Law Alerts
TEXAS LAW ALERT — SPRING 2003 ISSUE
PRODUCT LIABILITY FAQS
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What Is a Products Liability Claim?
“Products liability” is a generic name for any lawsuit for damage or injuries that are caused by the use of a product. Usually, a products liability lawsuit involves a claim that the product was defective or that it was unfit for its intended use.
Who Can Be Held Liable in a Products Liability Case?
Although liability often depends on the kind of defect that exists, defendants commonly named in a products liability lawsuit are the product’s designer, manufacturer, and distributor, including the store where the defective product was purchased.
Isn’t the Rule “Let the Buyer Beware”?
Products liability lawsuits serve two purposes. First, they allow people who have been injured by dangerous or defective products to recover for their injuries, their pain and suffering, and their lost wages. Second, such lawsuits encourage designers and manufacturers to build safer products that won’t injure users and to remove from the market dangerous products that cannot be made more safe.
Are There Different Kinds of Products Liability Lawsuits?
Because products can cause injuries in different ways, there are different kinds of products liability suits. The four main kinds are:
* negligence suits, which claim that the defendant did not use reasonable care in designing, making, or marketing the product;
* breach-of-warranty suits, which claim that the defendant made some promise about the product that turned out to be untrue;
* misrepresentation suits, which claim that the defendant made the product seem safer than it was or did not effectively warn about the product’s dangers; and
* strict liability suits, which claim that the defendant should be held liable for the damages caused by the use of the product, even if the defendant has otherwise done nothing wrong.
Do You Mean
That a Company Can Be Liable Even if the Injury Is Not Its Fault? Yes. The basis of the strict liability theory is that the designers, manufacturers, and sellers of products are all likely to know more about the products they make and sell than the consumers who buy them. The possibility that they can be found liable for any injury that occurs while using the product is supposed to encourage them (1) to make products as safe as they know how, (2) to give consumers complete and accurate warnings about how to use the product safely, and (3) to discourage the sale of unsafe products.
What Kind of Product Can Support a Products Liability Lawsuit?
Products commonly involved in products liability suits include cars, power tools, ladders, medical devices, chemicals, and drugs, but almost any kind of product that is bought and sold and that has caused some injury can provide the basis of a products liability suit. Many of the tobacco lawsuits covered in the media are actually products liability lawsuits. Although a manufacturer will often recall a defective product to prevent it from injuring more users, a products liability claim may exist even if the product is not being recalled.
What Facts Weaken a Products Liability Claim?
We all know people who have hurt themselves while doing things they should know better than to do. In a products liability case, this is called “misuse,” and if the injury is caused by using the product for a purpose for which it was neither designed nor intended, this fact may make it harder to show someone else is liable for the injury.
Also, a person who is injured after not reading or ignoring clear instructions or warning labels may not have a good products liability case.
IF YOU ARE INJURED BY A DEFECTIVE PRODUCT . . .
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* Contact our firm immediately.
* SAVE THE DEFECTIVE PRODUCT! Also, do not alter or tamper with the product because this could make it difficult to prove your case.
* Save everything related to the defective product, including the sales receipt, instructions, warnings, and accessories.
* Photograph or videotape the product at the scene of the injury or as soon after as possible.
* Photograph or videotape your injuries as soon as possible.
Products liability cases are extremely complex!
In some cases, the dispute involves more than one victim bringing a claim against a manufacturer. Manufacturers often try to blame you or some other party to avoid liability. Our firm will help you negotiate the legal pitfalls.
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As more and more Americans suffer from obesity, an increasing number of people are having gastric bypass surgery. A gastric bypass is intended to reduce the amount of food absorbed by the patient, thereby helping him or her lose weight. Although commonly called “stomach stapling,” gastric bypass operations can take a number of forms, including gastric banding, gastroplasty, and laparoscopic gastric bypass. Because gastric bypass surgery is now covered by many health plans, the number of operations has doubled in the past five years and could double again by 2004. Unfortunately, with the increase in the number of gastric bypasses performed, more people are suffering from complications caused by the surgery.
Complications range from the common and relatively less serious, such as gallstones, to the less common and far more serious, such as hernias, pneumonia, and blood clots. One potential complication from gastric bypass surgery is when the abdomen is accidently perforated during the operation, which can cause infections and even death.
