PRODUCTS LIABILITY: WHAT DO WE MEAN BY UNSAFE PRODUCTS AS A MATTER OF LAW?
CARS, LAWNMOWERS, FORKLIFTS, PRINTING PRESSES, PRESCRIPTION DRUGS, PACEMAKERS, SCAFFOLDING, ELECTRIC SAWS, SWIMMING POOLS, TOBACCO, MEDICAL DEVICES --- the list of potentially unsafe products that we or our friends or our spouses encounter every day is endless. If you are hurt or a family member is killed as a result of an unsafe product, you may be entitled to recover for your losses. It will all depend upon whether a very dedicated, specialized lawyer is able to prove that the manufacturer of that product knew or should have known of the dangers or that there was a safer alternative product, that the product was unsafe when it left the hands of the manufacturer, and that the unsafe product was the direct cause of the injuries suffered by you or your loved one. If you believe that you have a potential products liability claim, it is important that you consult with a lawyer who specializes in products liability claims before valuable and irreplaceable evidence is lost. The lawyers at Fenner & Hayden specialize in representing individuals who have been injured as a result of defective or incorrectly designed products.

Every time we purchase a product in a store, every time we use a piece of equipment at work, we are at the mercy of a manufacturer. A manufacturer chooses to make its products safe or not. Often, the manufacturer's primary consideration is cost. To some extent, this consideration translates into savings for the purchaser - whether that purchaser is you, your spouse or your employer. In principle, any such savings will ultimately be passed on to you - whether it means the lower cost of producing the item leads to a lower price for the item in the store which means that you can buy the item and still have money left over for lunch or whether it means a lower cost for the item leads to a lower price of the item to your employer which means that he can give you a pay raise or a bonus.

The problem is when manufacturers cut production costs or research and development costs in such a way as to effect the safety of the item. All too often, after a person is seriously injured by an unsafe product, and lawyers begin delving deeper and deeper into the corporate books of the manufacturer, what we find is that a conscious decision was made on the part of the manufacturer to produce the item despite the availability of safer (but more costly) alternative designs or despite the fact that their own testing of the product showed that was potentially dangerous - an accident waiting to happen, as it were.

Products may be defective for many reasons:

First, the product may have not been designed properly in the first place;

Second, the product many have not been manufactured correctly; and

Third, the manufacturer or seller may have failed to warn the user of known potential dangers with the product.

Under Pennsylvania law, both the manufacturer and the seller of a product are responsible if someone is injured as a result of the use of a product that is defective and unreasonably dangerous. The manufacturer and the seller of a product are also responsible if they place into the stream of commerce a product that is rendered defective by virtue of its not having a proper warning.

If you are injured by a product -- whether in the street, at work, or in your home, the first step is to secure the actual product that caused the injury if at all possible. That should be possible in most cases, unless the size of the object makes it impossible. If you are injured on the premises of your employer, you must ask your employer to keep any broken parts. As soon as possible, it is advisable for the product to be inspected. If the product is small, it can be sent to an engineer for analysis. If the product is large, the engineer will have to conduct a site visit to the location of the product. Either way, no products liability case can proceed without an engineer's evaluation of what caused the accident and what could have been done to prevent it.

It is not realistic to catalogue all of the instances of potential product liability claims. Instead, we will give you several examples of cases we have handled, that will allow you to see the scope of the claims and how different they are from one another:

Unsafe Hunting Vest: Every year some deer hunters are shot by fellow hunters in what are termed "mistaken for deer" accidents. In such accidents, the fellow hunter thinks he sees a deer and shoots at it, only to find when he runs up to check out his "kill" that he has shot another human being. The remedy for such accidents is a neon orange hunting vest that every hunter is supposed to wear. But what if the hunter is wearing a "hunter orange" vest as it is called, and is still shot? Well, in our case, we were able to find evidence that the vest in question was actually not neon orange. It was orange, all right. But neon orange is a very specific product. It costs a lot to produce neon orange vests. The company in question never tested the vest it sold, which was being manufactured in a foreign country for sale in the United States, to see whether it complied with American standards for neon orange. And the difference was critical for this one young man. He was shot just at dusk. Dawn and dusk are the two times of day that it matters whether your hunting vest is hunter orange or just plain orange. At such times, a hunter orange vest will glow in the dark, while a plain orange vest will recede into the background. Dawn and dusk are also the times that deer are most likely to come out of their hiding, which makes the perfect setup for a "mistaken for deer" accident. Based upon the logs of the emergency personnel, it was possible to establish that our client was shot at dusk - precisely when a properly manufactured vest would have protected him.

Unsafe Pharmaceutical Products: We represent 50 people who became addicted to a headache medication called Stadol Nasal Spray that was prescribed for them by their doctors precisely because the drug manufacturer insisted in it's advertisements that the drug was not addictive. Upon review of more and more documents - primarily those obtained from the federal government through the Freedom of Information Act, it became clear that the drug manufacturer knew or should have known that this product was addictive, and should have warned the doctors of that potential.

Unsafe Delivery Truck: We represented a man who made deliveries for a well-known beverage company. The company used trucks, all of which had been made by probably the largest soft drink delivery truck company in the United States. I'm sure you have noticed soft drink deliverymen making their deliveries. When the truck is fully loaded, they balance on the balls of their feet and jump down with a case of soft drinks, right? Well, our client had done this many times, and had sometimes fallen, but had not been injured. He said that he had seen co-workers fall also, but they were told by their boss that they were careless, and they accepted it. On this one occasion that our client fell, however, he was badly injured. As a result of an uncommon infection that was already brewing but undetected in his bones, the fall caused a hip injury so significant as to require a hip replacement. Needless to say, we filed suit on his behalf. In the course of the litigation, we found out that this company had patented an "E-Z Off Step" that deliverymen could attach to the sides of their trucks and that would give them a stable platform to stand on when they unloaded merchandise from fully loaded trucks. They had not, however, offered the "E-Z Off Step" to the company for whom our client worked.

Unsafe Cement Mixer: We represented a construction worker whose duties included cleaning a heavy duty cement and mortar mixer at the beginning of each workday. In order to clean the mixer properly, he would have to start the mixer and put it in gear so that the mixing paddles would knock out the hardened cement that he had removed from the interior. One morning, while leaning into the interior of the mixer to clean it, the machine jumped into gear on its own, causing the paddles to crush his arm. The motor was on because it had to be warmed up in order to operate. Through inspection of the machine, we were able to determine that vibration had caused the lever handle to slip past the catch that held it in place. Once the lever handle slipped, it dropped the motor lower which caused the belts turning the paddles to become tight and then turn. We were able to achieve a significant recovery by demonstrating that the machine "failed unsafe" instead of "failing safe." This is a design flaw. We showed that there was an easily available alternative design to the product that would have eliminated risk of the harm suffered by our client in that the motor should have been lifted to place it in gear - not lowered. Had the alternative design been used, vibration would have knocked the handle of the catch such that the machine would have gone out of gear - but not a situation leading to injury. We analogized the design flaw to people's more common experience --- towing. When you want to tow something with your car, you need to connect the trailer with a nut and bolt. You always put the bolt in from the top. That way, if the nut becomes unscrewed and drops off, the bolt still stays put, and the car and trailer do not fly to opposite sides of the road. It "fails safe" - not "unsafe." Through this analogy, we were able to show that the designers of the mixer didn't follow a general intuitive mechanical principle known to most everyone.

STEPS TO TAKE IF YOU BELIEVE THAT YOU HAVE BEEN INJURED AS A RESULT OF AN UNSAFE PRODUCT
1. Get the names and addresses of any witnesses to your accident

If you are injured in a public place, you may not know the identities of those who witnessed your accident. Even if you are injured on the job, it may turn out that you only know the best witness in the case as "Joe" or "the white guy with glasses in the area next to mine who smiles a lot." If you have a products liability case, the witnesses to the accident will be critical to the case. Often after a significant accident, you are not in a position immediately afterwards to get the names of the witnesses. However, the sooner you get them, the better.

2. Secure the actual product

Without the actual product that caused your injury, it will be almost impossible to prove many products liability cases. For example, if you are claiming that a product was improperly manufactured, you would need to have the actual product on hand to be examined. Even if you are claiming that a product was improperly designed, you must prove that you were exposed to the particular product, which is more difficult if you don't have that product.

Also, even in design defect and warning cases, many similar products are manufactured by a number of different companies. In almost all cases, you need to prove who manufactured the particular product that caused your injury in order to recover, and this may prove very difficult if you do not have the actual object to examine for signs of manufacturer identification.

3. Consult with an attorney specializing in product liability cases

Products liability cases are different kinds of case than any others, and many lawyers specialize in doing these kinds of cases. They require a lawyer with an ability to comprehend complex engineering issues. They also require a lawyer who is willing to "go the extra mile" for your case, because products liability cases rarely settle until a court date is imminent, and often go to trial and even to appeal after trial. They also require a lawyer who is willing to commit significant sums of money in preparation of your case because the experts who need to be consulted in order to properly understand and prosecute a products liability case are very expensive, and cases generally require consultation with multiple experts.

4. Take photographs

Ask a family member to take photographs of your injuries and the accident site. Take photographs of all of your injuries a few days after the accident, which is when the bruising may be more visible. The photos of the site may be extremely valuable for purposes of reconstructing the accident some time later on when the area may have changed.

If you believe that you have been seriously injured due to the an unsafe product or drug, please call us at (610) 664-6081 or e-mail a completed General Case Inquiry form to us. Once we have had a chance to review your submission, we will contact you and will provide you with a confidential consultation at no charge.

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