Defective Products

As a consumer, you have the right to expect that the products you buy and use have been manufactured to the highest standards of safety. Unfortunately, there are products that fail to meet these standards and may cause serious personal injury to you or to a loved-one.

Corporations and manufacturers in the state of Georgia have a responsibility to their consumers to make sure that all products they produce or sell are safe to use. In many cases, a defective product can cause severe injuries and, in some instances, death. “Product” is a term that includes anything used by or that comes in contact with a person. It includes the following:

• Over-the-counter and Prescription Drugs;
• Food;
• Household appliances;
• Tools;
• Toys;
• Automobiles;
• Clothing;
• Any Type of Consumer Product;
• Orthopedic Implants;
• Recreational equipment
• Bicycles; and,
• Heavy Machinery.

In Georgia, there are several circumstances under which a manufacturer may be liable for personal injury or wrongful death caused by defective products. These include negligence in design, testing, or labeling; strict liability, in which the manufacturer may be held liable without proof of negligence; and implied warranty, which states the seller must know that the product is acceptable for use by the buyer.

What is considered a defective product?

A defective product is one that poses risk to consumers when used as intended. If you were injured by a defective product, you may be able to seek financial compensation related to your injuries via a product liability lawsuit.

What factors contribute to defective products?

As one can imagine, there are numerous reasons why a product may be defective or flawed. Common causes for defective products include:

• Flaws in the design of a product;
• Faulty manufacturing or assembly of the product;
• Tampering or inadvertent contamination of a product that results in risks to consumers;
• Marketing flaws such as inadequate safety warnings or inaccurate instructions.

Who can be held liable for a defective product?

The general term “defective products” can cover a very wide spectrum of circumstances and equipment ranging from medical devices to consumer products such as lawn equipment or automobiles. Given this broad range of products, determining who is responsible for the injury causing “defect” is crucial to any personal injury claim. Therefore, depending on the individual circumstances of your case, one or more parties may be held liable for a defective product. Responsible parties may include:

• Product designers/engineers;
• Product manufacturers;
• Product distributors;
• Product marketers; and,
• Product retailers.

What must be proven in a product liability case?

Thousands of poorly designed, defective products make it to the marketplace and cause personal injury and sometimes wrongful death. Because product defect cases can be more complex than they first appear, it is important that a potential product liability claim against the manufacture or sale of a dangerous product be pursued immediately.

Proving the presence of a product defect requires investigative findings from a variety of expert resources. Jackel & Phillips has the required expertise to find the correct product liability professionals and researchers whose knowledge, education and skills will effectively expedite what can often be a very lengthy and time-consuming discovery process.

In proving product defect cases, it is necessary to show one or more of the following:

• The product defect existed in the design of the product, occurring before the product was manufactured.
• The product defect manifested during manufacturing, occurring while the product was being constructed or produced.
• The product defect was determined after the product appeared in the marketplace and was due to improper instructions and failure to warn consumers about the dangers of the product.

In a product liability claim, you generally must demonstrate negligence on behalf of at least one of the aforementioned parties. In short, you need to be able to prove:

• The product was hazardous when used as intended or directed;
• You suffered harm despite using the product as intended; and,
• The alleged product defect was the cause of your injury.

What damages can be sought in a defective product lawsuit?

In the State of Georgia, “Compensatory” damages, also called actual damages, are paid to compensate the claimant for loss, injury, or harm suffered as a result of an injury causing product or negligence. General damages compensate the claimant for the non-monetary aspects of the specific harm suffered. This is usually termed “pain and suffering,” examples of which include the following:

• Interference with normal living;
• Interference with enjoyment of life;
• Loss in capacity to labor and earn money;
• Impairment of bodily health and vigor;
• Confinement – both current and fear of confinement in the future;
• Fear of extent of injury;
• Shock of impact;
• Actual physical pain and suffering – past and future;
• Mental anguish, anxiety and depression – past and future; and,
• Limits on activities for rest of life.

