1. INTRODUCTION:
Strict product liability came into existence in the middle of the last century. The idea behind recognizing the theory called Strict Product Liability was that in our modern commercial society, there were more and more products circulating through the economy causing injuries without anyone being held responsible for the injuries caused by these defective products.

When these products had defects and caused injuries, the traditional theories of negligence or breach of warranty often did not apply.

Negligence required that the producer knew of should have known of the defect, which frequently was not possible with modern manufacturing techniques, where there were often many contractors for each sub-component of the product or material was incorporated that had concealed faults such as inclusions in forged metal pieces.

Breach of warranty was not a viable alternative since there was usually no direct relationship between the producer of the product and the consumer of the product so that the traditionally warranties of quality were not always received by the consumer from the producer.

Strict product liability imposed liability on the producer and all distributors of a defective product for injuries that were caused by the defect. The cost of injuries caused by the defective product would be born by the individuals and companies that were in the producing and distributing enterprise of the product as part of the cost of that product.

This article will summarize the theories of strict product liability, and then will discuss some of the issues that commonly arise in a products liability case. This article is intended to help a media person better understand an ongoing products liability case. Suggested questions to ask someone involved in a product liability case will be scattered throughout the analysis.



2. FOUR THEORIES OF PRODUCT LIABILITY:
There are four different theories of product liability. These theories include liability based on: (i) design defect; (ii) manufacturing defect; and (iii) failure to warn. A design defect can be based on either: (i-a) a risk-benefit analysis; or (i-b) consumer expectation test.

Each of these four different theories of strict product liability will be discussed in the following four sub-sections.

A. “Risk-benefit Analysis” for Design Defect Liability:

The “Risk-Benefit Analysis” approach to establishing strict product liability is the classic and most widely recognized basis for proving a strict product liability case.

Under the risk-benefit analysis, a product is defective if the risk of danger inherent in the design outweighs the benefits of such design.

In a risk-benefit analysis case, the plaintiff (i.e., the injured party) needs to prove each of the following four facts:


1. That the defendant manufactured/distributed/sold the product;
2. That, at the time of the use, the product was substantially the same as when it left defendant’s possession, or that any changes made to the product after it left defendant’s possession were reasonably foreseeable to the defendant;
3. That the product was used or misused in a way that was reasonably foreseeable to the defendant; and
4. That the product’s design was a substantial factor in causing harm to the plaintiff.


If the plaintiff proves each of these four facts, the defendant is liable for the injury unless the defendant proves that the benefits of the design outweigh the risks of the design. The jury evaluates whether the benefits outweigh the risks by considering the following factors:


1. The gravity of the potential harm resulting from the use of the product;
2. The likelihood that such harm would occur;
3. The feasibility of an alternative design;
4. The cost of an alternative design;
5. The disadvantages of an alternative design;


What is important about the risk-benefit analysis for attorneys involved in products liability, is that a plaintiff needs only show that the product caused the injury in question – then the burden shifts to the defendant to show that the design of the product is good, i.e., that the benefits of the product’s design outweigh the risks of that design.

In a risk-benefit case, experts are used to discuss the feasibility and cost of alternative designs, as well as the likelihood of injury from the design.

B. “Consumer Expectation Test” for Design Defect`liability:

Under the “Consumer Expectation Test” for design defect liability, a plaintiff is claiming that the product’s design was defective because the product did not perform as safely as an ordinary consumer would have expected it to perform.

To establish design defect liability based on the consumer expectation test, the plaintiff must prove each of the following facts:

1. That the defendant manufactured/distributed/sold the product;
2. That, at the time of the use, the product was substantially the same as when it left the defendant’s possession, or that any changes made to the product after it left the defendant’s possession were reasonably foreseeable to the defendant;
3. That the product did not perform as safely as an ordinary consumer would have expected at the time of use;
4. That the product was used or misused in a way that was reasonably foreseeable to the defendant;
5. That the plaintiff was harmed; and
6. That the product’s design was a substantial factor in causing plaintiff’s harm.


