What To Do if You’re Injured by a Defective Product

We all use dozens of products on a daily basis. 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?

Product liability lawsuits allow injury victims to recover compensation from the manufacturer, distributor, or seller. To understand your legal options, talk to a product liability lawyer.

What Is a Product Liability Case?

In a defective product or product liability lawsuit, a plaintiff must prove that they suffered harm or product injury because a company failed to live up to its legal responsibilities.

“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.

Gather Evidence To Establish a Product Liability Claim

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.”

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,” says attorney Scott Schlesinger, a plaintiff’s product liability attorney at Schlesinger Law Offices in Fort Lauderdale. Police reports, medical records, and photos of you using the product or the resulting damage can further substantiate allegations.

Evidence in Product Liability Cases Involving 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).

“If an implant must be removed, for whatever reason, even if there is no known defect or lawsuit, ensure it gets preserved,” she recommends.

Digging Into the Details About the Defective Product

Figuring out where the fault lies is no simple feat. The way to determine if an injury or death is related to a product’s design defect or manufacturing defect is to conduct a detailed investigation, says Miami attorney Kristina Infante at Podhurst Orseck, with experience in product 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 the potential scope of the issue. It’s a time-consuming and costly process — conducting interviews, consulting industry expert witnesses, and scouring records.

However, these attorneys usually work on contingency, with no cost to the injured party, and collect a fee only if they win an award or settlement.

The Timeline of a Product Liability Case

“There is always risk in a products case when you’re going against a large company that has a design team and a product design section and a lot of assets, and it takes a lot of work and a lot of time to get a case like that prepared and ready for trial,” says David J. Hodge, a product liability lawyer at Morris, King and Hodge in Huntsville. On average, he estimates it takes two or three years to resolve a product liability case.

Not every claim is viable, of course, particularly if there is no clear connection between the injury and the product. Products with hundreds or thousands of similarly injured parties usually enter a class action. In a class action lawsuit, a group collectively pursues a settlement against the manufacturer.

Product liability cases can take years to wrap up, leaving those injured wishing there was 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.”

Consolidating Product Liability Cases in Multi-District Litigation

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 there are headquarters for several medical companies, these cases may be grouped by counties and handled by the state courts.

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.

A Sampling of Recent Product Liability Suits

Here are some recent notable product liability cases:

• 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

Damages May Go Beyond Physical Injuries

While product liability cases may involve everything from minor to catastrophic injuries or death. In a breach of warranty claim, consumers who aren’t physically injured may seek compensation for the financial losses from a defective product.

For example, 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. They had to replace the tires frequently, which also created a safety issue,” she says.

Sometimes it’s not just the product manufacturer who is on the hook for damages, adds Schlesinger. Anybody who maintains or distributes that product in the stream of commerce might be liable, including the retailer.

Cost of Hiring a Product Defect Lawyer

Defective product lawyers commonly offer a free consultation. They typically charge on a contingency basis, meaning they are only compensated if the case wins at trial or settles.

In that event, they commonly take between 33 and 40 percent of the award, or possibly higher. “It depends on the law firm, the case, the risk involved, and the costs in presenting it,” Hodge says.

Find an Experienced Product Liability Attorney

A personal injury lawyer can help you get compensation after a product defect injury. Damages in a product liability legal claim can include medical bills, the cost of future medical care, lost wages, and pain and suffering.

Most product liability lawsuits end in a settlement instead of going to trial. A defective product lawyer can negotiate to get you a fair settlement to pay for your injuries.

“A couple of years ago, I had a case involving a household item that blinded a client,” Hodge recalls. “It was a fairly obvious design issue. After the case, the defendant stopped manufacturing it in that fashion. There’s a lot of reward when you see that kind of outcome — not just your client, but anyone else who might be harmed. It’s why I do what I do.”

If you or a loved one were injured by a defective product, talk to an experienced attorney for legal advice. Visit the Super Lawyers directory to find a product liability lawyer in your area.