Consumer Products: Defects, Defenses & Proving Liability

Consumer Products: Defects, Defenses & Proving Liability

For attorneys who represent injured victims, exploring potential products liability claims can be a successful expedition in the fight for full compensation. However, 考虑到大量的消费和零售产品在市场中循环使用, it can also be a daunting and difficult challenge.

As we have discussed, products liability litigation is not for the faint of heart; it requires ample preparation, an insightful approach, 以及大量的资源来对付强大的公司被告和保险公司. Positioning Plaintiffs’ to prevail in their claims begins from the very moment they reach out for help.


Products available to consumers run the gamut from industrial machines and motor vehicles to children’s toys, food and medication, household appliances, and cosmetics. Every product, ostensibly, has a purpose, but not every product is safe before it hits the market.

当怀疑有缺陷的零售产品造成可预防的事故时, injuries, or deaths, 律师的工作始于他们与受害者的第一次对话. Depending on the product, a great deal of exploration into the item, its purpose, and potential problems or reported risks can be found through cursory searches and independent investigation.

在某些情况下,某些政府机构可能对某个产品类别拥有监管领域. The Consumer Product Safety Commission (CPSC), Food & Drug Administration (FDA), 国家公路交通安全管理局(NHTSA)就是其中的几个例子. These agencies may develop minimal safety standards or issue recalls when retailers fail to do so voluntarily, and can be a resource for determining whether products have been the subject of previous complaints or reported injuries, 并就类似或竞争产品相关的问题提供见解.

Whatever a specific product at issue may be, Plaintiffs who bring claims over consumer products generally do so under three basic strict liability theories:

  • The design defect theory, 哪个声称产品的设计在某种程度上有缺陷, and makes the product unreasonably dangerous. In many consumer products cases, a design defect can be proven by establishing that the product’s design did not meet an ordinary consumer’s expectation of safety (CACI 1203).
  • The manufacturing defect theory, which claims a product is unreasonably dangerous due to a deviation in the design or specifications from the typical product or the typical manufacturing process (CACI 1201).
  • The marketing defect theory (or failure to warn), which generally claims a product did not come with adequate instructions or warnings about potential risks that were known, or should have been known, by the manufacturer (CACI 1205).

Many products cases are hinged on claims of design defects 以及未能发出警告,这两种情况都有一些共同的证据,包括:

  • Proof that the product was in a “substantially similar” condition at the time of injury as it was at the time it was produced and released by the manufacturer;
  • 产品以“合理可预见”的方式被使用或误用的证明;
  • 证明该缺陷是原告受到伤害的“实质原因”.

除了设计缺陷,许多产品案例还声称未能发出警告. This is common when products are inherently dangerous to the point that no amount of care in the product’s design or manufacture can eliminate risks of harm to users.

For these products, manufacturers commonly owe a duty to warn consumers or users. A claim based on a marketing defect, therefore, raises the claim that the defect is the failure to instruct or warn consumers about potential risks, and how those risks can be mitigated or avoided.

为了证明未能充分发出警告的责任-或作为疏忽索赔(CACI 1222) or a strict liability claim (CACI 1205) -被告的行为必须是造成伤害的一个重要因素. 证明“实质因素”因素是有挑战性的, 因为原告必须证明他们不仅会阅读, understood, and remembered a warning, 但他们也会相应地改变自己的行为,以避免伤害.

在未能警告病例的情况下,需要回答的问题通常是: 一个适当的警告或指示会有什么不同呢?

Design and marketing defect claims may be the most common theories of liability in products cases, but Plaintiffs’ attorneys can plead multiple causes of action to strengthen their case and gain additional leverage. 这可能包括对三个主要缺陷(设计)中的任何一个提出抗辩, manufacturing and / or marketing defect), or bringing a claim under both a negligence and 严格责任理论(如未发出警告的情况).

除了严格责任诉讼原因外,原告可以选择提出其他索赔, such as:

  • Breach of warranty, which claims a consumer was harmed by a product because it was not of the quality the buyer would expect (breach of implied warranty of merchantability, CACI 1231)或因为产品没有被代表(违反明示保证, CACI 1230).
  • Failure to recall or retrofit, which claims a manufacturer and / or distributor became aware of product defects after the product was sold (CACI 1223).
  • Negligent product rental, which claims a person or party that rented a product failed to use reasonable care to inspect the product for defects, make them safe for their intended use, and adequately warn of any known dangers (CACI 1224).