What is important about the risk-benefit analysis for attorneys involved in products liability, is that a plaintiff needs only show that the product did not perform as safely as an ordinary consumer would have expected. There is no comparison of the cost or feasibility of alternative designs. The issue is simply how would an ordinary consumer expect the product to perform. Usually no design experts are permitted in consumer expectation case so there is no battle of the experts in these cases

C. “Manufacturing Defect” Product Liability:

A product contains a “manufacturing defect” if the product differs from the manufacturer’s design or specifications or from other typical units of the same product line.

To prove a case for manufacturing defect liability, an injured plaintiff must prove each of the following facts:


1. That the defendant manufactured/distributed/sold the product;
2. That the product contained a “manufacturing defect” when it left the defendant’s possession;
3. That the product was used or misused in a way that was reasonably foreseeable to the defendant;
4. That the plaintiff was harmed; and
5. That the product’s defect was a substantial factor in causing plaintiff’s harm.


A manufacturing defect is the typical case where a product breaks because of bad material. Usually experts are involved to examine the broken material and the fight is over whether the material broke because it was bad or because it was misused (or a combination of both).

D. “Failure to Warn” Product Liability:

Even though the product is flawlessly designed and manufactured, it may be found defective within the general strict liability rule and its manufacturer or supplier held strictly liable because of a failure to provide an adequate warning.

A manufacturer or a supplier of a product is required to give warnings of any dangerous propensities in the product, or in its use, of which were known to the scientific community at the time it manufactured or distributed the product.

A “product” includes its packaging and all warnings and instructions that accompany it. Instructions that pertain to the use or even to the assembly of the product can be the basis for strict product liability.

In a claim for strict liability based on “failure to warn,” the injured plaintiff must prove each of the following facts:


1. That the defendant manufactured/distributed/sold the product;
2. That the product had potential risks or side effects that were known or knowable by the use of scientific knowledge available at the time of manufacture/distribution/sale;
3. That the potential risks or side effects presented a substantial danger to users of the product;
4. That ordinary consumers would not have recognized the potential risks or side effects;
5. That the defendant failed to adequately warn or instruct of the potential risks or side effects;
6. That the product was used or misused in a way that was reasonably foreseeable to the defendant;
7. That the plaintiff was harmed; and
8. That lack of sufficient instructions or warnings was a substantial factor in causing plaintiff’s harm.


In the case of prescription drugs and implants, the physician stands in the shoes of the ‘ordinary user’ because it is through the physician that a patient learns of the properties and proper use of the drug or implant. Thus, the duty to warn in these cases runs to the physician, not the patient, and must include the potential risks, side effects, or allergic reactions that may follow the foreseeable use of the drug product. A drug manufacturer has a continuing duty to warn physicians as long as the product was in use.

Almost every product liability case can include a “failure to warn” claim – unless it is a bystander rather than the purchaser or user of the product who is injured.

In a design defect case based on a risk-benefit analysis, the cost and side effects of suggested alternative designs may outweigh the benefit of changing the design to eliminate the hazard in the case being tried. The advantage of a “failure to warn” case is that there is no fight over whether an alternative design is better than the existing design of the product. In a “failure to warn” case, the issue is simply whether an effective warning could have been given to reduce the likelihood of injury from the product.

Usually warnings make sense, but consider the following: Effective use of warnings is a science. We live in a “plug and play” world. Too many warnings lead to confusion.


3. SUGGESTED QUESTIONS IN A PRODUCT LIABILITY CASE:


The following are some suggested questions to ask persons involved in a product liability case. They are designed to reach controversial issues.

Under what theory or theories is the case being tried? Is it the risk-benefit version of design defect? The consumer expectation version of design defect? Manufacturing defect? Failure to warn? Or a combination of these?

What, in twenty words or less, is the defect that caused the injury?

Are there any suggested alternative designs? Do the alternative designs have any new harmful side effects? Does any other manufacturer use this alternative design? If costs are a factor in rejecting the alternative design, what are the profits on the product?

Are there any industry or government standards that apply to this product? Does that standard determine the issue of whether or not the product was defective? Why or why not?

