July 18, 2021
Defective Product Lawyer
A plaintiff who is injured by a defective product may bring a products liability lawsuit under a theory of strict liability or negligence. Under either theory of liability, a plaintiff will need to prove that the product was defective in at least one of three ways. The three types of defects are manufacturing defects, design defects, and marketing defects. Additionally, a plaintiff may be able to bring a lawsuit for a defective product under a breach of warranty theory. Regardless of the type of claim a plaintiff chooses, they will also be required to prove that the defect caused their injury.
A manufacturing defect is present when a product departs from its intended design due to a problem with the way the specific item was made. Thus, a manufacturing defect causes one product to differ from all of the other products in its line. This may occur because of a mistake on the assembly line or contamination at a processing facility. For instance, a worker might use an incorrect bolt to fasten the legs to a chair, making the chair defective due to its manufacturing, rather than its design.
Manufacturing defects differ from design and warning defects because they affect only one or a few of all of the products produced, while design and warning defects affect all of the products in a line. Manufacturing defects are therefore relatively rare. To prove a manufacturing defect, a plaintiff will have to show that the product was dangerous when used as intended and that the product would have been safe if it were manufactured according to its intended design.
A design defect is present when an entire line of products has an inherent flaw in their design that makes them unreasonably dangerous to consumers. Design defects occur even though no errors were made in the manufacturing process and no products deviate from their intended design. Design defects may result from a failure to take foreseeable risks into account when making the blueprint or specifications for the product.
Examples of design defects include SUVs that are prone to rolling over, medical devices that have a propensity to fragment inside patients’ bodies, and pesticides in which the main ingredient is carcinogenic. Often, a plaintiff will need to hire an expert to help establish that a product had a design defect. Proving a design defect typically involves showing that a safer alternative design was available at a reasonable cost.
Marketing Defect (Failure to Warn)
Marketing defects are also referred to as failures to warn. Marketing defects occur when a manufacturer fails to give adequate instructions about the product’s use or fails to warn consumers about a product’s inherent risks. Manufacturers are not required to warn about obvious risks but must warn about others that are unavoidable in using a product. Marketing defects often arise in pharmaceutical cases when drug manufactures do not list the side effects of a medication on the bottle.
To prevail under a marketing defect theory, a plaintiff must show that the manufacturer knew or should have known of the product’s risk, that the risk presented a danger to consumers even if the product was used as intended, that consumers likely wouldn’t discover the danger, and that the manufacturer failed to provide adequate warning of the danger. Further, the plaintiff must have been using the product for its intended use or misusing it in a predictable manner. If the plaintiff was using the product in a manner that was not reasonably foreseeable, the manufacturer will not be liable for failure to warn.
Breach of Warranty
A plaintiff may sue for breach of express or implied warranty. Breach of express warranty occurs when a product is sold with a written warranty and fails to comply with the terms of that warranty, thereby injuring the consumer. Express warranties are often contained in labels, packaging, manuals, or advertising for the product.
Breach of implied warranty usually concerns the implied warranty of merchantability, which warrants that a product is safe for its intended use. Breach of implied warranty might also arise from the implied warranty of fitness for a particular purpose if the seller knows that the consumer will be using its product for a specific purpose.