Articles Posted in Defective Products

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Holiday illness compensation claims in South Florida can be made when a buyer of a holiday vacation package suffers an illness that is covered by contract warranty agreement the customer signed with a travel agency.

Many such claims have centered on holiday traveler food poisoning in South Florida or while on a cruise. The most Florida Foodborne Illness Surveillance and Investigation Annual Report indicated a total of 37 outbreaks for 2011. Foodborne illness statistics in Florida were most recently updated by the state health department in 2011, and tourism has increased steadily since then, so we can expect the true numbers are likely higher.

Common Holiday Illness Compensation Claims in Florida

Some of the most common types of illness resulting in holiday illness compensation claims in South Florida include: Continue reading →

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Feasting with friends and family is one of the many celebrated holiday traditions. Although we tend to think of the winter holiday season as one where we spread family recipes, cheer and gifts, the truth is food poisoning on holiday in South Florida is unfortunately too common.

Of course, food poisoning can occur at any time, but our South Florida injury lawyers know some of the problems that can lead to foodborne illness during this otherwise festive time include:

  • Restaurants, grocery stores, cruise ships, hotels and food processing plants are extremely busy in the latter months of the year. This can lead to overlooking important sanitary guidelines for food safety.
  • Mail-order foods – especially meats, cheeses, fruits and seafood – can be especially hazardous if not properly packed, shipped, stored and delivered. These are popular items in gift baskets this time of year.
  • Holiday buffets, whether at restaurants, office parties or family gatherings can become breeding grounds for foodborne illness when food is left out for long stretches.
  • Amateur cooks (and sometimes even experienced ones) are rushed and sometimes fail to follow proper food prep safety.
  • Certain popular holiday foods, such as eggnog, turkey and even baked goods can be hazardous if not properly prepared or surfaces thoroughly cleaned.
  • Growers and distributors may not properly label “post-purge” dates on food items sold in stores and wholesale to restaurants.

Symptoms of a foodborne illness include stomach cramps, diarrhea, vomiting, headaches, aches, flu-like systems, and lethargy. Although most people can recover from food poisoning, those with compromised immune systems, children and the elderly may be especially vulnerable to developing serious complications. If you have fallen seriously ill as a result of food poisoning on holiday, contact our South Florida injury lawyers for information about your legal options.  Continue reading →

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Baby injuries caused by infant walkers have shrunk has the standards for these child products have tightened. Fewer people are using them and product designs are more stringent. However, a new study has found that despite this, there are still thousands of baby injuries every year, supporting the stance of may child safety, health and advocacy groups that these products should be banned. 

It’s not a new position. For instance, the American Academy of Pediatrics has been pushing for a ban on these devices as far back as 1982, when concerns among health care professionals was first raised.

West Palm Beach defective product injury attorneys have noted many of the product liability lawsuits filed against manufacturers and distributors have founded their claims on theories of strict liability (unreasonably dangerous when used as intended), negligence (defective design, defective manufacturing and failure to warn) and breach of express and implied warranties concerning safety. Continue reading →

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If you are injured by a product – whether it’s a defective vehicle or a faulty power tool – proving the manufacturer (or anyone in the chain of distribution) liable involves (per the Third Restatement of Torts) the existence of alternative design the main test to ascertain whether a product is defective. This provision holds that a product is defective in design only when the foreseeable risk of harm posed by that product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller. 

However, many states have been highly critical of this test, and Florida is one of those places wherein it’s been explicitly rejected. In 2015, the Florida Supreme Court in the 68-page ruling of Aubin v. Union Carbide Corpheld that it would retain the approach of the Second Restatement of Torts (which does not place this additional burden on consumers). The court ruled that in some instances in strict liability claims, the Third Restatement might shield manufacturers from all liability for products that are unreasonably dangerous simply because an alternative design for that product might be unavailable – even when, in some cases, the product may be in defective condition that’s unreasonably dangerous to the user. Further, the Third Restatement runs contrary to case law precedent set in this state, the court held.

However, federal courts often still use this test (though state law may still be applied). But as a recent case before the Fifth Circuit Court of Appeals shows, there is still opportunity to prevail.  Continue reading →

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The top court in Massachusetts ruled recently that consumers can sue brand name drug manufacturers over injuries caused by generic versions of their drugs/ treatments made by other companies. 

This ruling – and a growing number like it – are important in product liability law following the 2011 U.S. Supreme Court ruling in Pliva v. Mensing, which held generic drug makers couldn’t be liable for failure to warn about a dangerous drug because those companies are required to use the exact same safety label as the brand name version. Generic drugs account for about 80 percent of all prescription medications distributed in the U.S. Pliva created a quagmire for consumers because generic manufacturers denied responsibility for creating the labels, but then brand name drug makers were successfully arguing they shouldn’t be liable for drugs they didn’t make or sell. Another 5-4 ruling by the highest court in Mutual Pharmaceutical Co. v. Bartlett reaffirmed this. Plaintiff suffered horrific injuries after taking a generic version of a pain medication and sought to sue generic drug makers for defective design. As then-Justice Samuel Alito remarked in the majority opinion, “Sympathy for the respondent does not relieve us of the responsibility of following the law.”

