VIDEO TRANSCRIPT:
What is Product Liability Law, and When is it Applicable?
Probably the easiest way to start about product liability law is to maybe talk about cases that people have heard of. Some of the more recent cases that people have heard of about product liability law are this Monsanto case, which involves Roundup, a chemical people use to spray on weeds and things like that. This was really prevalent in the news because it was causing cancer. So, people brought a product liability case for that. The cigarette cases, all of the cigarette cases, the tobacco cases that people have clearly heard about were all brought under product liability theories. There were cases against Toyota Motor Corp that people really knew about when gas pedals were sticking. So, they were acceleration cases, cars were just down and taking off on their own. People have heard about that kind of case.
But maybe the most famous one that people hear about is the McDonald’s coffee cup case, which is really misrepresented for a lot of reasons, but in its essence was a product liability case. That the product itself, the coffee and the lid and the container it was served in were defective in some way. So, people hear about product liability cases. And actually, currently, right now we’re hearing sort of a product liability cases about Boeing Airlines. It’s not really product liability cases yet, but it involves product safety. So products, how they’re manufactured, when something goes wrong and how does the law deal with them, are questions that we get all the time as lawyers. And we have to explain to people how those cases work, how they play out. And people have heard about strict liability and things like that about dangerous products.
And essentially product liability comes down to some basics. If a manufacturer, if somebody makes a product that is defective in some way, and it can be defective in a number of different ways, so it can have a defect in its manufacturing process. Like you’re in the factory, and let’s talk about the Boeing case, somebody doesn’t screw on a bolt. That’s what we’ve been hearing a lot about. Okay, so that’s a defect, a manufacturing defect. So, somebody did something wrong in the manufacturing of the product and then it caused somebody harm, somebody got injured because of how it was manufactured. So, that’s one way, a manufacturing defect. Another way could be a design defect. So, you design a product in a way that the design itself is unsafe. Examples of that are in the automobile industry. Let’s say you design a product, let’s say, let’s look at these Toyota cases with an accelerator, with the gas pedal, in such a way that it is designed and it malfunctions and it could stick and then you can present alternative ways of designing it, saying that that’s not the case.
So, you have defects in manufacturer, you have defects in the way things could be designed and then you have another element of product liabilities, is a failure to warn case. The tobacco cases are a great example of that. In the tobacco cases it was revealed, plaintiff lawyers like me or probably were a few of them, not just one guy, were able to find out that these tobacco companies were well aware of the dangers of nicotine and the addictive natures of the cancers and cause things like that. Yet, they were advertising it the exact opposite with Joe Camel and the Marlboro Man and things like that. And they were not telling people that, “Hey, this product could be dangerous to your health.” And obviously, now, all these years later, we think of that, it’s almost elementary that we think of that, but it really stemmed from these cases and those are called failure to warn cases.
So, manufacturers have a responsibility to warn people of the dangers that they’re aware of in their products. And obviously with the cigarettes, they obviously knew that. So these failure to warn cases are really great for people because it resulted in all of these manufacturers of anything, now really putting really clear labels like, “Hey, if you use this this way, this can go wrong.” And stuff like that. So, they have to warn you of the dangers that are inherent in the product. So look, that’s different for a knife or a gun, okay? Because those are dangerous products in and of themselves. So, a gun manufacturer doesn’t have to put a warning on the gun, like, “Don’t shoot yourself.” That’s a dangerous product. But every other product we now take for granted that there’ll be warning signs on them and we shouldn’t take that for granted because that happened as a result of lawyers bringing lawsuits under a failure to warn theory and the courts have adopted that.
And then the last mean branch of product liability law is breach of warranty. And everybody’s heard that, “I have a warranty.” People hear about that all the time, they don’t really know what it is or sometimes don’t know. And what that is, is somebody that makes the product warrants, the promises, that the product will be safe for its intended use. And that’s a big one. So, if you’re using a product and you get hurt by it, you have to be using it in the way that the manufacturer designed it to be used. So that goes, if you are using a chainsaw on a tree, that’s for its intended use, but if you decide to use that on your car or, I don’t know, something else, or on your cell phone, you decide to have fun with it, you’re using it for something that’s not intended and you get hurt, then you probably don’t have a case.
So, you really have these four branches of product liability. You have manufacturer defect, something went wrong in the manufacturing process that made the product dangerous, somebody got hurt. Design defect, somebody designed the product in a way that they should have known it was a danger and there were alternative designs that were safer and not overly costly. That’s a sort of more technical analysis there in design defect. Then you have failure to warn, you didn’t tell me that this could do this to me, and if you did, I wouldn’t have used it that way. And then breach of warranty. These are your four main branches of product liability theory. And then when people hear strict liability, what does that mean? It’s not like a teacher being strict. What it means is that it’s strict liability, meaning that companies are liable if you can prove any of those four things: design defect, a manufacturing defect, failure to warrant or breach of warranty.
