When you suffer an injury or illness linked to a defective or dangerous consumer product, drug, or medical device, any lawsuit you file against the manufacturer (and others) will probably be governed by a fault concept known as "product liability." These kinds of injury claims are different from those stemming from car accidents and other mishaps, as the injured person usually doesn't need to show negligence on the part of the manufacturer.
Although the range of potential injury-causing consumer products, medications, and medical devices is almost endless, defective product liability lawsuits can generally be grouped into three categories. The first category involves products that have been defectively manufactured in some way, meaning that a mistake was made either at the factory or at some point between the factory and wherever the product, drug, or device was purchased or utilized.
The second category of claims involves products that have been defectively designed, meaning that the product is dangerous in some way even though it was correctly manufactured. These cases do not involve a single faulty product, but rather an entire line of products that are claimed to be unreasonably dangerous. Many hernia mesh injury lawsuits allege that the implanted devices were defectively designed.
The third category of claims involves a failure to provide adequate warnings or instructions regarding the proper use of the injury-causing product, or the potential health effects that could result from the product's use. Lawsuits linking Roundup to cancer allege that the product's manufacturer failed to warn consumers of risk that exposure to the popular weed killer can increase the risk of non-Hodgkin's lymphoma.
Learn more about types of product liability claims.
As a general principle in defective product cases, you want to include any and all parties involved in the chain of distribution (the path that the product/drug/device takes from manufacture to distribution to customers, patients, and others).
The chain of distribution is typically made up of the manufacturer, the retailer, and any number of suppliers, wholesalers, and distributors in between. Depending on your case, the defendants may also include consultants, contractors, quality-control engineers, designers, pharmacies, health care professionals, and anyone else with some sort of connection to the problem that caused the injury or illness. Learn more about who can be sued in a product liability case.
The evidence you will need to present in court in order to win your lawsuit will depend on the particular circumstances of your case. In defective product liability lawsuits, however, claims generally consist of four basic elements.
First, you must prove that you have been injured or suffered some other kind of harm (almost injured doesn't count). You might have used Johnson's Baby Powder for decades, for example, but you can't sue over harm caused by asbestos in talc products unless you've also suffered some kind of asbestos-related illness.
Second, you must prove that the product involved in your case was somehow defective or lacked proper warnings or instructions.
Third, you must prove that the defect (or lack of proper warnings or instructions) was the specific cause of your injuries or damages.
Finally, you must prove that, when you were injured or made ill, you were using the injury-causing product more or less in the manner in which it was intended to be used. Learn more about proving a product liability claim against a manufacturer and others.
You must file a defective product liability lawsuit within a certain amount of time set by a law called a "statute of limitations." Most states have a statute of limitations that applies specifically to defective product liability claims, but the actual amount of time you have to file your lawsuit varies from one state to the next. If you fail to file your lawsuit before the statute of limitations expires, the judge will almost certainly throw out your case, no matter how good your claim may be.
The moment when the time limit begins to run also depends on the law of your state. In some states, the clock starts ticking on the date of the injury, but many states don't start the clock running until the injury is discovered "or should have been discovered." This is especially true in cases alleging a link between a product or medication and development of an illness. So, if you've been diagnosed with cancer after taking Zantac, but it's been years since you last used the popular heartburn medication, the statute of limitations clock might not start until the date of your diagnosis, or the date on which you learned (or should have learned, in the eyes of the law) that your illness was linked to Zantac.
Learn more about time limits for filing a product liability claim.
One of the most important aspects of evaluating a products liability claim is determining what types and amounts of damages you have suffered. The term "damages" is legalese for a sum of money paid to the plaintiff in a lawsuit either to compensate for some form of injury or loss or to punish the defendant for wrongdoing.
All damages fall into two basic categories: compensatory damages and punitive damages. Compensatory damages are intended to restore you to the condition you were in before the injury or illness occurred, by attaching a dollar value to each of the bad things that happened to you as a result of the harm caused by the product/drug/device. These damages include "economic" losses such as medical expenses, lost wages, and lost ability to earn future income. They also include certain "non-economic" losses, such as pain and suffering.
In many cases, compensatory damages are the only form of damages awarded. If a judge or jury finds that the defendant has acted particularly badly, however, you may also be entitled to punitive damages. The purpose of punitive damages is to punish a defendant for its conduct and to deter others from engaging in similar conduct. Punitive damages are roughly analogous to a fine and are calculated based on the nature of the defendant's misconduct in relation to its wealth (the idea is to make it hurt in proportion to the misconduct). (Learn more about damages in defective products cases.)
Many product liability claims arise out of the use of pharmaceutical drugs with dangerous side effects. Often, patients claim that those side effects were unreasonably dangerous or that the manufacturer, pharmacy, or doctor did not warn the patient of those side effects. But keep in mind that many drugs are known to carry serious risks. If your doctor properly advises you of those risks and you decide the risks are worth taking, you won't have a legal claim even if you suffer serious side effects. Get more information on product liability claims involving pharmaceutical drugs.
If you think you might have a viable product liability claim, talk to a injury attorney to learn more about your options and your best path forward. And for details on the ins and outs of the injury claim process, get How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo).