Products Liability

In 2012 and 2013, 94,960 products liability cases were filed in U.S. federal courts which is approximately one out of every six cases filed. And these statistics do not include actions filed in state courts. According to one insurance industry group, in 2012 the average jury award in products liability suits was $3.4 million, and the median award was $1.5 million. Product liability awards far surpassed those granted in all other types of cases except medical malpractice. However, in fiscal year 2015 the average penalty went up by more than 50 percent, from $7.5 million to $20.9 million. Moreover, these cases are expensive to defend. A Pennsylvania attorney estimates that the cost of investigating and litigating a products liability case easily exceeds $100,000 given the numerous expert witnesses involved and the evaluation of thousands or even hundreds of thousands of documents.

There are a number of parties that may be exposed to a product liability claim, in addition to the product manufacturer, importer, or distributor. They include a manufacturer of component parts, a party that assembles or installs the product, the wholesaler; and the retail store that sold the product to the consumer. If you are anywhere in this network, you could be a statistic in a products liability case.

The attorneys at Ericksen Arbuthnot are well versed in the claims that could be made against you: negligence, strict liability, breach of warranty, and various consumer protection claims. Responsibility for a product defect that causes injury lies with everyone who is in the distribution chain. Ericksen’s attorneys work with everyone in the distribution chain to ensure the practices in place will reduce or eliminate any liability for product defects that may occur.

The law requires that a product meet the ordinary expectations of the consumer. Should a product have an unexpected defect or danger, it no longer meets the ordinary expectations of the consumer. A product may be found to be defective because of its design, a manufacturing mishap or lack of adequate warnings or instructions.

In California, when evaluating if a product has a defective design, one of two tests is traditionally used to determine liability: the risk/benefit test, and the consumer expectations test. The risk/benefit test determines whether a manufacturer is liable for injury to a consumer because the risk of danger created by the product’s design outweighs the benefits of the design. The consumer expectations test does away with expert testimony and simply asks whether a reasonable consumer would believe the product failed to perform as safely as expected.

Regardless of which test is used, our attorneys work closely with our clients to ensure the benefits of the challenged design outweigh the risks of danger inherent in the design. With the consumer expectations test, our attorneys will review whether the injuries were a result of unforeseeable misuse or abuse, including product alteration, or if the plaintiff was a sophisticated user who knew or should have known of the product’s risk, harm or danger.

Manufacturers and suppliers may be held liable for a product that could be used safely, but that lacks warnings regarding possible dangers, when the lack of adequate warning creates unreasonable risks to the consumer. Our attorneys work closely with clients to review necessary warnings and ensure the warning is clear, understandable, and unambiguous, so that the manufacturer cannot be held liable for a breach of the duty to warn.

Our attorneys are members of and officers in associations of importance to our clients. They are active members of the Defense Research Institute (DRI) and sit on the Steering Committee for the Products Liability Committee and Chair of its Fire Science & Litigation Specialized Litigation Group. They routinely lecture on issues of importance to their clients.

Co-Chair: