DEFECTIVE PRODUCTS


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Cincinnati Defective Products Lawyer

Product Liability: Defective and Recalled Products

Product liability is the body of law that provides legal remedy for personal injuries and commercial loss due to defective products being placed in the stream of commerce.  American corporations are not always as vigilant as they should be, and at times put profits before the safety of the general public and allow dangerous and defective products on market without proper testing or warnings. 

Often, an adult or child is injured due to no fault of their own, and only then is a defective aspect of a product discovered. A “product liability claim” is the legal action likely to follow, which seeks compensatory damages from the manufacturer or supplier of defective products.  

The manufacturers of consumer products have a duty to foresee potential injury and properly design and test products before they are released. Companies must also properly warn consumers of any risks associated with their products.

Any failure to protect consumers that results in accidents and injury can lead to product defect lawsuits.

Defective Products Injury & Compensation

When injuries occur due to recalled or defective products, plaintiffs can file product liability injury claims with the assistance of a qualified product liability attorney. If a product is determined to be defective, the company is liable for any foreseeable injuries that are in-part caused by the defective condition of the product.

Rightful compensation can include medical costs, long-term disability in the case of permanent injury, and other damages that may include pain and suffering and lost wages.

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Joe Lyon has 17 years of experience representing plaintiffs in catastrophic injury and wrongful death cases related to recalled and defective products. 

The Firm has handled defective products cases involving asbestos exposure, herbicides, industrial equipment, consumer health products, defective cars, defective motorcycles, auto components, pharmaceuticals, medical devices, home appliances, and firearms.

The Firm handles cases on contingency fees, advancing all costs of the case and accepts the financial risk of the litigation to allow the clients access to court and reduce the financial stress while they focus on their healthcare needs. 

Cincinnati Defective Products Attorney
Helping Families Nationwide

Why Defective Products Cases Are Important

Awareness: Defective Products Are Safety Hazards 

Defective products on the market present safety and health hazards for adults and children. Cheap and defective products may pose fire and burn risks; electrocution, strangulation and choking risks; and severe health risks including increased risk for developing cancer. The public needs to be aware of these dangerous risks.  

Consumer Product Safety: Product Liability Lawsuits Encourage Safer Products

Many defective product lawsuits have had a positive impact on public health and safety. We have witnessed product design changes, recalls, and enhanced warnings as a result of litigation and courageous legal action. In other words, product defect lawsuits make products safer so more families do not suffer the same adverse events. 

Transparency: Defective Products Lawsuits Provide Answers

Defective Product lawsuits provide answers when companies are unwilling to be honest with consumers about the risks and dangers of their products. 

Justice: Defective Product Lawsuits Provide Closure and Financial Compensation 

Product liability lawsuits also provide for a sense of justice to the families along with compensation and potentially financial security for future medical care and lost income.

Understanding Product Liability Lawsuits

What is Strict Liability ?

Strict Liability vs Negligence 

Product liability lawsuits often contain causes of action for strict liability, negligence, and breach of warranty. Strict liability applies different factors than negligence-based claims.

In negligence cases, the actions of the defendant are the focus. In strict liability claims, the focus is on the condition of a product at the time it leaves the manufacturer. 

How is a Product Defined as Defective?

Defective Consumer Products

A product is considered defective if it is unreasonably dangerous for its intended use. A legal cause of action can be based on several types of product defects.

The following are product liability and strict liability claims available in Ohio and in most jurisdictions nationwide:

(1)  Manufacturing or Construction Defect

(2) Defective design and/or formulation

(3) Failure to warn or inadequate warning or instruction associated with the product

(4) Misrepresentation or Fraud

(5)  Breach of Warranty

 

How do you prove design defects?

Defective design product liability cases arise not because a mistake was made during the manufacturing process, but rather because the original design of the product is unreasonably dangerous.

A “risk-benefit analysis” is used to determine whether safer or less-expensive alternative designs were available to the manufacturer.

Federal regulations set minimum standards for the design of many consumer products, and preemption defenses may preclude liability in some situations if the manufacturer follows and obtains federal approval for a product.

