PRODUCTS LIABILITY ATTORNEY

Who may be liable?

• Manufacturers
• Distributors/Wholesalers
• Retailers/Sellers

What is a product defect?

Products liability law generally recognizes three different types of products defects: (1) design defects; (2) manufacturing defects; and, (3) defective instructions or product warnings.

A design defect concerns a product that has been designed in a way that may cause harm to a consumer. Once manufactured and sold to consumers, the product may cause harm to any consumer that purchases the good.  Notably, improperly designed goods present the possibility of harming any consumer that purchase or use the product.

A product that suffers from a manufacturing defect may have been designed properly but is rendered defective based on the manufacturing or distribution process. Since manufacturing defects are only in a few of the delivered goods and not the entire lot (i.e. design defect), products that have been defectively manufactured are often more difficult to detect than products that have been defectively designed.

The third type of product defect concerns goods that are sold with inadequate, misleading, or incorrect instructions for use or assembly and products that may fail to adequately warn users of the dangers of using the product in certain ways.  For instance, pharmaceutical drugs that lack federally required black box warnings often fall under this category of products liability.

What are some examples of the types of goods that can be found defective?

• Toys
• Automobile parts
• Children’s furniture
• Pharmaceutical drugs
• OTC drugs
• Medical devices such as prosthetics (prosthetic hips, pacemakers, etc.)
• Hairdryers
• Household appliances (stoves, dishwashers, etc.)
• Defective safety devices (guns, construction tools, etc.)

Essentially, any product that was designed, manufactured, or marketed in a dangerous or defective manner that causes injury to another may trigger an entitlement to damages in a product liability lawsuit.

What kinds of compensation or damages may be available in a product liability case?

In Florida, manufacturers are required to bear the risk of injury to person or property arising from a defectively designed or manufactured product. As such, the law of torts imposes a duty upon manufacturers not to harm persons or property when placing their products into the stream of commerce. However, if there is no injury or the loss only involves the product itself, the measure of damages is governed by contract and not tort based on what is referred to as the “economic loss doctrine.” Accordingly, purely economic losses are governed by contract while losses that arise from injury to person or property are governed by tort.

Each case is unique, and the available remedies are subject to a number of issues. In general, there are variations from state to state. In addition, the available remedies may be offset by a successful defense.  For example, the manufacturer may claim: (1) the good was not properly handled by the consumer; (2) the consumer used the good in an unreasonable manner; or, (3) the consumer modified the good.  In sum, the manufacturer may claim the consumer’s own actions either caused or otherwise substantially contributed to the injuries that (s)he claims to have suffered as a result of using the product.

The Zaritsky Law Firm will consider the entire claim. Each part will be segregated and analyzed individually to ensure that your rights and benefits are protected. The damages may include medical bills, pain and suffering (past, present and future), lost wages (past, present and future), emotional trauma, loss of companionship, property loss, loss of capacity for the enjoyment of life, disfigurement, disability, physical impairment, inconvenience, and more.  For example, if the manufacturer, distributor, retailer and/or provider is shown to have behaved maliciously or otherwise acted in a grossly negligent manner, then punitive damages may also be available.

Will the Claim Be Resolved in Settlement or Trial?

In each products liability case, the Zaritsky Law Group seeks to maximize your compensation by measuring the full extent of your injuries and loss. We interview witnesses, investigate fault (if applicable in the strict liability context), uncover responsible parties, obtain and examine pertinent claim documents (e.g., safety reports), retain and consult experts (investigative/medical/surgical/engineer/economic/life-care/life-planning/accident reconstruction/rehabilitative/safety/other), analyze medical records/reports, assess short and long term impact (financial/emotional/physical), identify lost income and expenses, and evaluate many other variables before deriving a reasonable settlement value. However, if the responsible party (or parties) and/or their insurance company (or companies) fail to accept a reasonable settlement offer(s), a trial by judge or jury may be necessary to protect your rights.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Lawsuits – Overview

1. Complaint & Summons

In the event settlement is not reached with the at-fault party, parties, and/or their insurance companies, a lawsuit must be filed with the court to protect your rights. Specifically, the Zaritsky Law Firm will prepare and file a complaint setting forth each of your legal theories for recovery against the at-fault party and/or parties. You are the “plaintiff” and the at-fault party or parties is/are the defendant(s). Along with the complaint, a summons is prepared and conformed to notify the opposing party defendant(s) of your claim and the time for their required response.

 

2. Responses to Complaint

Once served, the defendant(s) must respond within the designated time, which is typically twenty (20) days from their receipt of the summons and complaint (i.e., service of process). When responding, the defendant(s) may move to dismiss the complaint (e.g., lack of jurisdiction over person or subject matter, insufficiency of process or service of process, failure to state a claim upon which relief can be granted, failure to join an indispensable party, venue, or other) or file an answer to the complaint. If the defendant(s) answer(s) the complaint, they must admit, deny, or state lack of knowledge to each of the allegations. Further, the defendant(s) may raise affirmative defenses, file a counter-claim, cross-claim against another party defendant or defendants, or even file a third-party claim against another party (i.e., not a named defendant in the complaint).

If the defendant(s) fail(s) to respond within the designated time, a default may be entered by the court. If the defendant(s) assert(s) a counter-claim, cross-claim, or third party claim, then the party or parties against whom such claim(s) was/were filed must respond within another designated period of time. Again, like before, the party or parties receiving such claim(s) may move to dismiss or file an answer.

3. Discovery

After the lawsuit is filed, the “discovery” process begins, which, in most cases, requires significant time and effort. During the “discovery” process, the parties demand and exchange information that is reasonably calculated to lead to admissible evidence in trial. More particularly, the “discovery” process may involve the following methods: (1) production requests; (2) interrogatories; (3) requests for admissions; and, (4) depositions. If disputes arise during the “discovery” process, the parties may move to compel the information with the court. If a motion to compel is filed, the court may or may not schedule a hearing to rule on the motion.

4. Summary Judgment

At the end of the “discovery” process, one or more of the parties may file a motion for summary judgment (in full or in part) seeking to resolve the case or issues in the case as a matter of law with the court. Essentially, the moving party or parties claim there are no material issues of fact in dispute and that the moving party is entitled to a judgment as a matter of law. Stated differently, the moving party contends that a particular result is required when applying the facts to the law.  If granted by the court, the case or issues in the case are considered resolved unless otherwise appealed in a timely manner.

5. Trial

At some point, the parties may attempt to settle the case through alternative dispute resolution (“ADR”). Some common methods of ADR include mediation (court-ordered or voluntary) and arbitration (binding or non-binding). If an agreement is reached, there is no appeal. If no agreement is reached and no summary judgment granted by the court, the case proceeds to trial. Whether decided by judge or jury, a judgment will be entered based on the facts and law. Any of the parties may appeal the judgment, in full or in part, within a designated period of time (usually 30 days).