Naturally, “pain and suffering” damages are not easily quantifiable, and depend on the individual circumstances of the claimant. Other elements of compensation may include:

• Loss of companionship;
• Disfigurement;
• Medical expenses;
• Lost wages; and,
• Disability.

What are “consumer” product defects?

Defects in consumer products are as varied as the array of products available to consumers for purchase. The term “consumer products” can be used to describe household products, items used in everyday activities: all-terrain vehicles, golf carts, watercraft and jet skis, lawnmowers, household tools, common safety equipment like helmets and eye protection, or any other product that consumers find themselves utilizing. The following are but a few examples of defective consumer products cases:

• CLOTHING/APPAREL CLAIMS: Lawsuits related to apparel defects usually consist of issues regarding fire resistance, irritating fabric, improper construction, hidden foreign objects, or poor traction in footwear. The term apparel covers all kinds of articles from shirts and pants to costumes and work boots
• HELMET CLAIMS: Although the most common helmet defect claim involves a motorcycle helmet, there have been an increasing number of accidents involving bicycle and other sports helmets including football, lacrosse, baseball, snowboarding and others. Whatever the sport, the user can and should have a reasonable expectation that a helmet will provide head protection in the event of an impact.
• FIREARMS CLAIMS: Numerous victims of intentional or inadvertent shootings have tried to prove the guns involved were flawed and that the manufacturers or retailers were responsible for any harm that was caused. But, this notion has not gone over too well in court. One exception to this rule is in regard to “Saturday night specials,” or inexpensive handguns known to be incredibly unsafe and recognized for their prevalence in criminal circles.
• FOOD & AGRICULTURAL PRODUCTS: All mass-produced food, beverages, and agricultural products (e.g., crop care, livestock food) may be subject to product liability lawsuits if they are contaminated and cause sickness. Oftentimes, if the claimant can establish that a law was broken, such as sanitary standards or restrictions on pesticides, it can be proven that the defendant was negligent.
• ALL TERRAIN VEHICLES (ATV) CLAIMS: In rural areas or other areas with open terrain it is not uncommon to see All-Terrain Vehicles or “ATVs” in use for recreational fun, light hauling, farming or hunting. Unfortunately, while these utility vehicles can provide both entertainment and functionality, many are unreasonably dangerous and expose those using them to unnecessary injury or even death. By their very nature many ATVs have a high center of gravity, small wheels and a narrow wheel base that make them inherently unstable and prone to flipping either forward or backward on grades or rolling over, even on relatively flat terrain.
• GOLF CART AND LOW SPEED VEHICLE CLAIMS: Like ATVs, golf carts and Low-Speed Vehicles (LSVs) can be extremely dangerous to those who use them even under normal operating conditions. The manufacturers of golf carts are not regulated like the manufacturers of other motor vehicles and, as a result golf carts can greatly vary in quality of their design, construction and manufacture. They share many of the same safety concerns and problems as ATVs, and, therefore, when an accident occurs involving a golf cart or similar vehicle the potential that a defect in the golf cart design should be considered. Often through better design practices the likelihood of an accident in the first instance can be reduced, or the possibility of injury minimized should an accident happen.
• CHEMICALS & COSMETICS CLAIMS: A poorly designed or constituted cosmetic may cause chemical burns, or chemical reactions in combination with other cosmetics or beauty treatments which can cause injury. Defective hair treatments can result in hair damage or even hair loss. Defective household chemicals and cosmetics for personal hygiene may be targeted for consumer lawsuits if they injure someone. In these claims, the plaintiff must provide evidence that the manufacturer or vendor had prior knowledge or should have been aware of these products’ side effects.
• LAWN EQUIPMENT CLAIMS: Lawn equipment accidents happen needlessly and all-too-frequently, and can lead to severed appendages or limbs, broken bones, and even death. Lawn mowers can easily roll over when on an embankment, hill or during a sharp turn on flat terrain. Zero-turn-radius (ZTR) rotary riding mowers are known for easy maneuverability, however manufacturers are also well-aware of their propensity to roll over when they encounter small holes or slight grades in the terrain. Many of the injuries from lawn mower accidents can be prevented by manufacturer-installed guards, roll bars, and seatbelts. If inadequate safety systems contributed to severe injuries or a wrongful death in a lawn mower accident, a product liability case may exist.
• PET ACCESS DOOR CLAIMS: Pet access doors, or doggie doors, are hidden hazards in residential homes and on too many occasions have led directly to the tragic injury or death of a child. Many parents and caregivers do not appreciate the risk associated with use of a pet door, and how young children can drown, become lost, wander onto streets, or otherwise become seriously injured or killed after exiting a home through a pet door.
• BABY FURNITURE CLAIMS: Poor design or construction of baby furniture may result in gaps or spaces which could cause a baby’s head or body to become entrapped, creating a risk of choking or suffocation.
• RHINO ATV CLAIMS: All Terrain Vehicles can offer hours of outdoor fun, but a safe design is imperative to passenger safety. Expert analysis and accident statistics have shown that certain ATVs to be defectively designed, resulting in serious accidents. Features such as a high center of gravity, small wheels and a narrow wheelbase can cause the vehicle to rollover easily, resulting in serious injury and death.
• CHILDREN’S TOYS CLAIMS – Children’s toys may be poorly designed such as to create a high risk of injury in the event that a child falls on the toy. They might have an inappropriate covering or coating, such as being painted with a lead-based paint. A very common defect is that a toy designed for or marketed to young children will have parts that are too small or which detach too easily, creating a choking hazard.
• WATERCRAFT AND JET SKI CLAIMS: Abundant waterways and warm weather make for hours of boating fun. However, many boat owners and operators unfortunately do not have the proper training and/or experience to properly operate their vessels, or simply do not make safety a priority.
• INFANT CAR SEATS CLAIMS : A poorly designed or constructed car seat may fail to properly restrain a child during an accident, or may cause injury when the child strikes an unpadded portion of the seat.