Automotive recalls and product liability cases, for example, are usually a result of a defective design. Common cases include the Toyota Brake Recall, Chrysler Gen III seat belt buckle, and lap belt only cases. Some medical device defect lawsuits also hinge on design defects (Metal on Metal hip implants, transvaginal mesh).

Risks:  The following factors are considered under Ohio law when determining the risks associated with the design of a product:  (1) the magnitude of the risk of injury; (2) ordinary consumer awareness of the risk for injury; (3) the likelihood of causing injury; (4) the violation of a private or public standard; and (5) the consumer’s expectation of the performance of the product and level of danger. Ohio Revised Code 2307.5 (B) Product Defective in Design or Formulation.

BenefitsThe following factors are considered under Ohio law when determining the benefits associated with product design: (1) the utility of the product; (2) availability of an alternative design; (3) the magnitude of risks associated with an alternative design. Ohio Revised Code 2307.5 (c)

Defenses for Defective Design(1) a pharmaceutical drug or medical device is not defective by design if it contains an adequate warning of an unavoidably unsafe aspect of the pharmaceutical or medical device; (2) the dangerous aspect is inherent to the product, recognizable, and cannot be eliminated without compromising the product’s usefulness; (3) a lack of a feasible alternative design. 2307.75 (d)(e)(f).

EXAMPLES:

What is a manufacturing defect?

Manufacturing defect issues arise where the product is released from the factory in a manner that deviates from the intended design or specifications.

The defect can be a result of using the wrong materials, including the wrong or completely foreign materials (e.g., Tylenol contamination, food poisoning, damaged car part from factory installation).

As a result of the deviation, the product enters the market in an unreasonably dangerous condition and the consumer is exposed to a product that is defective. Any personal injuries or economic loss that arise from the the defect are compensable under Ohio product liability law and most jurisdictions.

A manufacturing defect is based on a defect that occurred during the manufacturing process. Many auto companies have been involved in this kind of product liability lawsuits in recent years, due to defective airbags, software defects, tire failure, and other dangerous manufacturing errors.

Most manufacturing defect cases are based on a products deviation from the intended specification, formula, performance standards, or design model. In such cases, it may be easy to determine the product did not comply with the intended design.

The product may be recalled as a specific lot is identified as being non-compliant and defective. A product may be defective in manufacture or construction, materials and assembly, and a manufacturer or distributor may be subject to strict liability, even though it exercised all possible care.  Ohio Revised Code 2307.74.


Manufacturing Defect Examples:
What is a failure to warn lawsuit?
Failure To Warn Lawsuits

All consumer products come with necessary and appropriate warnings and instructions for use. If the lack of a warning makes the product and use of the product unsafe, the manufacturer is liable for the failure to place the warning. The most common area of litigation for failure to warn is in pharmaceutical litigation.

Pharmaceutical manufacturers are required to warn of the known or foreseeable side effects and update the warnings in a timely manner. Litigation arises where there is evidence the manufacturer failed to timely update a warning in light of new data or simply ignored the risk and failed to conduct sufficient research to identify and then disclose the risk.

In determining whether a product is defective due to inadequate warning or instruction, evidence must be presented to prove:

  • The manufacturer knew, or in the exercise of reasonable care, should have known about a risk
  • A reasonable manufacturer would have provided a warning of the risk
  • The manufacturer failed to provide the warning
  • The person was injured due to a lack of warning. The same elements apply whether the claim is based on a warning present during the marketing or post-sale warnings.

Defenses to Failure to Warn Claims: (1) the risk was open and obvious or a matter of common knowledge; and (2) in cases of a pharmaceutical drug or medical device, the warning was provided to the prescribing physician (“Learned Intermediary Doctrine”).

Many pharmaceutical companies have been targeted in failure to warn lawsuits for either failing to place warnings on medication guides and packaging or failing to properly test their product before putting it to market.

What are consumer product safety regulations?
Consumer Safety Agencies

Design and manufacturing defects result in thousands of product recalls each year in the United States, initiated by federal consumer safety agencies. Following injury and illness, regardless of recall status, victims and plaintiffs may pursue legal action and contact a product liability lawyer to begin the litigation process. Rightful compensation can be sought and help plaintiffs recover medical costs and other related damages.