Although each case is different, there are some signs that you may have been the victim of malpractice in gastric bypass surgery. Excessive pain while recovering is an indication that the bypass did not go as planned. Serious side effects from a botched procedure include blood clots, embolisms, and kidney problems. If your doctor does not respond to your complaints or does not monitor your recovery, this may also indicate he knows he made a mistake.
If you or someone you know has undergone an unsuccessful gastric bypass operation, contact us. We will look into the circumstances and help you determine if any malpractice has occurred.
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At the end of the day, most lawsuits are about one thing: damages. This is because persons who have not suffered damages are unlikely to sue. Courts cannot undo the past, but they can award injured persons money in an attempt to “make up” for a loss. There are three kinds of damages: nominal, compensatory, and punitive (also known as exemplary damages).
Nominal damages are awarded when a person has been damaged but the damage does not translate into dollars and cents. Nominal damages are often symbolic awards (for example, $1), and such damages amount to a court saying that you have been legally damaged, but this legal damage did not cause any real-world loss.
The kind of damages most commonly sought are compensatory damages. As the name indicates, compensatory damages are intended to compensate an injured party for a loss. Compensatory damages are awarded for losses in specific dollar amounts (such as doctor’s bills, the cost of replacing a defective product, or lost wages) as well as for losses that are less certain (such as mental anguish, pain and suffering, or lost future profits). Compensatory damages try to put the injured party back in the place he or she would have occupied but for the injury.
Finally, there are punitive damages. Punitive damages are sums awarded above and beyond the compensatory damages. They are designed to punish a wrongdoer and to send a message to others that this type of behavior will not be tolerated. When you hear about a case where one side has won tens of millions of dollars, it is usually a case with a large punitive damages award.
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Thank you for trusting our firm with your legal needs. If you or someone you know has been injured due to somebody else’s carelessness, please call us. We want to help.
PERSONAL INJURY DO’S AND DON’TS
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While no one looks forward to filing a personal injury lawsuit, keeping in mind some simple do’s and don’ts should help to make your case as simple as possible.
* DO keep all appointments regarding your case, especially those with your lawyer and your doctor(s).
* DON’T keep any information about your injuries from either your lawyer or your doctor, even if you think this information is obvious.
* DO keep accurate records about your expenses (especially about your prescriptions), any time you miss from work, and all other expenses related to your case. Receipts are helpful.
* DON’T forget that the insurance company of the person who injured you is on the other side of your case. It does not represent you and does not have your interests in mind.
* DO maintain contact with your lawyer, ask about anything you do not understand, and communicate your thoughts and concerns. Remember that your lawyer’s paralegal can answer many questions.
* DON’T listen to legal advice from friends, family, and other amateurs. You hired your lawyer because he or she is the expert.
* DO keep a positive attitude.
* DON’T discuss your case with strangers.
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Employer’s Lack of Care Is Malice In a recent case, a Texas court has underscored the law that a company cannot knowingly put workers at risk without being forced to pay the price. This case involved a worker who was killed by asbestos that he was exposed to while working. His widow sued the company responsible for exposing her husband to the asbestos, and the jury found that the company was partially responsible for the worker’s death. The jury then increased its award to the widow by almost $200,000 because it found that the worker’s death was caused by the company’s “malice.”
This verdict was based on evidence that employees of the company knew asbestos was dangerous by at least 1972 and possibly as early as the mid-1950s, but they did not do anything to protect workers until 1976. This evidence showed that the company was “consciously indifferent to the safety of others,” and the jury’s finding of malice was supported by the evidence.
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Although automated teller machines (ATMs) offer fast and convenient access to your money, they also provide a convenient spot for thieves to take your money or learn your confidential account information. Keep the following tips in mind when using an ATM to protect you from becoming a victim.
Carefully Choose Your ATM
Pick a machine that is in a heavily traveled or well-lighted area. Use a drive-up ATM if possible, keep your car doors locked, and use your mirrors to keep an eye out for suspicious activity.
Be Aware of Your Surroundings
If someone makes you uncomfortable or is trying to see you enter your personal identification number (“PIN”), cancel the transaction and return to your car.
Keep Your Transaction as Short and Discrete as Possible
Have your card out and ready to use, and put your money in your wallet or purse as soon you receive it. Do not flash large amounts of cash for everyone to see.
If You Receive a Receipt, Keep Track of It!
Do not leave it in a nearby trash can or on top of the ATM. Many receipts have private information about your account and your finances–information that could be valuable to thieves.