defective products

Published on: May 4, 2018

Florida Product Liability Injuries and Safer Alternative Design

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 Corp. held 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 →

Published on: April 17, 2018

Court: Brand Name Drug Makers Can be Liable for Generic Labels

By Dean Freeman

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 →

Published on: September 10, 2017

Lawsuit Alleges Eclipse Glasses Caused Permanent Blindness

By Dean Freeman

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.

Continue reading →

Published on: October 18, 2015

Williams v. Clark Sand Company, Inc. – Florida’s Corporate Survival Statute

By Dean Freeman

When a company shuts down operations, pays off creditors and steps away, those involved may believe that’s the end of it and begin moving onto other endeavors. However, if the company has products that may have caused injury to others, the firm could be subject to litigation well after the doors are closed.

In Florida, F.S. 607.1407 is known as the “corporate survival statute,” and it allows plaintiffs in tort actions to bring claims against the company for up to four years after it formally dissolves.

That assumes the company has properly dissolved – and not simply stopped operations – and that there was proper notification of that dissolution, either via public notice or personally to known creditors or claimants.

In the case of Williams v. Clark Sand Company, Inc., the Mississippi Supreme Court was asked to weigh several issues pertaining to Florida’s corporate survival statute, and whether claims regarding latent injuries could be brought more than four years after the corporation dissolved. Continue reading →