Product liability law overlaps with regulatory law, which are the systems of legislative rules and administrative agencies, and part of federal and state governments. These agencies regulate the safety of the products sold to the public. Examples include:

  • The Food and Drug Administration (FDA)
  • The National Highway Traffic Safety Administration (NHTSA)
  • The Consumer Product Safety Commission (CPSC)

The listed government agencies, however, may initiate recalls of dangerous products but do not provide remedies or compensation for damages where an individual is injured due to the defective product in question.

Why should I hire The Lyon Firm?

Our lawyers will help you find the answers you seek.  The Lyon Firm has the experience, resources and dedication to take on difficult and emotional cases, and we help our clients obtain justice for the wrong they have suffered. 

Joe Lyon is an experienced Cincinnati Product Liability Lawyer. The Lyon Firm has many years of experience and success representing individuals and plaintiffs in all fifty states, and in a variety of complex consumer safety matters.  

Product Liability lawsuits can be complex and require industry experts to determine the root cause of an accident or injury. Mr. Lyon has worked with product safety experts nationwide to assist individuals understand why an injury occurred and what can be done to improve their lives in the future. Some defective products cases may go to a jury trial, though many others can be settled out of court.

Mr. Lyon has worked with experts in the fields of accident reconstruction, biomechanics, epidemiology, metallurgy, pharmacology, toxicology, human factors, workplace safety, life care planning, economics, and virtually every medical discipline in successfully representing Plaintiffs across numerous areas of consumer safety law. The Lyon Firm is dedicated to building the strongest product liability cases possible for clients and their critical interests.

Mr. Lyon has obtained numerous seven and six-figure results in defective products cases including: asbestos,  automotive product liability, defective medical device cases, pharmaceutical litigation, firearm defects, home appliances, and toxic exposure.  

The firm’s product recall and product defect cases have involved successfully litigating against some of the largest companies in the world including: General Motors, Ford, Daimler Chrysler, KTM,  Bayer, Merck, Monsanto, Syngenta, GE, 3M, CR Bard, Medtronic, Glaxo Smith Kline, Johnson & Johnson, Boston Scientific, AMS, Biomet, Stryker,  Depuy, Bristol Myers Squibb, Pfizer, Endo Pharmaceuticals, Abbvie, FMK Firearms, AK Steel, Goodyear Tire and Rubber Company, Honeywell International,  JLG, E.I Dupont De Nemours & Company, John Crane, Shell Oil, Union Carbide, Georgia Pacific, & Flowserve.  

What is “Human Factors” Evidence ?

Human Factors Evidence: 

Humans factors analysis evaluates how human beings fit into the system or interact with the product.  Human factors evidence is based on the understanding that human beings are flawed and therefore systems and products must be designed in a manner to account for foreseeable human behavior.  In other words, we know human beings are unreliable and cannot do the task the same every time — if a critical mistake occurs, that mistake could bring the entire system down . Therefore, the risk of human error must be addressed and planned for.  

For examples there are limitations in how people may interact with the system or product due to age, memory, gender, health, training, or ability.  The limitations can be addressed with either appropriate training, guarding, product design, or warning.  A human factors expert will evaluate these issues and address whether the company properly addressed the foreseeable human behavior that contributed to the event at issue and whether product or system design changes would have prevented that injury.  

The Lyon Firm works with human factors experts when those issues are presented in product liability cases. 

what types of documents are important in a product liability case?

Important Documents in Product Liability Cases: 

Depending on the case, the types of documents will change.  In general the practitioner should seek production of documents relevant to design and manufacture of the product,  hazard analysis, and risk assessment.  The counsel will want to request the following: 

  1. Failure Mode & Effects Analysis 
  2. Design Verification Plans
  3. Warranty Database
  4. Other Similar Lawsuits
  5. Other Similar Incident Reports
  6. Continued Performance Testing 
  7. Post Production Monitoring 
  8. Indemnity Agreements
  9. Marketing Materials 
  10. Parts Return Analysis 
  11. Any Regulatory Testing or Approval Documents
  12. Warning Design and Analysis 
  13. Patents on Alternative Designs
  14. Performance Testing Documents
  15. Design specification on other models with the alternative design features
  16. Other similar incidents on other similar models
  17. All drafts and versions of owners manuals and instructions for use
  18. Supplier & Component Part Manufacturer Agreements 
  19. Government warning letters & correspondence
  20. Any recall documents 
  21.  
what is the statute of limitations in a product liability case?

