Articles Posted in Product Liability

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When someone is injured while using a product, that person is entitled to file a product liability case against the manufacturer of the allegedly dangerous product to seek compensation for their injuries. In most cases, the injured party will not need to prove that the manufacturer was negligent; however, an injured party will need to prove that the product was unreasonably dangerous.

CourtroomFlorida courts allow product liability plaintiffs to prove dangerousness in one of two ways:  the risk-utility test or the consumer-expectations test. A recent Florida appellate court opinion briefly mentions each test and notes how under the current state of the law, a jury may be instructed on the elements of both tests.

Florida’s Risk-Utility Test

One way in which a Florida product liability plaintiff can establish that a product was dangerous is through the risk-utility test. This test asks the jury to consider the risks posed by a product’s design and weigh those risks against the benefits of the design. Courts applying this test look at a number of factors, such as the obviousness of the danger presented by the product and the availability of other reasonable designs that may be less dangerous. Since it can be argued that most products present some risk, this test is less plaintiff-friendly in most circumstances.

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Over the past few months, Johnson & Johnson has been found liable in several product liability lawsuits, based on the continued use of its talc-based baby powder. According to one recent financial news source, the company was most recently found liable for over $67 million, which puts the total amount for all of the baby powder lawsuits brought against the company at about $195 million.

GavelThe cases proceed under a product liability theory and rely on recently discovered evidence that the continued use of talc-based products can result in certain kinds of cancer. Specifically, the research indicates that the use of baby powder in women’s genital areas can lead to ovarian cancer. There are currently about 2,500 lawsuits pending filed by women who have suffered from various sicknesses – mostly ovarian cancer – after the continued use of the product.

Johnson & Johnson denies that its product causes cancer. According to the news source, the company plans to appeal the most recent ruling, based on an alleged tainting of the jury pool. Johnson & Johnson claims that the woman’s lawyers ran several ad campaigns prior to her trial in the jurisdiction where the trial took place. The woman’s lawyers deny the company’s claim, and a court has yet to rule on the issue. For now, all of the verdicts in favor of the plaintiff will stand.

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The Federal Court of Appeals for the Third Circuit just handed down a decision affirming a verdict in favor of the plaintiff in a birth injury lawsuit stemming from the use of Topamax by pregnant women. According to one news source covering the case, the young plaintiff in the case was born with a cleft palate as well as a cleft lip after her mother took Topamax during the first trimester of pregnancy. The jury’s verdict was split; $1.5 million was designated to go to the parents to help pay for the future care of their child, and $1.5 million was designated to go to the young girl herself to help compensate her for her non-economic damages.

Purple PillsThe Facts of the Case

Back in 2007, the plaintiff’s mother was taking Topamax for her migraine headaches. In December of that year, she learned that she was pregnant with the plaintiff. She discussed the use of Topamax with her doctor, and she was advised to taper off the use but not to stop taking the medication altogether.

When the plaintiff was born, she suffered from a cleft palate and a cleft lip. To this day, she has undergone 14 surgeries to help correct the injuries with which she was born. However, she still suffers from hearing loss and speech problems. Her parents told the court that she is teased and bullied by other children as a result of her appearance and speech.

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Over the past few years, it has come out that the birth control medication, Essure, can cause a host of very serious negative side effects, including severe pain and bleeding, unplanned pregnancies, miscarriages, and still births. In response to the increasing number of women who say they have been negatively affected by Essure, as well as the research indicating the same, the Food and Drug Administration recently announced that it will not be issuing a recall. Instead, it plans to implement a “black box” warning.

banner-1165980_960_720The Black Box warning, according to the FDA, is the most serious warning that they can issue for a prescription medication. In fact, the warning requires that doctors get a patient’s written consent to take the drug after they have been made aware of all the potential side effects the drug can have. However, for the thousands of women who have already suffered from the side effects they claim came about from their use of Essure, the recent action by the FDA is too little, too late.

According to another news source, plus an advocate group comprised of women who have used Essure and experienced negative results, the warnings being given to patients will not be sufficient to illustrate the likelihood or the severity of any potential negative side effects they may experience. The group claims that the waivers will just be seen as another deluge of paperwork that patients are constantly requested to sign, and the importance of the danger will ultimately be overlooked.

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Health care products giant Johnson & Johnson was recently found liable in a product liability lawsuit based on the continued use of its “Shower to Shower” talcum powder. As a result of the lawsuit, the company will be forced to pay out nearly $72 million in damages to the family of a woman who just last year died of ovarian cancer stemming from her use of the company’s product.

gavel-1017953_960_720The woman’s family alleged that Johnson & Johnson knew about the dangers of their talc-based product but continued to sell it to customers without any warning. To help prove their case, the plaintiffs discovered internal Johnson & Johnson documents indicating that the company was aware of the adverse health consequences from using its product.

In response to the case against it, the company argued that there was no way to prove that the woman’s ovarian cancer was caused by the use of their product. However, the jury rejected that argument and awarded the family of the woman roughly $72 million. This amount was more than the $22 million the family initially requested at the inception of the lawsuit. In all, the jury determined that Johnson & Johnson was liable for $10 million in compensatory damages, as well as an additional $62 million in punitive damages, based on the company’s continued marketing and sale of the product. This was the first time Johnson & Johnson had been held liable for injuries sustained through the use of this particular product.

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Earlier this month, the Florida Supreme Court heard a case about a man who fell to his death off of a 13-foot ladder made and sold by the defendants. In the case, Coba v. Tricam Industries, the Florida Supreme Court denied the defendants’ request to set aside the jury verdict in the amount of roughly $1.5 million.

ladder-993863-mThe Case at Trial

The evidence showed that Coba fell off a ladder that was manufactured by one of the defendants and sold in the retail store of another defendant. Coba’s estate sued both the manufacturer and the retailer under the theories of strict liability and traditional negligence. The strict liability claim alleged that there was some kind of design defect in the ladder and that those who “designed, manufactured, marketed, distributed, or sold” the merchandise should be held liable.

The traditional negligence claim was explained to the jury as follows: “Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances.”

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Earlier this month, a nationally known ice cream manufacturer, Blue Bell, based out of Brenham, Texas, recalled all of its products after fears arose that some products had been contaminated with the deadly bacteria listeria. According to a report by USA Today, the “little creamery in Brenham” instituted a voluntary recall after listeria was found in some half-gallon containers of cookie dough ice cream.

ice-cream-88041-mWhile the initial discovery of contaminated products was limited to the half-gallon containers of cookie dough ice cream, the company decided to recall all of its products, including its entire line of ice cream, frozen yogurt, sherbet, and frozen snacks. A Blue Bell representative released the following official statement about listeria:

[Listeria is] an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Although healthy individuals may suffer only short-term symptoms, … listeria infection can cause miscarriages and stillbirths among pregnant women.

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