Defective Products

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Nature of Claim for a Defective Product

Each year, there are millions people who are injured, in addition to thousands who lose their lives, as a result of unreasonably dangerous consumer products which are put into the marketplace by manufacturers whose primary concern is making a profit from the sale of such products. There are manufacturers who limit the time and resources directed toward the design and development of safety considerations because they claim that it would reduce the profitability of the product. If a manufacturer of a consumer product places an unreasonably dangerous product into the marketplace that injures someone, the manufacturer must be held accountable to the extent that his actions were not reasonable.

The Supreme Court of Texas, along with the courts of every other state, and the Supreme Court of the United States, have established laws by which the manufacturer of an unreasonably dangerous product which injures a person must be held accountable.

A person may recover for personal injuries caused by a defective product on a theory of "strict liability" or "strict products liability" if the person establishes all of the following elements:

  1. That the product is defective.
  2. That the product reached the consumer without substantial change in its condition from the time it was originally sold.
  3. That the defect rendered the product unreasonably dangerous.
  4. That the defect caused injury to the user.

Product defect cases can usually be divided into three categories: manufacturing defects, design defects, and marketing defects.

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Manufacturing Defects

In a manufacturing defect, the manufacturer failed to make the product in accordance with the plans and specifications set forth for the product. For example, if the step on a ladder is inadvertently made of a weaker material than the material specified by the manufacturer, and a person weighing 150 pounds falls from the ladder as a result of the step giving way under the weight of the person.

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Design Defects

A products liability claim based upon a design defect must show that the design of the product, in some respect, rendered the product unreasonably dangerous. For example, a stove knob made according to the manufacturer's plans was defectively designed when an accidental touch by the clothing of a person standing near the stove would turn the knob and ignite the burner. In this case, the manufacturer was held strictly liable for the injuries suffered by a child who brushed against the knob while reaching for some fudge on the stove top.

In all products liability cases accruing on or after September 1, 1993, a claimant may establish an actionable "design defect" only if he or she proves, by a preponderance of the evidence, both of the following:

  1. That there was a "safer alternative design."
  2. The defect (i.e., the design actually used) was a "producing cause of the personal injury, property damage, or death for which the claimant seeks recovery."

A safer alternative design means a product designed other than the one actually used that, in reasonable probability, (1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and (2) was economically and technologically feasible at the time that the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

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Marketing Defects

A product may have a "marketing defect" sufficient to support a strict products liability cause of action if the manufacturer or seller fails to warn of a dangerous characteristic of the product. The lack of an adequate warning may, in itself, render a product defect even though the product is not otherwise flawed. A claimant establishes a marketing defect by showing all of the following:

  1. A risk of harm that is inherent in the product or may arise from the producer's intended or reasonable anticipated use.
  2. Actual knowledge or foreseeability of the risk of harm by the product supplier at the time the product is marketed.
  3. The absence of a warning or instruction that renders the product unreasonably dangerous to the product's ultimate user or consumer.
  4. A causal link between the failure to warn or instruct and the product user's injury.

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Adequacy of Warning

When a product supplier has a duty to warn, the supplier may escape liability only if the supplier gives a warning that is "adequate." The duty to warn requires the manufacturer to warn with a degree of intensity that would cause a reasonable person to exercise caution commensurate with the potential danger. A warning is considered adequate if it is in a form that reasonably could be expected to catch the attention of a reasonably prudent person in the circumstances of its use. The content of the warning must be comprehensible to the average user, it must convey, to a reasonably prudent person, a fair indication of the nature and extent of the danger involved. Mere directions for use do not necessarily satisfy the duty to warn.

In marketing defect cases, there is a presumption that if an adequate warning is given, the product user will read and heed the warning. The presumption may be rebutted by evidence that the user was blind, illiterate, intoxicated, irresponsible, or lax in judgment, or by some other showing that the improper use would have occurred in any case.

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A person injured by a defective product is entitled to compensation for damages caused by the defect. Such damages may include past and future medical expenses, loss of past and future wages, loss of past and future physical capacity, and past and future pain, suffering, and mental anguish.

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Exemplary Damages

The 1995 Texas legislature greatly limited all claims for exemplary damages, including claims for exemplary damages arising out of products liability cases. For causes of action that accrued after September 1, 1995, exemplary damages may only be recovered if the defendant's conduct was fraudulent or malicious, as defined in the statutory law enacted by the legislature in 1995. That legislature eliminated a claim for exemplary damages based upon gross negligence, as previously established by case law by the Texas Supreme Court.

Further, the 1995 legislature adopted limits on exemplary damages which provide that exemplary damages may not exceed the greater of (1) two times the amount of economic damages plus the amount of non-economic damages, not to exceed $750,000.00, or (2) $200,000.00.

In regard to exemplary damages, the 1995 Texas legislature overreacted to a non-existent problem. Prior to the 1995 changes in the law with respect to exemplary damages, awards of exemplary damages by juries were extremely rare. Prior to 1995, only about two cases out of a thousand across the country resulted in a jury verdict that included exemplary damages. Because of the notoriety of a couple of cases, including the MacDonald's case and the Gore vs. BMW case, the public was misled into believing that many negligence and products liability cases result in exemplary damage awards which are excessive. The exemplary damages portion of the MacDonald's case and the BMW case were not excessive, but the media made every attempt to make the exemplary damage award in both cases appear to be excessive and unfair, even bordering on the ridiculous.

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The Effect of Products Liability Litigation on our Society and Economy

Products liability claims make manufacturers accountable for selling unreasonably dangerous products that injure, maim and kill. The manufacturer must consider the utility and safety of a product, along with the profitability of the product in formulating the marketing strategy of the products which it sells. Products liability litigation results in safer products in the marketplace. The automobile industry has demonstrated that a safer, more useful product can be made without increasing the price or adversely affecting the profitability, if the manufacturer accepts the challenge and puts its mind and resources to accomplishing those goals. We must not allow manufacturers of products to have the mindset that it is cheaper to hire lobbyists to change the laws concerning civil remedies for torts than to make safer, more useful products.

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Do you have a claim based upon a defective product?

If you have been injured or damaged as a result of a defective product, you may have a claim against the manufacturer of the product. If you would like more information concerning your possible claim, then, please, fill out the following questionnaire. You may provide as much or as little of the information requested. All information which you provide to us will be kept strictly confidential. If you know of someone with a claim based upon a defective product, please, E-mail them and recommend that they visit this Website, or print out this questionnaire, and ask the person to mail it to Jim L. Culpepper & Associates.

Thank you for providing this information.

First Name:
Last Name:
Number, Street & Apt.:
E-Mail (required):
Day Phone:
Evening Phone:
Best time to reach you by telephone?
Date of Injury:
Brand name of product:
Number & Street:
Model number:
Serial number:
Date of purchase:
Name of retailer where purchase was made:
Address of retailer:
Brief description of how the product caused the injury:
Brief description of injuries received:
Has retailer or manufacturer been notified of defect or injury? Yes No
Name of persons notified:
Date Notified:
Are you interested in learning more about claims based upon defective products? Yes No

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