Ohio Statute of Limitations for Product Liability

Every State has a limitation on the time frame to initiate a product liability lawsuit.

In general, in Ohio an adult has two years to file a lawsuit from the date of the injury. A minor’s statute tolls until the 18th birthday, at which time they have two years from that date. 

There are exceptions to the two years, where the agent that caused the injury is discovered later, particularly where there was fraud to cover up discovering the exposure of danger of the product. These exceptions are commonly applied, but the exceptions are complex and require the analysis of a qualified product liability lawyer to address and advise you of the applicable date. 

In most cases, the two year limitation will apply and you should not rely on the discovery date without the advice of a qualified product liability lawyer. Moreover, the Ohio Product Liability Act[1], which was amended significantly in 2005 to reflect the legislature’s tort reform efforts. Claims arising on or after April 7, 2005 are subject to the Act. There are several significant changes to the law that occurred, including a 10 year statute of repose, which precludes liability for these issues are discussed in more detail in the Cincinnati Product Liability Lawyer articles section.

[1]    Ohio Rev. Code Ann. §§ 2307.71-2307.81 (Anderson 2006).

is the compliance with government safety standards a complete defense ?

Defendant Compliance with Government Safety Standards Not A Complete Defense In Ohio. 

Generally, a manufacturer’s compliance or non-compliance with government safety standards is not necessarily a complete defense to proof of a strict liability claim.[1]  Similarly, compliance or noncompliance with industrial or professional safety standards does not constitute either a complete defense to or proof of a strict liability claim.[2]

            With respect to product liability claims for harm caused by a drug or device, a manufacturer is not liable for punitive damages if the drug or device in question was manufactured, labeled and marketed in accordance with federal law.[3]  This bar on punitive damages does not apply if plaintiff can prove that the manufacturer fraudulently withheld from the government agency or misrepresented to the government agency material information known to be relevant to the harm suffered by the plaintiff.[4]

[1]    See Knitz v. Minster Mach. Co., 69 Ohio St. 2d 460, 464, 432 N.E.2d 814, 817 (1982) (statutory regulations only act as “guides” in determining the reasonableness of a manufacturer’s design choice);  see, e.g., Gable v. Gates Mills, 151 Ohio App. 3d 480, 491-92, 784 N.E.2d 739, 747-48 (2003), rev’d on other grounds, 103 Ohio St. 3d 449 (2004) (compliance with federal regulations on air bags is relevant evidence but “not conclusive of non-liability”); Hardiman v. Zep Mfg. Co., 14 Ohio App. 3d. 222, 226, 470 N.E.2d 941, 946 (1984) (compliance with Ohio “safe-place-to-work” statutes does not insulate a manufacturer from liability in strict liability cases).

[2]    Welch Sand & Gravel Co, Inc. v. O & K Trojan, Inc., 107 Ohio App. 3d 218, 225, 668 N.E.2d 529, 534 (1995) (compliance with professional engineering standard does not conclusively defeat a design defect claim); Evanoff v. Grove Mfg. Co., 99 Ohio App. 3d 338, 346, 650 N.E.2d 914, 919 (1994) (non-compliance with industrial safety guidelines does not necessarily establish strict liability).

[3]    Ohio Rev. Code Ann. § 2307.80(C)(1).

[4]    Id. § 2307.80(C)(2).

Is evidence of other prior incidents admissible in an Ohio product liability case?

