If a defective product causes injury, death or property damage, the manufacturer or seller of that product might be liable to the injured party. Most states, including Texas, have adopted strict liability for defective products, a theory that does not require proof of negligence or fault.
Product liability actions generally involve either a defect in the manufacturing process, a defective design or defective marketing.
Defects in the manufacturing process include metallurgical flaws, inadequate welds and contamination of food and other materials for human ingestion. To be successful, the plaintiff must prove that the defect existed when the product left the defendant’s control and that it rendered the product “unreasonably dangerous” which is defined as being “dangerous to an extent beyond which would be contemplated by the ordinary user of the product with the ordinary knowledge common to the community of the product’s characteristics.”
Examples of defective design cases include the notorious Pinto gas tank explosions. The plaintiff must prove that the product was “unreasonably dangerous” because of a design characteristic. Texas and many other states also require proof that a technologically and economically feasible “safer alternative design” existed at the time the product was manufactured, and that such design would have prevented or lessened the likelihood of the accident. Defective marketing cases primarily involve the failure to provide adequate warnings or instructions. Examples include drugs and other products that are not accompanied by adequate warnings of health risks and hazards. Texas law defines an adequate warning as one “given in a form that could reasonably be expected to catch the attention of a reasonably prudent person in the circumstances of the product’s use; and the content of the warnings and instructions must be comprehensible to the average user and must convey a fair indication of the nature and extent of the danger and how to avoid it to the mind of a reasonably person.”
Although the plaintiff need not prove fault to establish liability for a defective product, the plaintiff’s own fault can serve as a defense for the manufacturer or seller. If the plaintiff is more than 50 percent negligent, he is barred from recovery in most cases.
Product liability litigation was developed in order to protect consumers from dangerous products, and to require manufacturers and sellers to make their products safe. One of the judges whose opinions laid the foundation for today’s product liability law was Roger Traynor, chief justice of the California Supreme Court. In his landmark decision, Escola v. Coca-Cola Bottling Co., he wrote that:
“The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they many cause upon the manufacturer, who even if he is not negligent in the manufacture of the product, is responsible for it reaching the market.”
Product liability litigation has been responsible for the elimination from the market of hundreds of dangerous drugs, machines, toys, automobiles and personal items, so it is not surprising that it has been the target of the self-styled “tort reformers.”
In Texas, for example, insurance lobbyists have worked for two decades to erode strict product liability. In the 2003 session, two measures were passed that provided defenses for manufacturers whose products comply with government standards, even if the manufacturers’ lobbyists wrote those standards, and for drug manufacturers whose package inserts were approved by the under-funded, impotent FDA, even if approval was later revoked. Product liability cases are complicated and expensive. Hartley Hampton has handled cases involving defective drugs, medical devices, industrial machinery, drilling rigs and automobiles.
We work strictly on a contingent fee basis and advance all of the investigation, development and court costs. Those expenses, plus our fee, are deducted from the ultimate recovery. If we are not successful, we absorb all costs and charge no fee.