Distributors and sellers may also be responsible in certain situations such as when they make modifications to the product or make incorrect factual representations about it.
Our firm has represented many clients injured by devastating product failures. Here are just some recent examples of cases in which our attorneys have brought claims on clients’ behalf:
- Large national manufacturer of motorcycle and dealer, alleging defective components caused the death of a rider
- Multinational manufacturer of the battery cell, alleging defective cell caused electronic cigarette to explode in the client’s face
- Multinational manufacturer of pharmaceutical drug, alleging defect caused clients to grow breast tissue
- International manufacturer of crane, alleging defects led to a fatal collision with a pedestrian
- National manufacturer of chemicals, alleging warning defects led to flash fire causing major burn injuries
- Manufacturer and dealer of a recreational vehicle component, an alleged defect caused total hand amputation
When a product fails to cause injury, the manufacturer may be held strictly liable for the unsafe product under a number of different theories, including defects in manufacturing, defects in design, and defects in warnings or instructions.
A design defect is a problem that exists in every example of the product because of decisions made on the drawing board. Design defects can manifest in many ways. The product may fail to incorporate an important safety feature without which it cannot be used safely, such as an emergency cut-off switch on a motorized gardening tool. The product may also use a design or materials that are inappropriate under the circumstances. For example, a chair that collapses while being used may be defective because the designer failed to engineer adequate support, or the manufacturer failed to use materials of sufficient strength to support the user. In other words, it is the design of the product itself that makes the product dangerous.
To prove that a product is defectively designed, we often must show that there is a safer alternative design that would have prevented or significantly reduced the chance of injury. We also need to show that it was economically and technologically feasible to use the alternate design at the time the unsafe product left the manufacturer’s hands.
Proving that there was a safer alternative that could have prevented the injury in question is often difficult and expensive. Oftentimes, our Firm will be required to hire one or more experts in the industry to investigate the product, carefully analyze the evidence, and determine whether a design defect is the cause of the injury and whether a safer alternative existed when it was sold. The failure to take this vital step can be the death knell of the case because manufacturers often ask the courts to dismiss design-defect cases before they ever reach a jury. That is one of the reasons why, if you have been hurt by a defective product, it is important to hire a law firm like ours with the experience and resources to develop the evidence needed to prove that the defective design caused your injuries.
Even when a product is safely designed, a defect in production can cause it to become dangerous for users. A manufacturing defect is one that causes the product to deviate from its intended design. The problem may be the result of cutting corners by supervisors, a lack of quality control or inspections, or miscalibration of production equipment. Whatever the reason, a simple mistake on the factory floor can result in severe consequences. For example, a breaker box that is improperly wired at the factory may be defectively manufactured where the improper wiring leads to sparks, causing a house fire.
Proving a manufacturing defect will require inspections and testing of the injury-causing product by experts who are knowledgeable about the safe way to produce the product. It is also not uncommon that the product itself will be destroyed or compromised during the injury-causing event. Determining the nature of the manufacturing defect often requires expensive and time-consuming investigation on the part of the attorneys and their experts. As with defective design bases, it is critically important that you hire an attorney who is experienced, knowledgeable, and thorough from day one in their approach to showing that a manufacturing defect was the cause of your injury.
Marketing and Warning Defects
Manufacturers have a duty to make sure that their products are safely designed and produced. But their duty does not end there. Before their goods have hit the shelves, manufacturers must make sure that the products have proper warnings and instructions to make sure consumers know of any actual or potential dangers.
A manufacturer may be liable for a marketing or warning defect where it fails to warn consumers of a danger posed by the product, even if it is not defectively designed or manufactured. A product is still considered defective if the manufacturer fails to warn users or the public about its unsafe characteristics or risks. For example, a prescription drug may be defective if the manufacturer fails to warn of significant side effects in certain users. Or a power tool may be defective where the manufacturer fails to warn the user not to remove a safety guard during use.
Manufacturers have a duty not only to warn of dangers that were known to it at the time a product leaves its possession. They must also warn about dangers about which they should have known using reasonable skill and foresight. And even when warnings and instructions are given, they must be adequate. In other words, the warnings and instructions must reasonably be expected to catch the attention of a consumer, as well as be comprehended by him or her.
Distributors and Retailers
Manufacturers are not the only entities that may be responsible for an unsafe product. Unfortunately, it is sometimes impossible to obtain justice for an injured person directly against a product manufacturer. For example, it is not uncommon for U.S. sellers to cheaply import defective and dangerous products from a foreign manufacturer with no presence in the United States. In these cases, it can be very difficult to force the foreign manufacturer to appear in court in the United States or obtain a recovery against it.