Did the plaintiff misuse the product? Did the defendant know that people were using the product the way the plaintiff used it? Did the defendant investigate how the product was being used? Why was the plaintiff misusing the product?

Had the product been modified since it was originally manufactured? Did the manufacturer know that its product was being modified? Why were people having to modify the product to make it more useful?

Was the product properly assembled? Who is responsible for assembly of the product?

Have other people been hurt by this product? What is their story? How many of this product are in circulation or in use? Is a recall needed or planned?

If the case is a failure to warn case, cannot the hazard be eliminated and then avoid the need for warnings?



4. COMMON ISSUES IN PRODUCT LIABILITY CASES:
   
   There are certain issues that keep coming up in product liability cases and they are likely to keep coming up in the future. Some of these common issues will be discussed in the following subsections.
1. What Is the Effect of the Injured Person Being Negligent?
   More than one person or entity can be negligent or at fault for an injury. Just because the plaintiff or some other person was negligent in the use of the product, does not mean that the manufacturer is not liable for distributing a defective product. The jury is asked to allocate between all potentially responsible persons or entities, 100% of the fault in proportion to each person or entities’ percentage share of responsibility. These percentages of fault then reduce the damages a plaintiff may recover from each defendant. This is called “comparative negligence.”
2. Was the Product Used Without Subsequent Modification?
   There is no liability for the defendant if the “subsequent modification” was not foreseeable. If the subsequent modification is foreseeable, then the defendant can be liable if the other required elements are present and the modification may be treated as “comparative negligence” that only reduces the amount of recoverable damages.
   
   Subsequent modification can sometimes be used to infer a product defect since the need for modification suggests there was a need to improve the functioning of the product. How and why was this modification done? Did the manufacturer consider such a modification during the design development and, if so, with what results?
3. Were There Adequate Warnings and Instructions?
   Warnings and instructions are part of the product. Warnings and instructions need to be properly designed to avoid injury. This is the subject of expert testimony. There are many industry standards on warnings. There are many different types of warnings. A long laundry list of warnings in a package insert is usually not an effective means of warning.
   
   There is a universally recognized relationship between “warning,” “guarding” and “eliminating” a defect or hazard. Warning of a defect is never adequate when guarding the defect is available. Guarding a defect is never adequate where eliminating the defect is available.
   
   If there is a defect, first you must try to “eliminate” the defect. If the defect cannot be eliminated, second you must try to “guard” against it. Only if the defect cannot be eliminated or guarded, do you go to the third level and try to “warn” about the defect as the last resort.
4. Was There Any “Misuse” of the Product?
   See “comparative negligence” and “subsequent modification” above.
5. Did the Manufacturer Rely on Another Company to Complete the Final Assembly?
   If a car manufacturer has brakes for the cars assembled in another country where two parts are switched in the assembly process, the car manufacturer is still responsible for the defective car since its duty to provide a product free of defects is a “non-delegable” duty.
   
   The manufacturer can sue the foreign company for its share of the damages but the manufacturer is still liable to persons injured because the car’s brakes were defectively assembled.
   
   Many large retail stores are selling products made in other countries by companies that have no other connection to the United States. If those products are made incorrectly, e.g., with bad metal or bad assembly, the retail store as the “seller” is responsible for product defects that were created by these foreign companies. The retail store is in a better position to both police the work of the foreign company and to sue them if they do shoddy work, than are the many injured persons acting separately.
   
   It is easier for the large retail store to go back against the foreign manufacturer than to require each injured person to find and sue the foreign company.
6. Are There “Other Similar Incidents” of Product Failure?
   Other similar incidents of product failure tend to confirm the existence of a product defect and they put the manufacturer on notice as to the existence of the defect and the need for modification.
   
   Information regarding “other similar incidents” may be in the possession of the defendants. Many government agencies keep records of injury reports for various products. Private sources of information include newspaper archives and Goggle search of Groups.
   