Generally speaking, by virtue of their smaller size and inexperience, children are at particular risk from defective products.

What are car manufacturing defects?

As most would agree, driving an automobile generally produces a feeling of control because the driver is in charge. When a component of your motor vehicle fails to operate properly or malfunctions without any prior indication of defect, that sense of control simply vanishes. What is worse, serious injury may occur to you and any others involved in an automobile wreck caused by the defect.

At Jackel & Phillips our clients have come to us with neck, back and head injuries caused — not by the recklessness or negligence of other drivers — but by their own vehicles. In our years of experience, we have successfully seen and handled cases involving numerous types of auto components failures including the following:

• Tire blowouts;
• Air bags;
• Child safety seats;
• Seat belt failures;
• Rollovers;
• Brake recalls.

Successfully pursuing compensation in auto recall or auto defect cases requires significant resources and aggressive protection of the injury victim’s interests. Car companies are notorious for mounting extremely strong defenses against these types of product liability cases. They want to limit their financial exposure, because one successful case could lead to more. At Jackel & Phillips we will put all our knowledge and resources to work on your behalf, to get you compensation that completely covers medical bills, pain and suffering, loss of work and ongoing costs related to the injury.

What are drug/pharmaceutical manufacturer defective products?

Drug manufacturers must conform to Food and Drug Administration (FDA) regulations regarding the fabrication, promotion, and sale of a product. However, if a drug is defective, this will even override the fact that the company followed all of the FDA guidelines. It is the responsibility of the drug manufacturer to alert consumers of all potential side effects. Normally, a physician or pharmacist will handle the task of relaying this information to the user. On the other hand, if the manufacturer advertises its drug directly to the general population (e.g., Viagra), it might still have a duty to warn the public, without a mediator such as a doctor or pharmacist, about the risks associated with the medication.

