 800,000 Tiguan SUV are being recalled to fix a potential defective lighting system

Fear of possible Listeria Contamination prompted several companies to recall their ready to eat salad kits as the Center for Disease Control and Prevention and the U.S. Department of Agriculture and the Food and Drug Administration are working together to monitor and prevent potential Listeria-related illnesses.

In a previous blog we announced that Milwaukee-based Garden-Fresh Foods Inc had recalled close to 100,000 pounds of food in September and October. Last week the FDA issued a third class I recall for the company that included an additional 103,080 pounds of products. A food safety assessment at the facility following the initial recall, indicated that additional products may have been contaminated due to harborage of Listeria monocytogenes within the facility.

Another Class I recall was issued on October 29 for Taylor Farms Maryland and Taylor Farms Texas. Approximately 22,849 pounds of broccoli salad kit products were recalled due to concerns about possible Listeria contamination in the salad dressing.