Product Liability: FAQ

What is 'strict liability'?

Some persons or companies may be held “strictly liable” for certain activities or products that harm others, even if it can’t be shown they acted negligently or with intent. This theory is important because it protects the community from dangerous products or activities and provides relief for injuries. Strict liability is applied to two different situations which the public should be made aware. These are strict products liability and liability for people engaged in “ultra hazardous activities.”

Strict products liability is applied against merchants of a product who sell abnormally dangerous products. A product may be abnormally dangerous because there is a defect it its design such as a faulty brake pedal, or simply because it lacked adequate warnings. A product may also be abnormally dangerous because of a manufacturing defect which resulted in a single defective product entering the stream of commerce. An example of this is a soda bottle entering the stream of commerce that contains a glass shard. In either case, both the manufacturer and merchant are liable for the sustained injuries that were foreseeable at the time the product was designed and manufactured. It is important to note, casual sellers of products such as those who host garage sales will not be strictly liable as merchants.

Strict liability is also used to protect the public from ultra hazardous activities. An ultra hazardous activity is one that involves a risk of serious harm which cannot be eliminated by the exercise of utmost care. Classic examples of ultra hazardous activities include blasting using dynamite or keeping wild animals. The person who engages in an ultra hazardous activity will be liable for all damage and injuries resulting from the activity regardless of whether they took every single possible precaution imaginable. 

If you have been injured by a defective product or as the result of an ultra hazardous activity, it is important to contact a personal injury attorney immediately. Injury claims are limited by a state’s statute of limitations and failure to file within this period may result in the forfeiture of your claim. 

What is a class action lawsuit?

A class action is a case brought against a company whose actions have damaged many people in a similar way. If the case results in a successful recovery, either through settlement or trial, all class members receive their portion of the amount paid by the wrongdoers.

Can consumers bring class actions relating to products or services?

Absolutely. There have been many successful class actions brought by consumers. Signs of consumer fraud include:

  • Misrepresentations regarding a product or a service.
  • Products or services that just don`t work as they should.
  • Hidden fees or charges, or unexpected billing surprises.
  • Products that wear out early.
  • Use of the product results in injury.

Defective Drug Warning Labels and Off-Label Use

When doctors prescribe drugs they usually take great care to explain the potential side effects you may experience. These warnings are repeated by a pharmacist when you pick up your drugs, and persist on the lengthy warnings labels included with every prescription. These warning labels have been approved by the FDA, often after years of rigorous trials and testing. Drug companies can spend hundreds of millions on drug development which makes the prospect of being denied FDA approval daunting. As a result, drug companies may be inclined to hide or lie about potential side effects of drugs endangering the public.

Drug company duty to consumers
Drug companies are obligated to disclose all known or scientifically knowable risks of a drug for a prescribed use. An adequate warning label for a drug will include information such as dosage, active ingredients, and known harmful side effects. However, it’s often the case a drug is prescribed by a doctor for a use that wasn’t intended, or hasn’t been publically endorsed by the drug developers. This was the case with Fen-Phen. 
What about off-label use?
The drugs Phentermine and Fenfluramine were FDA approved to be used separately as appetite suppressants. The two however were not approved to be used together. After it was discovered the two drugs worked better in combination doctors began to write prescriptions for both to be taken together. When a doctor prescribed a drug for a use not intended or advertised by the developer it’s known as “off-label” uses. Although off-label use is popular in the U.S., drug companies are restricted from advertising their drug for off-label use because the use has not been FDA approved. In the case of Fen-Phen, American Home Products knew of the adverse effects of using the drug combination but failed to report this information to the public. The drugs were selling incredibly well and were popular among dieters. It has since been proven that American Home Products allowed the continuous use of Fen-Phen knowing of the harmful side effects. 
What if my state mandates increased warning labels?
In some instances, states pass their own laws which alter drug labeling in the attempt to make prescriptions safer for the public. Although the FDA has approved a nationwide warning label, a state’s law may demand additional language that has not been FDA approved. Drug companies are in a potential bind as to what labeling to use. This issue came to fruition in 2009 in the case Wyeth v. Levine. Here, a woman was injured by a drug whose warning labels were consistent with the FDA but not her own state’s restrictions. The drug manufacturer argued its warnings were consistent with the FDA, and that state law was preempted, thus voided by federal law. The court ultimately sided with the injured plaintiff and found that in certain situations, labeling alterations required by state law were permitted when the changes improved drug safety. The Court was not persuaded by the fact the FDA had approved the warning label.
What to know when taking prescription medications
Before taking any drug you must be aware of two crucial pieces of information. The first is to find out all the known side effects of the drug. Your doctor is the best resource for this, but doctors can make mistakes. This is why reading the included prescription warnings is an essential check. Secondly, you should ask your doctor whether the prescribed drug is FDA approved, or whether the prescription is for an off-label use. Remember, an off-label use of a drug may not be FDA approved, thus potentially carrying additional unknown risks.
If you have experienced harmful side effects as the result of taking a prescription, the odds are you were warned of the risks. If not, you may have a products liability lawsuit against the drug developer. Contact a personal injury attorney to determine your next course of action. 

Consumer Lawsuits Under the Magnuson-Moss Warranty Act

The Magnuson-Moss Warranty Act is the federal law that governs consumer product warranties. Passed by Congress in 1975, the Act requires manufacturers and sellers of consumer products to provide consumers with detailed information about warranty coverage. In addition, it affects both the rights of consumers and the obligations of warrantors under written warranties.

The Act makes it easier for purchasers to sue for breach of warranty by making breach of warranty a violation of federal law, and by allowing consumers to recover court costs and reasonable attorneys` fees. This means that if you lose a lawsuit for breach of either a written or an implied warranty, you may have to pay the customer`s costs for bringing the suit, including lawyer`s fees.

Because of the stringent federal jurisdictional requirements under the Act, most Magnuson­Moss lawsuits are brought in state court. However, major cases involving many consumers can be brought in federal court as class action suits under the Act.

Although the consumer lawsuit provisions may have little effect on your warranty or your business, they are important to remember if you are involved in warranty disputes.

What is Bisphenol A (BPA)?

Bisphenol A, also called BPA, is a chemical used to make certain types of plastic infant bottles and other plastic products. Scientific studies have found a possible link between exposure to BPA and severe developmental disorders, particularly in newborn children.

Over time, BPA can seep into the body and reach dangerously high levels, where it can disrupt hormones and increase the risk of heart disease and diabetes in adults. Children may be exposed to harmful levels of BPA when they drink milk or eat baby food that is warmed in plastic cups or bottles made with the chemical, leading to permanent and serious injuries.

Because of concerns about children's injuries caused by exposure to BPA, many state and local governments across the United States have imposed bans on infant bottles and other children's products containing the chemical. Also, in 2009, major manufacturers of infant bottles announced they would no longer make products using BPA.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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