Drug manufacturers are constantly looking for new drugs that will bring profits to offset lost revenue from earlier, no-longer-patented drugs that are now available in generic form. However, in order to bring new drugs to market, time is of the essence: ideally, profits from new drugs would offset losses on older drugs that are available as generics. As a result, pharmaceutical manufacturers may not always spend the time needed to make sure a drug is safe. They have even been known to write reports themselves and ask researchers to sign their names to them when applying for approval to the Food and Drug Administration (FDA). And, since the FDA is not a consumer protection agency and is often populated by people who have previously worked for pharmaceutical companies and agribusiness, there is no guarantee dangerous drugs will be kept off the market.

Regardless of how big Pfizer, Merck, GlaxoSmithKline, or other pharmaceutical companies may be, researchers and doctors are well-aware of the dangers associated with certain prescription drugs. Additionally, a paper trail may exist indicating an increased risk for heart attack, stroke, liver failure, kidney failure, gastric ulcers, or respiratory failure associated with many of these dangerous drugs. In fact, the FDA has placed a black box warning label on many of these drugs to warn of serious, dangerous side effects. These are called “black box warnings” because a black border typically surrounds them.

At Jackel & Phillips our attorneys have the requisite experience to unite with the researchers and medical experts necessary to detail the dangers posed by drugs that injure our clients. We subpoena company records, internal memos, and present evidence detailing what drug manufacturers knew and when. We will deliver the crucial medical testimony which explains the connection between the drug in question and our client’s injuries and medical complications.

What are medical device defective products?

A product liability case can arise from injuries caused by defective or dangerous medical appliances, equipment, organ transplants, prosthetic devices, surgical implants, surgical equipment, hospital supplies, diagnostic equipment, and hearing and visual aids. Any of these products can be the subject of a products liability lawsuit if these products cause injury to a patient. As discussed below, a defective medical device can take the form of many different things and products:

• A Product that Causes Injury or Death – If the device causes a personal injury or wrongful death of the patient after it was properly installed or used as instructed, it is most likely a defective device.
• A Product that Was Inadequately Tested – Not taking the proper amount of time for testing, displaying due diligence, rushing a device to market purely for monetary gain comes at the expense of patients.
• A Product that Was Not FDA Approved – It’s hard to believe, but companies put sensitive medical devices that could potentially injure or kill a patient on the market prior to the FDA approval.
• A Product that Was Manufactured with Cheap Materials – Medical devices are sold at a premium, however, to maximize profit some companies choose to use materials that can degrade quickly in the body or break, lowering the life of the device and putting patients in jeopardy.
• A Product that Was Manufactured with Toxic Materials – Producing a medical device with toxic materials may sound ludicrous, however, some plastics, adhesives, and metals are highly toxic and could potentially poison the patient or cause a serious reaction.
• A Product that Was Mislabeled – Not properly warning patients about side effects or dangers of the medical device discovered in clinical trials could cause serious injuries or death.
• A Product that Was Sold by Misleading Advertisements – Much like drugs, versatility and off label uses are key to selling more units. Giving off label uses and misleading claims could lead to serious injuries and unlabeled side effects.

Jackel & Phillips has seen, examined and handled personal injury cases for clients involving malfunctioning, failing or hazardous medical devices and medical equipment. More importantly, the attorneys of Jackel & Phillips have the right experience and legal training to help individuals obtain compensation for injuries sustained when prosthetic devices have failed.

We Can Help!

If you have been injured as a result of using a defective product, Jackel & Phillips can help you receive the compensation you deserve. Our attorneys have years of experience standing up for the rights of consumers and ensuring that manufacturers are held accountable when they violate basic standards of safety. If you or a loved one has been injured through the use of a defective product, our attorneys are here to help you through this trying time. If you think you may have a product liability case in Georgia, please call today to schedule your free, no obligation case consultation.