If any of those things can be shown that it happened, then a plaintiff doesn’t have to show that someone was negligent in doing it. You just have to show it existed. One of those four things happened, that’s the case and somebody got hurt, then the manufacturer’s strictly liable, means they’re on the hook for that and we don’t have to show negligence. So, what does that mean if you’re a plaintiff? Well, what that means is, let’s say, let’s go with a failure to warn, oh, you didn’t put a warning label on this product that told me it could be dangerous to my health in some way.
Well, in a regular negligence case, you’d have to prove that that happened because of someone’s negligence. So, someone was in a back room and they forgot to write it or they wrote it wrong or they forgot to put the stamp on there. Or let’s take a manufacturing defect, something left a factory without something attached. Well, plaintiff would’ve to go back and prove, well, here’s what it is, Harry on the line fell asleep and forgot to screw this on. You’d have to prove negligence in a normal case, but in a product liability case, you don’t have to show that. You just have to show that one of these four things occurred. Either there was a manufacturer defect, a design defect, a failure to warn, or a breach of warranty. If you show that, manufacturer’s on the hook. That’s product liability in a basic sense.
Should Manufacturers Be sued when something goes wrong?
That’s a great question because here’s what happens. Somebody makes something, a product, well, that product gets manufactured in a warehouse somewhere. Maybe it’s in Vietnam, maybe it’s in Asia, maybe it’s multiple components from multiple different places that are grabbed and put together by a company in Europe and then sold. And then maybe that product finds its way into Walmart or any store and then ultimately gets bought by a customer who gets hurt. And now he goes back up the chain, he comes to someone like me and says, “I got hurt by this product, this gas can exploded.” That’s another very famous product liability case. It was an exploding gas can that somebody manufactured. And the guy goes, “Well, I bought this product and it failed.” Let’s use the gas can example. “It blew up and it shouldn’t have blown up. And I got really badly hurt.”
And a lawyer like me takes a look at it and probably engages an expert, usually engineers, guys that have expertise in this field. And they say, “Yeah, you know what? That product malfunctioned. It malfunctioned either because of a manufacturing defect or it malfunctioned because it was designed improperly or there was not the proper warning on it, or the warranty that was issued was violated by this company. You have a case, this product failed.” I’m on board and now you have all the proof you need. And you go, “Okay, great. Well, let me sue the store that sold it to me,” right? And whatever the store is, Sam’s Hardware, and you go to Sam’s Hardware and they’re gone, they closed, because he bought the product two years ago, whatever the case may be.
Well, product liability law accounts for that. And what it says is that anyone in the stream of commerce that sells a product that is defective in some way by either a manufacturing defect, or a design defect, or a failure to warn, or the warranties breached in terms of its safety to the person using it, anyone along that line can be sued. Now, that sounds strange, right? Because what will happen is, let’s use the Walmart example. Let’s say Walmart sold you this exploding gas can, which was a very famous case. So, you can sue Walmart, and then Walmart says, “We didn’t make this, we bought it from Gas Can Incorporated. You can sue them. And they’re stationed in Europe, you get them.”
And then Gas Can Incorporated says, “Well, we weren’t really responsible because we bought the mechanism on this gas can that actually was the thing that failed. Well, we bought it from a component manufacturer, we didn’t make that. We bought it from a factory, another company, they’re located in China. You can sue them.” Now, that sounds weird, right? Because a lot of people ask me, they say, “Well, why’d the store get sued? They didn’t make it.” And the thing is that the law wants somebody that gets hurt by a defective product to have a remedy because the ultimate user of the product, the customer, the person that’s innocent, is really innocent and that’s the person that we want to protect.
And so, the law gives a very wide berth for plaintiffs like that, or injured people, to recover. And so they say anyone that is in the stream of commerce and that stream of commerce is just like that. Think of it like a stream, a river of commerce, from the beginning of the river all the way to the end. Anyone that’s involved in that process that has this product can be named. Now, you don’t have to name them all, but you can. And that’s a really, really important factor. And the reason it’s an important factor is because oftentimes John from Oklahoma, that gets hurt by some product, it reached the store that’s in New York that sold it or can’t reach the manufacturer that’s in Europe or can’t get the component manufacturer that’s in China, or he can get one, but he can’t get them all in terms of into a court. And I don’t mean get them like do anything to them, but really bring them into a court to hold them accountable for the defect.