Pleading multiple causes of action, and particularly those based on negligence, 可以为陪审团提供更多的理由,让被告承担更大的过失, if supported by the fact and argued compellingly.

Common Defenses

消费者产品案的被告和保险公司展开了激烈的竞争, 这就是为什么原告必须为任何数量的辩护做好准备. Some of the most common include:

  • 比较过失—原告和/或第三方的比较过失.
  • Product misuse or modification
  • 高级用户(在许多普通消费品中不常见)
  • 父母的疏忽(就儿童玩具而言)

在消费品案件中,被告常常指控消费者的疏忽, or other parties. 如果原告疏忽使用或滥用该产品, and / or modified the product, for example, damages may be reduced by a percentage of allocated fault if their conduct was a substantial factor in causing the injury. 被告还可能辩称,其他各方的疏忽在事故中发挥了作用, such as negligent inspection or product repair, in order to reduce their liability.

Plaintiffs’ attorneys would be well-served to anticipate products Defendants’ efforts to ascribe as much fault as possible to Plaintiffs and third parties, and strategize ways to plead multiple causes of action in one single products liability action.

Investigation & Discovery: A Roadmap to Liability

Proving liability in any consumer products case can vary depending on the specific facts and product involved. There are, however, some key steps Plaintiffs’ attorneys can take to best position their clients for a successful claim – as well as things clients can do to assist their attorneys in their pre-litigation workup and products investigation:

  • Secure the product: 在消费品案例中,保存产品是最重要的步骤, as it will help establish whether a product was “substantially similar” in condition at the time of injury as it was at the time of production, and allow for further examination. 原告律师应立即收回该产品, including any pieces or components, and secure the product in an evidence storage facility that can be safely accessed when needed by either side.
  • Research the product: 原告的律师可以从仔细研究问题产品中获益良多. 互联网可以是一个关于产品的信息宝库, its uses, and other consumers’ experiences with the product, including any problems with performance, risks, or injuries. The CPSC and related government agencies may provide insight as to whether a particular product is the subject of complaints or reported injuries, pending investigations, or litigation. In some cases, however, a defect may not affect all product units, or may not yet be discovered. Additionally, 如果产品还可以购买,律师可以自己购买, evaluate instructions, labeling, and warnings, assemble the product, 并使用产品来熟悉它的工作原理, or where potential risks may exist.
  • Secure immediately available documentation: Plaintiffs can help their attorneys and their cases by preserving any and all documentation related to the product and their injury. This includes all packaging, instructions, manuals, ancillary items, receipts, medical records, and any reports or correspondence with potential defendants they may have in their possession.
  • Client interviews: Plaintiffs themselves are often the best, and sometimes only, 关于产品和事故的信息来源. As such, 经验丰富的律师会从与客户的谈话中收集大量的笔记, witnesses, and / or families. 客户对话应该集中在回答基本问题上,例如:
    • When a product was purchased and from where
    • 消费者是否意识到任何与产品相关的风险或危害
    • Who assembled the product, how the product was assembled, whether instructions were used, 装配过程中是否遇到问题
    • 产品是否以任何方式进行了修改,如果是,修改的方式和时间
    • 产品是否按照所提供的说明使用
    • How a product was being used at the time of injury
    • 消费者在受伤前是否经历过产品的任何问题
  • Witnesses: Witnesses who saw the accident or the assembly / use of a consumer product should certainly be evaluated and potentially interviewed. Additionally, expert witnesses can provide insight into issues related to a specific product or a product class in general. 即使他们在风险-收益测试中没有被用作证据, industry experts can provide direction as attorneys continue to investigate and build their clients’ claims.
  • Informal & formal discovery: Attorneys can accumulate a great deal of information and documentation through informal and formal means, 包括来自执法部门的报告或调查, first responders, 雇主/企业(如在工作中发生意外), school, child care facilities, or a place of business), and any regulatory agency (such as OSHA). 律师也可以搜索任何未决诉讼的信息, 投诉或报告涉及产品的事故, 以及其他公开的相关文件. 通过与被告建立联系, counsel can also request or issue demands for production of evidence specifically related to the product, including internal design and manufacturing specifications (as well as proposed or implemented alterations), testing reports, internal complaints, correspondence, etc.

如果您对潜在的产品缺陷有疑问,以及Biren Law Group如何提供帮助, 我们可以通过免费的保密咨询来讨论您的问题. 十大电子游艺平台首选父子法律团队有丰富的经验诉讼产品责任索赔, and has the resources and insight to help clients and colleagues in a range of complex actions. Call or contact us online


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