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DANGEROUS PRODUCTS - Not Just Someone Else's Problem Anymore

Dec 1, 2000 In the past years, the average consumer has learned that defective products which cause serious injuries, or even death, are not simply scattered randomly about the marketplace. Millions of defective Firestone tires, tens of millions of doses of hazardous prescription (Rezulin, Propulsid, Fen-Phen) and non-prescription (all products containing phenylpropanolamine (PPA) drugs and hundreds of millions of dangerous vertical window blinds were pulled from the market or recalled in the first ten months of 2000 alone.

No longer are people viewing serious product related accidents as something that always happens to the "other guy." In fact, in today's world, the likelihood is that every man, woman and child in America is routinely exposed to any number of dangerous or otherwise defective products on a daily basis. Escaping injury has thus become little more than a game of chance.

The following information is intended to help our readers better understand the various types of "defects" they encounter, the ways in which manufacturers may escape liability and what consumers can do to protect themselves from harm.

I. The various ways in which a product may be defective.

A. The defectively designed product. Simply put, a defectively designed product is a bad product.

Since the design itself is defective, each and every one of the products in question is defective from the moment it is manufactured. Thus, a container designed to hold gasoline would suffer from a "design" defect if the material chosen for the container is one that melts when exposed to gasoline.

In situations involving "design" defects, very little can be done to keep the product on the market. Unless the use to which the product is placed can be changed in such a way as to avoid any danger from the defective design, the product must be recalled and modified or destroyed. In the example above, the container might remain on the market if it can be re-labeled to hold water only. If it is recalled and modified by lining it with a substance that is not affected by gasoline, it might be re-marketed. However, if these options are neither economically feasible nor capable of being produced, the containers would have to be destroyed.

Unfortunately, most defectively designed products are not as easy to identify as the melting gas container example above. Often, the product will be widely marketed for a substantial period of time before its safety is questioned. Even then, the manufacturer often takes the position that there is nothing wrong with the product. This position can be based on any number of reasons, such as:

1. The product was not defectively designed. Paid experts can always be found on both sides of any argument concerning highly technical issues. Product design is not exception.

2. Any injuries came about as a result of the product being misused.

3. Any injuries came about as a result of failures to follow adequate warnings.

4. Any injuries came about as a result of substantial modifications made to the product and/or its safety features after it left the manufacturer.

B. The defectively manufactured product.

Defectively manufactured products are those which, even though properly designed, are manufactured incorrectly. The defect may extend to all of the products in question or to only one of them.

The essence of a "manufacturing" defect is that a mistake was made somewhere in the manufacturing process. Thus, in the gas container example, assume the design called for the proper material to be used and that 100,000 containers were made with that material. However, because of a flaw in the machinery used to seal the containers, a small puncture is made in 1%, or 1000, of the containers. As a result, the containers with the punctures present a serious fire/explosion risk when filled with gasoline.

The above scenario is a classic example of a "manufacturing" defect. Since the issues of design, misuse, warnings and modification play no role in this type of defect, a manufacturer has a much more difficult time defending itself against such claims.

Thus, if a fire or explosion is caused by gas leaking from the container, the manufacturer is more limited in its defense. It may attempt to show that: (1) the fire or explosion was caused by something else; (2) the container in question was not one of the defective ones, or (3) the puncture was caused after the container left the manufacturer.

C. Defects resulting from inadequate, improper or otherwise deficient warnings (including the absence of warnings).

When determining whether a given product is "defective", an important consideration is the nature and extent of any warnings that accompany the product when it is marketed. While many products are relatively safe and do not need any warnings, most products require some type of warning in order to avoid injuries or other damage when they are used.

Warnings may take many forms such as:

1. How to use the product properly.

2. How not to use the product.

3. When or when not to use the product.

4. Things to avoid doing when using the product.

5. Conditions to avoid when using the product.

6. Bi-lingual or multi-lingual.

7. Pictures or drawings.

8. Safety equipment required when operating or using the product.

9. Assembly instructions which must be followed.

10. Age, weight or height requirements for the user.

11. Video tape.

12. Possible adverse or allergic reactions associated with exposure or ingestion of the product.

13. Temperature, ventilation, electrical, fuel, lighting or other requirements.

14. Explanation of safety devices incorporated into the product and the dangers involved in by-passing, disconnecting or removing such devices.

Manufacturers faced with warning related products liability claims usually take the position that the warnings were adequate or that they were either ignored or not followed properly. Products liability cases involving the adequacy of warnings are often the most hotly contested since the criteria involved are often quite subjective in nature.

II. Defenses often utilized by product manufacturers.

Rarely does a manufacturer (simply) concede that one of its products is dangerously defective. It usually requires successful litigation by consumer advocacy groups or persons injured by the product that is supported by the testimony of qualified experts to establish the defective nature of any given product. Such judicial determinations often take many years of litigation and appeals to reach a conclusion.

In certain situations, government agencies are empowered to make administrative findings regarding product safety and marketability. Such proceedings may result in a product being recalled or even pulled from the market completely. As with litigation, however, administrative action can also be quite time consuming.

Regardless of the method by which the safety of a product is challenged, however, manufacturers can be expected to defend themselves quite vigorously. A single defective product can cause a manufacturer to suffer enormous financial loss or even bankruptcy. It may even destroy the public's confidence in a company that took decades to establish. The backlash from just one dangerous product could even effect sales of unrelated products made by the same company or similar products made by competing companies despite the fact that these other products are perfectly safe.

Since the stakes are so high, manufacturers conduct extensive investigations of all serious claims using highly qualified experts. The goal of the manufacturer is to prove its product is safe. While this may be done by disproving the claims made against it, a manufacturer often goes on the offensive and seeks to prove one or more of the following defenses in order to avoid liability.

A. Misuse: A manufacturer may claim that a particular accident or injury came about as the result of the misuse of its product. Some misuses are obvious, such as using chlorine bleach as a mouthwash or a chain saw to cut your fingernails. In such cases, the manufacturer will prevail, however, in other cases, the "misuse" is not so clear.

When it is reasonably foreseeable to a manufacturer that a particular product will be misused in a certain way, the manufacturer may be held liable. Such foreseeable misuse may require a manufacturer to take steps to modify the product to prevent such a misuse or to add a specific warning against that misuse.

B. Failure to follow warnings: Assuming that the warnings accompanying a product are found to be adequate, a manufacturer may successfully defend itself if it is able to demonstrate that the injured party did not follow those warnings or ignored them all together. This often occurs when people "think" they know how to use a product, fail to re-read warnings after not having used a product for a long period of time, or learn to use a product from someone else without reading the warnings for themselves.
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