And so the law really accounts for that. I actually think it’s a really cool thing because it allows an injured person to really have a remedy. And what that does is it does create confusion sometimes. And I’ve had plaintiffs ask me, I’ve had jurors ask me and say, “Well, wait a minute. I didn’t understand why was the store in the case? They didn’t do anything wrong. They didn’t make it, they just sold it.” And the answer is that the law allows that to happen. And then we’re really not allowed to explain this to jurors, but we wish we could, but we could explain it to our clients. Very typically, the stores and the manufacturer and the component manufacturer, all these people that are in business together, almost all the time have contracts with each other that account for this.
So the store, let’s say the Walmart or the Target that’s buying these products definitely has a contract with whoever sells them that says, “Look, if this thing goes wrong, if something happens and we get sued, you guys will cover us.” The legal word is indemnify. So, you’ll take over and cover the costs of lawyers and if there’s a remedy, in other words, if we lose, then you will agree to pay us. And so, this stream of commerce that has everybody sort of floating down the river on this product, ultimately it really traces back to the responsible party usually. So, these big manufacturers and these big companies and then these big stores all almost always have contracts with each other accounting for this exact situation.
Unfortunately, I wish we could tell the jurors that and say, “Hey, listen, the reason that the dealer of the car,” let’s say, because car dealerships, that happens when brakes fail, right? That’s a perfect example. “Why’d the car dealership get, used car dealership? What’d they do?” Or the gas station that fixed something and it turns out to be a manufacturing defect. Why’d they get named? And they get named because the plaintiff lawyer has to be careful, has to name everybody, and then they’re usually not in any kind of trouble because if the product is found to be defective, because of these contracts, it goes back to the responsible people. So, that’s another interesting aspect of product liability law.
What Responsibilities do Product Users Have?
That’s a really good question and it’s actually an easy answer. A product user, as long as they are using the product for its intended purpose is okay. So, in other words, if you get hurt by a product and you think something went wrong with the product, there was a manufacturing defect or a design defect, or you weren’t warned about it, or you feel like the warranty for the product safety was breached in some way, the only analysis that the law would look at as to you as the end user of the product, is that you were using it for the purposes that you were supposed to use. And that’s a very important concept.
So the law will say, if you misuse a product, then you may be out or you can be found partially responsible. So if you have a blender, let’s say, and you’re like, “Oh, I’m going to blend things,” but you throw in into the blender a piece of metal or a piece of glass, that’s not an intended use of the product. And therefore if you got hurt, you may be completely dismissed, the case may be dismissed, or certainly you could be found responsible as much or more than the manufacturer, even if there was a defect. So even if you, “Oh, look, it was manufactured wrong and I got hurt.” Yeah, but you were not using it in the way the product was intended to be used. And that’s what we call misuse of a product. So, you have to use a product for the way it was intended to be used. And if you don’t, you may be out of luck.
How Do Product Liability Cases Usually Play Out?
Product liability cases play out in court lengthily. They play out in multiple parts. And what I mean by that is product liability cases, when somebody brings one to us, typically it involves a serious injury. So, when a product fails, it’s a vehicle that failed or a kitchen appliance we see. And people tend to get hurt really, really badly. And then the way they play out in court, unfortunately, is product manufacturers are really aggressive defending these cases for a lot of reasons. One is they don’t want to set a precedent, so they don’t want to be either found responsible or resolve a product liability case because then they know, “Well, if we resolve one of these, we’ve got thousands of these things out on the market and that can result in us having multiple lawsuits.” Or it could result in somebody making the complaint or bringing it to the federal authorities that might result in a recall.
So, there is so much incentive on behalf of product manufacturers to not resolve product liability cases. So, oftentimes on their side of the bar, when they’re getting sued, there’s more at stake for them than just the individual plaintiff’s case. And because of that, product liability cases rarely settle too easily. They are vigorously defended by very, very well-funded law firms. And the reason is that the product manufacturers feel like they have way more at stake than just an individual case. And that if they resolve an individual case, the word might get out that, hey, they settled a case for this particular product and then everybody runs to them for this particular product and goes after them. That’s your typical product liability case. And because of that, you really better have a plaintiff lawyer that is well-funded and really knows what he’s doing and is ready for a long battle because that’s typically the way these cases play out.
Probably the easiest way to start about product liability law is to maybe talk about cases that people have heard of. Some of the more recent cases that people have heard of about product liability law are this Monsanto case, which involves Roundup, a chemical people use to spray on weeds and things like that. This was really prevalent in the news because it was causing cancer. So, people brought a product liability case for that. The cigarette cases, all of the cigarette cases, the tobacco cases that people have clearly heard about were all brought under product liability theories. There were cases against Toyota Motor Corp that people really knew about when gas pedals were sticking. So, they were acceleration cases, cars were just down and taking off on their own. People have heard about that kind of case.
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