When Products Hurt

We all use dozens of products daily. Whether home goods, food, medical devices or vehicles, you expect purchases to have been extensively vetted before going to market. So if a product hurts you or otherwise falls short of its promises, what recourse do you have?    

Collecting Evidence 

That depends on the available evidence, says attorney Scott Schlesinger, who handles plaintiff’s products liability cases at Schlesinger Law Offices in Fort Lauderdale. “Did you use the product as intended? Did it malfunction and cause a complication or injury?” If yes, never throw out the product and keep as much accompanying documentation as possible—such as proof of purchase and maintenance or repair receipts. 

“The defense is always going to try to disconnect you from the causation or from even being a customer,” Schlesinger says. Police reports, medical records, and photos of you using the product or the resulting damage can further substantiate allegations.  

“If you have complications from a hip replacement, like metallosis due to metal-on-metal friction, and need revision surgery, ask to keep the implant they take out,” advises Schlesinger. If you’re turned down, don’t worry; an attorney can often track down the relevant information from your medical records. 

Digging into Details

Figuring out where fault lies is no simple feat. The only way to determine if an injury or death is related to a product’s flawed design or manufacturing defect is to conduct a detailed investigation, says Miami attorney Kristina Infante at Podhurst Orseck, who is experienced in products liability cases. Until then, she cautions, “don’t count yourself out” by assuming it’s just an unfortunate accident.

Attorneys will want to gather information and evidence to identify the mechanism of injury and potential scope of the issue. It’s a time-consuming and costly process—conducting interviews, consulting industry experts, and scouring records—but they usually work on contingency, with no cost to the injured party, and collect a fee only if an award or settlement is reached.  

Proceedings and Timeline

Not every claim is viable, of course, particularly if no clear connection can be made between the injury and the product. Products with hundreds or thousands of similarly injured parties usually enter a class action, in which the group collectively pursues a settlement against the manufacturer. Others may proceed as individual lawsuits, like a wrongful death complaint Infante filed on behalf of three victims’ families after her investigation found that a defect in a helicopter’s main rotor blades caused them to come unglued midflight. 

Products liability matters can take months and even years to wrap up, leaving those injured wishing there were more they could do. And there may be. “We do a lot of investigative work using the internet, and it’s something that anyone who’s suffered a loss can do,” says Infante. “I’ve had clients who revel in chasing down information and finding people who’ve experienced the same problem just as much as I do. … That can be a really fun collaboration.”  

Beyond Physical Injuries

While products liability cases may involve everything from minor to catastrophic injuries or death, people experience hurt in other ways, too. In a breach of warranty claim, consumers who aren’t necessarily physically injured may seek compensation for the financial losses incurred from a defective or poor quality product. 

When Volkswagen sold new vehicles with bad suspension systems, resulting in premature tire tread wear, Infante represented 300,000 consumers in a class action that settled for $57 million. “Because of the defect, the price they paid for their vehicle was not really what it was worth, and they had to replace the tires frequently, which also created a safety issue,” she says. 

Sometimes it’s not just the manufacturer who is on the hook for damages, adds Schlesinger, reiterating the importance of a thorough investigation that considers all contributing factors: “Anybody who maintains or distributes that product in the stream of commerce might be liable,” including the final retail seller.

A Sampling of Recent Products Liability Suits

• Automobile airbags—Acura, BMW, Chrysler, Dodge, Ford, Honda, Mazda
• Baby formula—Abbott Laboratories, Mead Johnson
• Hernia mesh—Ethicon, Atrium Medical Corp., C.R. Bard
• Hip implants—DePuy, Exactech, Stryker, Zimmer Biomet
• Monsanto Roundup weed killer
• Philips CPAP machines