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Common mistakes in product liability cases
SHERRY KARABIN
Legal News Reporter
Published: December 2, 2015
Consider this scenario: A dishwasher leaks water all over the kitchen floor, leading to a serious slip and fall accident. The injured person plans to sue the manufacturer but before speaking to an attorney, a family member attempts to fix the dishwasher, perhaps eliminating potential evidence in the process.
According to Harrington, Hoppe & Mitchell attorney William Hawley tampering with a defective product or failing to preserve it in its original form comprise two of the most common mistakes made by plaintiffs seeking to file product liability lawsuits.
“To establish product liability, it must be proven that the defect existed at the time the product left the control of the manufacturer,” said Hawley.
“One of the keys to winning a product liability case is preserving the defective product intact,” said Hawley. “For an attorney to establish the case, oftentimes experts must be brought in to establish the type of defect and whether it was there at the time the product left the manufacturer. Without a defect, it’s impossible to prevail.”
Additionally, he said any lawsuit involving damages from a defective product generally must be filed within two years of the injury. Therefore, Hawley suggests retaining an attorney immediately.
“A lawyer can also advise the injured person how to preserve the evidence,” he said.
Hawley said establishing a manufacturer’s liability for injuries caused by a defective product is easier in Ohio than some other states because an injured party only needs to prove two things: There is a defect in the product and the defect caused the injury.
“There was a big change in the law in Ohio in 1977, which made it easier to sue the manufacturer of a product or a supplier of a product,” said Hawley.
“There is no longer any requirement to prove negligence or carelessness.”
According to Matthew Duncan, a partner at Buckingham, Doolittle & Burroughs, the Ohio Product Liability Act underwent significant modifications in 2005.
“Prior to 2005, it was possible to prove product liability based on common law,” said Duncan, who generally represents defendants in product liability and other commercial litigation matters. “The current statute is much more specific.
“Some states are known to have laws that favor either plaintiffs or defendants,” said Duncan. “I think Ohio strikes a good balance between the two.”
Hawley said currently an injured party only has to prove “strict” liability, which he said can be established by demonstrating “the injury resulted from one of four common product defects.” These defects include manufacturing, design, inadequate warning and non-conformance with prior manufacturer representations.
Hawley said manufacturing defects are one of the most common types of product liability cases.
“To prove a manufacturing defect, there must be a material deviation or deviations from the manufacturer’s design specifications, formulas or performance standards,” said Hawley. “Examples of manufacturing defects include machine components or switches that don’t work correctly or malfunctioning ignition systems and defective air bags.”
The second type of defect is one that occurs in the design of a product, such that the foreseeable risks of using it exceed the benefits, said Hawley.
A safety guard or other safety component that can be easily bypassed may be a defective design, said Hawley.
Manufacturers must also provide “adequate warning” to consumers using products, said Hawley. “If a company knew of a serious risk that could harm the user or should have known about the risk and failed to provide an appropriate warning in the literature accompanying the product, this would be a possible basis for an ‘inadequate warning’ product liability case.”
The failure of a tobacco company to include the health advisory on cigarette packs is the type of omission that could land a company in hot water.
“Non-conformance with prior manufacturer representations” is the fourth type of provable defect.
“This type of defect occurs when a product doesn’t live up to the pre-sale advertising literature because it does not perform like the manufacturer claimed,” Hawley said. “An example might be a product that fails to achieve a production rate or speed that the manufacturer said it would.”
Duncan said one thing many people don’t know is that asbestos cases fall under the umbrella of product liability.
“I handle a lot of these cases,” said Duncan. “Ohio has specific guidelines related to asbestos liability that detail how to prove a case.”