What the recent case, Rafferty v. Merck & Co. Inc., helps establish is that drug makers can still be held accountable when those medications harm consumers. Although this was an out-of-state case, our Orlando personal injury attorneys recognize that this is a ruling to which many state high courts will likely turn when facing similar issues. Continue reading →

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We trust that the products we purchase will be safe for the purpose intended. We also trust that when promises are made that a product will protect us from a given danger – whether that promise is express or implied – that it will do so. 

The solar eclipse that took place last month was an historic event, and people across the U.S. were eager to have an opportunity to experience it. Special sunglasses that could filter out the sun’s harmful ultra-violet rays were a must-have, and they were in particularly high demand.

However, according to one lawsuit, some manufacturers and vendors sold glasses that were not powerful enough to adequately block the dangerous rays, resulting in a range of vision problems, ranging from temporary discomfort to permanent blindness.

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A man who suffered catastrophic injuries due to a ladder fall emerged victorious in his personal injury lawsuit against the manufacturer of the ladder from which he fell. The $11 million verdict he won at trial will stand, following a recent review by the U.S. Court of Appeals for the Seventh Circuit.

In Baugh v. Cuprum, defendant manufacturer appealed the trial court’s refusal to grant a new trial on the grounds the district court wrongly allowed two of plaintiff’s expert witnesses to testify about critical issues. However, the appellate court ruled that both methodologies used by the two expert witnesses were adequate and most of defendant’s complaints were regarding the weight given to that expert witness testimony, rather than the admissibility. Defendant also argued it was entitled to a judgment in its favor as a matter of law because plaintiff failed to show the ladder was unreasonably dangerous and that this issue was the most likely cause of plaintiff’s accident. Here again, though, the court found there was sufficient evidence that demonstrated the accident was more likely caused by the ladder’s original design defect as opposed to any wrongful use of it, and there was also enough evidence that a reasonable alternative design existed. Therefore, the court affirmed the judgment.

Although multi-million dollar verdicts may not always be the norm, ladder falls are quite common. In fact, they are increasing. Between 1990 and 2005, the American Journal of Preventative Medicine reported the number of ladder-related injuries in the U.S. rose by 50 percent, with almost 1 in 10 victims needing to be hospitalized. The American Academy of Orthopedic Surgeons reports that 500,000 people are treated every year for ladder-related injuries and about 300 of those are fatal. These injuries are estimated to cost us all approximately $11 billion a year.  Continue reading →

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A man using chemical paint remover was seriously injured when the substance ignited and burned him. He and his wife filed a product liability lawsuit against the manufacturer of that chemical, alleging the warning labels were inadequate and the product was defectively designed. 

A federal district court in Illinois granted summary judgment to defendant in Suarez v. W.M. Barr & Co. on both of these counts. Recently, though, the U.S. Court of Appeals for the Seventh Circuit reversed in part. Specifically, the court ruled that while the label on the product did accurately describe the primary risks for consumers, there was a genuine issue of material fact as to whether the product was defectively design based on theories of strict liability and negligence.

Strict product liability is a legal rule that holds sellers, distributors and/ or manufacturers of defective products liable to the person injured by that product, regardless of whether defendant was negligent. In a claim alleging negligence, a defendant’s standard of conduct is central to proving liability. That is, defendant acted in a way that fell below the standard of reasonable conduct. In strict liability cases, however, the idea is that it doesn’t matter how defendant acted. Instead, what must be shown is that the product was in unreasonably dangerous condition, the seller expected/ intended the product would reach the consumer without changes and plaintiff was injured by defective product.  Continue reading →

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The highest court in California is taking on the issue of whether a brand name pharmaceutical company can be held liable for injuries caused by a generic version of a branded drug it no longer owns. 

Many courts are eyeing this case because federal law has essentially left users of generic drugs without much remedy when the drug they use proves defective. That’s because the warning and usage labels are created by the brand name manufacturer, but because brand name manufacturers aren’t the ones making the drugs at issue, many courts have held they cannot be liable. Then, the U.S. Supreme Court’s decision in Pliva v. Mensing limited generic drug makers’ pharmaceutical injury liability. The Pliva decision is complicated, but the gist of it is that generic manufacturers aren’t liable for the injuries caused by their drugs.

In T.H. v. Novartis Pharm. Corp., granted review by the California Supreme Court earlier this month, the appeals court rejected the invitation by the defendant manufacturer to follow other state authorities that have held brand name drug manufacturers can’t be held liable under any theory for injury caused by a product other than its own. Will the California Supreme Court affirm?  Continue reading →

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Federal regulators are mulling a proposal to demand a recall of 90 million additional Takata airbags in the U.S., which would more than triple the number of defective products identified. 

So far, 29 million of the devices have been recalled, with reports that they explode when deployed, sending metal shrapnel and other debris flying into the faces of front seat passengers and drivers. So far, 10 deaths have been linked to the problem and hundreds of others have suffered serious injuries.

At the behest of 10 automakers, a team of rocket scientists set out to identify the source of the rupturing airbags. They discovered the problem was a trifecta of issues: Humidity exposure, defective design and defective manufacturing. This was exacerbated by the fact the company used a volatile substance, ammonium nitrate, in the products.  Continue reading →

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