Admissibility of Prior Instances in Ohio Product Liability Case

The Ohio Supreme Court has held that evidence of prior accidents and occurrences may be admissible in product liability cases, where the accidents or occurrences transpire under circumstances that are substantially similar to those in the case at hand.[1]  Evidence of prior accidents and occurrences therefore may be admitted to establish the “nature and magnitude of the risks of harm associated with [a] design ” under the Act.[2]

           

[1]    Renfro v. Black, 52 Ohio St. 3d 27, 31-32, 556 N.E.2d 150, 154-55 (1990).

[2]    Ogden v. Raymond Corp., No. 95CA0001, 1995 Ohio App. LEXIS 5796, at *7-8 (Dec. 27, 1995) (quoting §2307.75(B)(1).

[3]    Blanton v. Int’l Minerals and Chem. Corp., 125 Ohio App. 3d 22, 30, 707 N.E.2d 960, 965-66 (1997).

[4]    Onderko v. Rishmod Mfg. Co., 31 Ohio St. 3d 296, 301, 511 N.E.2d 388, 392 (1987); Mulloy v. Longaberger, Inc., 47 Ohio App. 3d 77, 81, 547 N.E.2d 411, 415-16 (1989).

what damages are recoverable in an Ohio Product liability lawsuit?

AVAILABLE DAMAGES IN OHIO FOR PRODUCT LIABILITY LAWSUIT

            There are no caps for compensatory damages that represent the economic loss of the plaintiff who is awarded damages under the Act.[1]

            Damages for non-economic loss “shall not exceed the greater of $250,000 or an amount that is equal to three times the economic loss, as determined by the trier of fact, of the plaintiff in that tort action to a maximum of $350,000 for each plaintiff in that tort action, or a maximum of $500,000 for each occurrence that is the basis of that tort action.[2] 

            The cap on damages for non-economic loss does not apply if the plaintiff suffered “permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system” or “permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.”[3]

            An award for punitive and exemplary damages cannot exceed two times the amount of the compensatory damages awarded.[4]

[1]    Ohio Rev. Code Ann. §2307.71(B)

[2]    Id. §2315.18(B)(2).

[3]    Id. §§2315.18(B)(3)(a)-(b).

[4]    Id. §2315.21(D(2)(a).

Discovering a Defective Product: How to Prepare for Legal Action

 

  1. Secure the product
  2. Obtain a complete history from the client and any witnesses on the purchase, use and incident with the product
  3. Obtain all incident or accident reports and photographs
  4. Obtain medical records of admission, EMS and first four days of hospital admission
  5. Obtain any government agency via FOIA requests
  6. Research any other similar incidents including lawsuits
  7. Research any active recalls
  8. Research any nuanced areas of law that the facts reveal
  9. Consult with appropriate experts
  10. Determine whether case merits filing a lawsuit
  11. Perform any product inspection or testing with appropriate protocols in place

Defective Products Lead to Settlements

The Lyon Firm aggressively, professionally, and passionately advocates for injured individuals and families against companies due to a defective product or recalled product to obtain just compensation under the law. 

The Firm has represented thousand of clients in product liability actions in all fifty states and in over 40 Multi District Litigations.  See The Lyon Firm Results Page for additional settlements.  

DEFECTIVE LAP BELT RESTRAINT

SPINAL CORD INJURY

(Pikeville, Kentucky): Confidential Settlement for Plaintiff who suffered spinal cord injury resulting in paraplegia due to defectively designed seat belt. Four passengers with three-point (lap/shoulder) belts walked away from the accident, and the only passenger wearing a two-point belt (lap only) suffered a debilitating spinal cord injury. The settlement assisted with home improvements to assist in daily living. GM entered federal bankruptcy during the process and no longer manufactures two-point lap belts for vehicles.

DEFECTIVE PROPANE WALL HEATER

WRONGFUL DEATH 

(Hillsboro, Ohio): Confidential Settlement for the family of elderly man who was catastrophically burned while operating a propane wall heater. The burns resulted in his unfortunate death. The heater, manufactured and sourced from China, was alleged to allow the flame to reach outside the grid area in violation of ANSI standards. The Defendant resolved the case following discovery and mediation. The recovered funds were paid to the victim’s surviving spouse and children. The company no longer manufactures this type of heater.

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