Product Liability Claims: Who to Sue?

If you've been injured by a dangerous or defective product, here's how to identify all potential defendants in your product liability case.

If you've been injured by a product and you want to recover for your losses ("damages"), one of the first things you'll need to do is identify who might be liable and name them as defendants in your lawsuit. In this article, we'll cover:

  • figuring out the "chain of distribution"
  • special considerations for corporate and foreign defendants, and
  • how "joint and several liability" works when you're suing more than one defendant.

All Parties in the Chain of Distribution

With few exceptions, most state laws are more or less the same when it comes to the types of defendants that can be held liable in a defective product or "product liability" case.

As a general rule, you want to look at all parties involved in the product's chain of distribution (the path that the product takes from manufacture to distribution to customers). Most possibilities are covered below (note that there may be more than one potential defendant within each category).

Manufacturer

At the beginning of the chain of distribution is the manufacturer of the injury-causing product. The manufacturer may range in size from a multinational company to an individual working out of a garage (in which case you hope they have a good insurance policy).

If the defective component is part of a larger product, you should include both the manufacturer of the defective part and the manufacturer of the product itself. So, for example, if you were injured by a car with an exploding battery, you would bring your vehicle defect product liability claim against both the car manufacturer and the manufacturer of the battery (as well as any additional participants in the chain of distribution discussed below).

Be sure to include any additional parties involved in the manufacture, design, or marketing of the product who might potentially be linked to the defect, especially if they are a separate entity from the manufacturer, such as an outside consultant or contractor.

For example, if your claim involves a manufacturing defect, you would include any quality-control engineers used by the manufacturer; if your claim involves a design defect, you would include any design consultants used by the manufacturer; and if your claim involves a failure to warn or provide adequate instructions, you would include any technical experts retained by the manufacturer to help write the instructions for the injury-causing product.

Retailer

Even though the retail store where you bought the injury-causing product probably didn't manufacture it, the retailer may still be liable for selling you a defective product. Keep in mind that it's not a question of choosing one defendant over another (regardless of the protests of the retail store where you bought the defective product). Any party involved in the chain of distribution should be named as a defendant in your lawsuit.

When figuring out if you can sue the retailer, keep the following in mind:

You don't have to be the buyer. Even if you were not the actual buyer of a defective product that caused you injury, you may still be able to recover. For example, if you borrowed your neighbor's Roundup weed killer for years before developing non-Hodgkin's lymphoma, the fact that you did not purchase it yourself would not prevent you from bringing a defective product claim or naming as a defendant the retail store where your co-worker purchased it.

You don't have to be the product user. Even if you were injured by a defective product that someone else was using, you may still be able to bring a product liability claim. For example, if you are injured by a blade that flew loose from your neighbor's defective lawnmower, you may have a defective product liability claim and you should name all parties involved in the chain of distribution of the lawnmower as defendants, regardless of the fact that you were neither the purchaser nor the one using the defective lawnmower when you were injured by it.

You might be able to recover for used products. If you purchased a used product that turns out to be defective from a supplier of used goods, you might still be able to sue the supplier, depending on the product, the nature of the defect, and the particular state law applicable to your case. This is a developing area of the law and varies from one case to the next.

Wholesaler or Distributor

In between the manufacturer and the retailer, there may be any number of wholesalers, suppliers, distributors, or other "middlemen." Each are part of the chain of distribution of the defective product, are potentially liable in your defective product lawsuit.

When the Defendant Is a Corporation

The manufacturer, retailer, and any "middlemen" who are part of the chain of distribution of the defective product may be corporations. As far as product liability law goes, corporations are considered to be the equivalent of persons, and can be held liable. But corporations can change shape, form, and owners frequently by means of mergers with or acquisitions by other companies, reorganizations, spin-offs, re-naming, and so on. Each of these successor companies may "inherit" liability for its predecessor's participation in the chain of distribution of a defective product. If possible, name these successor companies as defendants in your claim.

A recent example of inherited liability is Bayer's purchase of Monsanto, the original manufacturer of Roundup weed killer. When Bayer acquired Monsanto in 2018, it also acquired Monsanto's potential financial responsibility for plaintiffs' illnesses in thousands of Roundup lawsuits.

Dealing With Foreign Defendants

You may discover that certain companies in the chain of distribution are foreign corporations or businesses. This typically does not prevent you from suing them, because doing business in this country usually renders a foreign company subject to the jurisdiction of the courts where it does business.

The More Defendants the Merrier: Joint and Several Liability

Among the many reasons to identify every potential defendant in your case is the legal doctrine of "joint and several" liability. The essence of this doctrine is that each and every defendant is liable both "jointly" (together) and "severally" (separately) for the entire award of the plaintiff's damages. This means that if one of the defendants in your case is unable to pay up for any reason, the others have to pick up the tab. The defendants may end up fighting among themselves as to how to divvy up the hit, but as plaintiff, that is not your problem. Joint and several liability aims to ensure that a winning plaintiff gets paid and leaves the defendants to work out among themselves how much each of them should have to pay out.

In states that follow pure joint and several liability, even if the only defendant who can afford to pay anything was only marginally responsible for the defective product, that defendant is obligated to pay the entire award of damages. This is why personal injury attorneys always try to track down as many "deep pocket" (wealthy) defendants (which usually means large corporations) as possible. Because of this, the search for every corporate entity that might be liable for the defective product in your case is usually well worthwhile.

Getting Help With a Product Liability Claim

Identifying all the parties involved in the chain of distribution of a defective product can be deceptively complex. Having an experienced lawyer on your side can be the key to crafting the right strategy and realizing the best outcome. Get tips on finding the right personal injury lawyer for you and your case.

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