What To Do When You’re Injured by a Product in New York
Legal options when something you’ve purchased is more harmful than helpfulBy Steph Weber | Reviewed by Canaan Suitt, J.D. | Last updated on August 14, 2023 Featuring practical insights from contributing attorneys Marie E. Napoli and Ellen Relkin
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- Preserve Evidence of the Defective Product
- Keep Evidence of Defective Medical Devices
- Confirm You Have a Valid Legal Claim
- The Timeline of a Product Liability Claim
- Find an Experienced Product Liability Lawyer
Most products are designed to make consumers’ lives easier or safer. When the opposite happens—and injury or irreparable harm results—a lawsuit against the manufacturer may become necessary.
“Product liability cases commonly involve medical devices, automobiles, aviation, and retail products such as defective coffee machines,” says Marie Napoli, a personal injury lawyer and founding partner at Napoli Shkolnik in New York City.
She says injuries can be wide-ranging: “Traumatic brain injuries, spinal fusions, severe burns and abrasions, and bone fractures requiring internal or external hardware and surgical repair.”
Preserve Evidence of the Defective Product
After seeking medical care, the top priority following an injury should be safeguarding the product and any components. “Do not discard it, and never exchange or send it back to the [manufacturer],” says Napoli. “The defective product itself is always the most critical piece of evidence.”
In automotive and aviation cases, data from the black box—standard on planes and most cars—combined with a timely inspection of the wreckage may uncover a manufacturing defect or failure.
Napoli’s firm represented a pilot whose helicopter crashed after the transmission failed midflight, resulting in the man becoming paraplegic. Accident reconstruction found that a negligent transmission repair—performed by an aviation mechanics company about 13 years earlier—contributed to the incident. The case resulted in a $24.1 million verdict.
Keep Evidence of Defective Medical Devices
Medical devices, like knee and hip implants, are another frequent source of injury.
Consumers may have a successful surgery, then suffer unexplained side effects for years. “People have gone back to their surgeons with complaints of horrible pain and swelling, and no one can put it together” until a manufacturer initiates a recall and notifies consumers, says Ellen Relkin, a personal injury attorney at Weitz & Luxenberg in NYC.
In 2022, Exactech recalled more than 100,000 hip and knee implants. “The implants have a polyethylene liner at the joint that is supposed to last for 20 to 25 years,” Relkin says. “In just two to four years, it was degrading into little particles in the body and causing all sorts of terrible complications,” forcing affected consumers to undergo more surgery. She filed a petition for the creation of a multi-district litigation (MDL), which was granted in October.
“If an implant must be removed, for whatever reason, even if there is no known defect or lawsuit, ensure it gets preserved,” she recommends.
A Sampling of Recent Product Multi-District Litigation (MDL)
Personal injury cases can involve many types of products with design defects or defects resulting from the manufacturing process. Here are examples of recent lawsuits involving consumer products and medical devices:
- 3M Earplugs
- Philips CPAP machines
- Elmiron, interstitial cystitis drug
- Hernia mesh—Ethicon, Atrium Medical Corp., C.R. Bard
- Inferior vena cava filters—C.R. Bard and Cook Medical
- Proton pump inhibitors, including Nexium, Prilosec, Prevacid, Protonix, and Dexilant—AstraZeneca and other PPI manufacturers
Confirm You Have a Valid Legal Claim
Ultimately, Napoli says, you must prove that the product or device was the issue—that it “failed, was improperly designed, or the company was aware of but did not properly warn about a known risk.”
Attorneys will take a detailed history and review medical records to determine if an injury is linked to a defective product. “An injury must be substantial enough to justify the cost of bringing the matter through the litigation process,” Napoli says.
When multiple people have similar injuries caused by the same product, that’s when cases are often consolidated into an MDL, overseen by a federal judge. “The cases for each injured person are still separate, but they’re coordinated for efficient discovery and streamlined procedures,” says Relkin. In some states where several medical companies are headquartered, these cases may be grouped by counties and handled by the state courts.
The Timeline of a Product Liability Claim
Product injury litigation generally takes at least two years—and up to six—to resolve.
Attorneys accept these cases on a contingency fee basis, meaning the injured party does not have to pay a retainer, and the attorneys’ fees are taken from the settlement or award.
Find an Experienced Product Liability Lawyer
To learn more about liability for product defects, including statute of limitations, negligence versus strict liability, and potential recovery for medical bills, lost wages, and pain and suffering, read our overview on product liability law.
Learn more about who you can sue in a product liability lawsuit (for example, product manufacturers, distributors, and retailers).
If you need legal representation, use the Super Lawyers directory to find and contact an experienced New York product liability attorney or law office for legal advice.
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