Product Liability

“Product liability” refers to claims against the makers and sellers of dangerous products. Those claims are typically framed as either “negligence,” which is the same claim used against everyone from someone driving a car who runs a stop sign to a neurosurgeon who does a sub-standard brain surgery, or “strict liability,” a claim particular to the manufacturers and sellers of products used by the public.

As the Pennsylvania Supreme Court has said many times, strict liability “covers the sale of any product which, if it should prove to be defective, may be expected to cause physical harm to the consumer or his property.” Tincher v. Omega Flex, Inc., 104 A. 3d 328 (2014). In New Jersey, the Product Liability Act requires “proof product was defective, defect existed when product left manufacturer’s control, defect proximately caused injuries to plaintiff, and plaintiff was reasonably foreseeable or intended user.” Sinclair v. Merck & Co., Inc., 948 A. 2d 587 (2008).

When it comes down to it, product liability lawyers spend a lot of time arguing in front of the court what it means for a product to be “defective,” and then a lot of time working with experts in a  variety of scientific and medical fields to prove that a particular consumer product was “defective.” The biggest difficulty is making that explanation simple.

When a lawyer represents a client injured by a defective product, they need to:

  1. Bring together world-class experts with strong credentials in the field.
  2. Get every piece of evidence they can about the product, through discovery in court, subpoenas, and reaching out to other lawyers and public safety groups.
  3. Engage with their experts discussing the facts and the science, to leave no holes in the logical proof of the case.
  4. Find a way to present that to a jury that, until they were picked, had no knowledge of the technical information behind the product.

A great example of this process at work was when the physicist Richard Feynman was part of the team investigating the Challenger space shuttle disaster. The causes of the disaster were immensely complicated, but when Feynman brought out a plastic “o-ring” like the ones used on the shuttle, dipped in ice water, and showed how it didn’t bend as well, and how it would break under tension, then suddenly it all made sense. What didn’t make sense was how the NASA team hadn’t stopped the launch, given what they knew about the effect of cold temperatures on the parts of the shuttle.

An example case we handled:

We represented a retired police officer who had left the police force after suffering a severe back injury. He went through several back operations until, finally, he was implanted with titanium alloy rods. They worked well until, suddenly, one of them broke. How does titanium break under the natural forces of a human body?

The case wasn’t easy, because, obviously, the plaintiff had a history of back problems, and so the defendant medical device company pointed to his long history of back problems is the cause of his current problems, rather than the defect in the implant. We brought together biomechanical engineers and designers of medical implants, and then dove deep into the history of the product, stretching all the way from the original design specifications continuing all the way into the device being voluntarily withdrawn from the market in the face of an order from the FDA that they conduct more testing. We deposed the doctor who implanted the device — who had close ties to the company and tried to help the company — and got him to admit that he had relied entirely on the company’s statements about the implant.

When all was said and done, we were able to show that the medical device company had never bothered any testing at all for the conditions it would be used in, and certainly none relating to its use in humans. Indeed, we were able to show that the company should never have asked for FDA approval at all: the company had obtained FDA approval by saying there implant was “substantially equivalent” to another implant on the market, but we are able to show that they used different materials and a different design. The case was now so compelling we reached a confidential six-figure settlement before having to produce the full reports of our experts, thereby avoiding additional costs that the client would have had to reimburse from their settlement.

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