   Contacting individual involved in the prior similar incidents usually leads to powerful information since people tend to report injuries because they do not want the problem to happen to anyone else. They tend to be vocal if someone else is hurt after they reported the problem to the manufacturer.
7. Are There Any Industry or Government Standards That Might Apply to the Product?
   Industry standards set the bare minimum of acceptable standards for product design. Violation of these standards is strong evidence of product defect. Industry standards maybe silent on a particular design feature, so that compliance does not mean much. Product safety frequently requires something more than compliance with industry standards, since those standards can be for a different purpose or lag behind technological developments.
   
   Violation of government standards can be conclusive evidence of product defect. Government incident reports are frequently inadmissible in lawsuits because they are to be used for a different purpose than litigation. Whether a government standard is admissible often turns on the purpose of the standard, whether its purpose was to protect against the type of harm existing in the lawsuit.
8. Have Other Companies Made the Product Without the Defect?
   That other companies have made the product without the defect is strong evidence that the defendant’s product is defective. If other companies have made the product without the dangerous feature, why doesn’t the defendant?
9. Why or How Did That Defect Come to Exist?
   Products evolve over time. Changes made to a product for one reason frequently have unintended side effects in another area. For example, reducing the rolling weight of wheel to increase gas mileage, may tend to increase the failure rate of lightened tires. Similarly, changing the design of a bunk bed so that it can be shipped disassembled and in a flat box for reduced shipping costs, may lead to a side board design where a small child can become entrapped.
   
   “Why” a defect came to exist usually has nothing to do with product safety but frequently tells a back story of an unrelated problem that usually could have been solved some other way without compromising safety.
10. How Many of the Defective Products Are in Use or in General Circulation, and What Can Be Done to Protect Other Users of the Product?
    Is there a public safety issue beyond this one case? Should a warning or recall be sent out to other users of the product to reduce future incidents of injury?
    
    Recall notices are effective means for companies to limit their future liability for defective products and are becoming more widely used to the point where they sometimes even generate other incidental business.
11. Was the Defendant Aware That the Alleged Defect Existed?
    A manufacture need not have knowledge of the defect in order to be liable for strict product liability. If a manufacturer had knowledge of the defect then questions are raised as to whether there was a review of the defect and why it continued to exist. Was there deliberate indifference or a calculation of risk?


5. RESOURCES FOR REPORTING ON A PRODUCT LIABILITY LAWSUIT:
The Los Angeles Superior Court web site http://www.lasuperiorcourt.org has a linked page called “Case Summaries” where you can type in the case number and pull up an on-line docket of case information, documents filed and proceedings held.

The California Courts of Appeal and the California Supreme Court have separate pages at the courts website http://www.courtinfo.ca.gov/courts/ where you can also find current case information through an on-line docket system. These courts also have an email notification system where you can submit your email address and then receive notification of a filing or a date being set or an opinion being issued, as a way of keeping abreast of certain important cases.

The federal courts, including the Supreme Court, the Appellate Courts, the District Courts, and the Bankruptcy Courts, all use the Pacer system http://pacer.psc.uscourts.gov/psco/cgi-bin/links.pl where case information and documents can be accessed for a mere 8 cents a page. Pre-registration is needed but the system is very powerful since you can search by party name and find all lawsuits associated with that party.

There are on-line data bases for reports of injury that are too numerous to list but that are organized by industry. There is also on-line access to most industry and government standards.

There are also many free and proprietary web-sites dedicated to law that publish statutes, case opinions and articles on legal topics.

About the author:

John C. Torjesen is President Elect for the Consumer Attorneys Association of Los Angeles. He has his own law firm in West Los Angeles, specializing in product liability and consumer fraud cases. He is a frequent lecturer to other attorneys at Continuing Education Seminars. He tries several difficult cases each year and is a four time nominee for Trial Lawyer of the Year. His contact information is: John C. Torjesen

JOHN C. TORJESEN & ASSOCIATES, PC
11601 Wilshire Blvd., Suite 2000
Los Angeles, California 90025
(310) 473-3828 - tel.
(310) 473-6559 - fax.
Torjesen@LAinjurylaw.com
http://www.LAinjurylaw.com