Thus, sellers of a defective product may be liable for injuries caused by the product in certain circumstances. In Texas, non-manufacturing sellers may be responsible where the injured person can prove or more of the following:
- That the seller participated in the design of the product
- That the seller altered or modified the product and the claimant’s harm resulted from that alteration or modification
- That the seller installed the product, or had the product installed, on another product and the claimant’s harm resulted from the product’s installation onto the assembled product
- That the seller exercised substantial control over the content of a warning or instruction that accompanied the product, the warning or instruction was inadequate, and the claimant’s harm resulted from the inadequacy of the warning or instruction
- If the seller made an express factual representation about an aspect of the product, the representation was incorrect, the claimant relied on the representation in obtaining or using the product, and if the aspect of the product had been as represented, the claimant would not have been harmed by the product or would not have suffered the same degree of harm
- That the seller actually knew of a defect to the product at the time the seller supplied the product, and the claimant’s harm resulted from the defect
- That the manufacturer of the product is insolvent or not subject to the jurisdiction of the court
Whether one of these situations applies to the facts of your case will require a comprehensive investigation of the facts and a thorough analysis of the law. Our attorneys have substantial experience representing clients against sellers who share responsibility for their injuries, even when a manufacturer has gone out of business or is not subject to a lawsuit in the United States.
Inherently Dangerous Products
Manufacturers and sellers are protected against certain cases involving inherently unsafe products. In Texas, this category is fairly limited and includes products that are known to be unsafe by ordinary consumers and is a common consumer products for personal consumption. These items include sugar, oil, alcohol, tobacco, butter, and oysters. However, this protection for manufacturers and sellers does not apply if the injury is caused by a manufacturing defect or a breach of some warranty provided by the manufacturer or seller.
Firearms and ammunition are other categories of protected products. In Texas, to prove that a firearm or ammunition is defective, an injured person must show that the actual design of the firearm or ammunition was defective in a way that caused the product not to function in a manner reasonably expected by an ordinary consumer or firearms and ammunition. The unexpected design of the product must also be the cause of the injury.
Compliance with Federal Regulations
States including Texas also provide protection to manufacturers in regulated industries. For example, pharmaceutical manufacturers are provided with a presumption under the law that they are not liable for a marketing/warning defect if the warnings and instructions were approved by the FDA. Likewise, a product manufacturer may argue to the court that it complied with an applicable federal safety regulation at the time it manufactured the product. In these cases, we may argue that the federal safety standards provide inadequate protection for the public because, for instance, the federal standards provide a floor, rather than a ceiling, when it comes to consumer safety. We would also perform a complete investigation as to whether the manufacturer withheld important information when the federal agency determined the product in question met the minimum standards.
Products liability cases often involve complex and technical issues requiring the expertise of an experienced lawyers and expert witness. The attorneys at Armstrong & Lee LLP have extensive experience working with experts to identify the causes of severe injuries that arise in product liability cases. We have the knowledge and resources to identify when a manufacturer can be held responsible for an unsafe product, and we have the expertise to hold that manufacturer to account. Contact us today for a free consultation regarding your case.
Frequently Asked Questions
What does “product liability” mean?
Answer: In Texas, products liability means any action against a manufacturer or seller for recovery of damages for personal injury, death, or property damage caused by a defective product.
What legally makes a product defective?
Answer: A products liability claim can be based on problems with the design, marketing, or manufacture of the product.
What is the difference between a design defect and a manufacturing defect
Answer: There can be a design defect when a product is unreasonably dangerous and an alternative design would have been safer. A manufacturing defect occurs when an item was assembled incorrectly or poorly prior to the sale.
Who can be held responsible for a defective product?
Answer: Manufacturers can be held responsible for a defective product in Texas. A manufacturer is anyone who is a designer, formulator, constructor, fabricator, producer, compounder, processor, or assembler of the product or a component part.
Sellers, who are not manufacturers, can also be held responsible for a defective product. Sellers who control warnings, know of defects, or make statements about the defective product can sometimes be held responsible. Sellers can also be held responsible if the manufacturer is insolvent or not able to be sued in Texas.
How long do I have to file a product liability claim?
Answer: Under Texas law, you have two years to file a product liability lawsuit from the date of the injury or the date you discovered the injury.
There is also a products liability statute of repose in Texas. With limited exceptions, no one may bring a claim 15 years or longer from the time the defendant sold the product.
What damages are recoverable in a product liability case?
Answer: In Texas, the damages available in product liability can include payment for medical and pharmaceutical expenses, lost wages, physical impairment, pain, mental anguish, and disfigurement. The damages available to you will depend on the specific facts of your case.
Do I have to pay a fee to have an attorney at Armstrong & Lee LLP review my case?
Answer: No. If you feel that you or a loved one may have been harmed by a defective product, our team will review your case free of charge.
Answer: In personal injury and wrongful death cases, injured parties usually pay a “contingent” legal fee. Under a contingent fee arrangement, the client does not pay the attorney an hourly rate. Instead, the attorney’s fee is a defined percentage of the amount of money that is recovered in a lawsuit. That percentage can vary depending on the circumstances of the case. Additionally, the law firm handling the case will usually pay all necessary out-of-pocket expenses subject to a right of reimbursement without interest at the conclusion of the case. In a contingent fee arrangement with Armstrong & Lee LLP, if there is no financial recovery in a lawsuit, there is no fee paid to the attorneys.