Answers To The Most Frequently Asked Questions In Defective Product Cases

1. If I am injured or a loved one is killed by a defective product, who can I sue?

You can sue the manufacturer of the product and every company that was in the marketing chain of the product; i.e., wholesalers, distributors and retailers.

2. What products are covered under California product liability law?

Virtually every product is subject to California product liability law. This includes everything from cars to toys to chairs to refrigerators to clothing to industrial machines, household equipment, etc. (There are some limitations in cases against medical device manufacturers and prescription drug companies.)

3. Isn't it hard to take on a product manufacturer in a legal case?

Yes. Product manufacturers spend hundreds of thousands of dollars in any given case attempting to defend the design and manufacture of their products. If they lose a case, it can have monumental consequences for the manufacturer far beyond your case. Therefore, it will spend whatever money it needs to spend to win the case.

Further, manufacturers rarely settle cases without a big battle because of their concern that it might bring on cases by other individuals who are injured or killed by their products. The only way that a plaintiff can be successful in most product liability cases is to hire an attorney who has the resources to take on a large manufacturer.

4. If the product manufacturers spend so much money defending cases, how does a plaintiff ever win?

Because the law is on the side of victims of defective products.

Thankfully, California applies a "strict liability" standard to defective product cases. That means that a plaintiff does not have to prove negligence to prevail. Liability (fault) will be found if the plaintiff can prove that the product was defective and that it caused the plaintiff an injury.

5. What constitutes a defective product under California law?

A product may be found to be defective because of a manufacturing defect, a design defect or a warning defect. If plaintiff can prove any one of these defects, he or she will win the case against the manufacturer.

6. What is a manufacturing defect?

A manufacturing defect exists if, when the product left the manufacturer's control, it differed from the manufacturer's intended result or from apparently identical products of the same manufacturer and the product was used in a manner reasonably foreseeable by the defendant, but nonetheless caused plaintiff injury. An example of this type of defect would be an exploding soda bottle.

7. What is a design defect?

A design defect exists when a product is manufactured exactly as the manufacturer intended, yet the product is legally defective because of a design flaw.

There are two tests to determine whether a design is defective. One is the "consumer expectation test" which asks if the product performed as safely as an ordinary consumer would expect. The second is the "risk benefit test" where the question is asked if the inherent dangers of the product outweigh its benefits.

8. What if the products contained a disclaimer? Does the manufacturer still have a duty to warn?

A product manufacturer cannot avoid a strict liability claim by placing any type of disclaimer on the product. Disclaimers are unenforceable for the purposes of product liability law.

Further, a product that is not otherwise defective in manufacture or design may still be considered legally defective if a suitable warning about its dangerous propensities is not given or the manufacturer fails to provide appropriate safe use instructions.

9. What if the product that injured me is old?

The age of a product does not act as an automatic bar to a product liability suit. However, older products are not expected to meet modern standards of production and safety.

The key question is whether at the time the product was manufactured, it was improperly manufactured or it did not meet standards of design and warning that were in affect at the date of manufacture.

10. What damages can I recover in a defective product case?

If a plaintiff can prove that the product is defective, he or she is entitled to recover damages for past and future medical treatment, past and future wage loss, damages for pain, suffering and emotional distress, and, if the plaintiff can establish bad enough conduct on the part of the company punitive damages (i.e. damages intended to punish the manufacturer).

If the plaintiff dies, his or her survivors are entitled to recover full compensation for their economic losses that result from the plaintiff's death as well as emotional distress damages which stem from the loss of society care and comfort of the decedent. If the survivors can prove that the plaintiff lived for a period of time between the negligent act and death, they can also bring an action for punitive damages.

11. Do I need to retain an attorney and how soon?

Absolutely. Unless you are looking for a nuisance settlement, it is almost unheard of for a product manufacturer to settle a case without plaintiff retaining an attorney. Defective product cases must generally be brought within two years from the date of your discovery of your injury. But since early investigation is so critical in a product liability case, you should retain an attorney as soon as you can.

12. Will my defective product case settle out of court?

Maybe. Although most cases settle out of court, product liability cases may be the exception since the manufacturer does not want to admit it designed a defective product. Even with a confidential settlement, there is a hesitancy to settle. This is why you need to retain an attorney who is willing to take the time and expend the money necessary to try a product liability case.

Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.