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Articles Tagged with products safety

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You may remember the hoverboard craze. About 5 years ago they took the United States by storm. With demand sky-high, multiple manufacturers ramped up production to cash in, they sold their products quickly, and no one asked questions. Shortly after their meteoric rise in popularity, hoverboards began earning headlines for the wrong reasons, and gained the reputation of a defective product. They began to overheat and catch fire. The defects and malfunctions were so common that hoverboards were banned in many places, ranging from college campuses, to theme parks, to public transportation. 

In one instance, a fire caused by a defective hoverboard resulted in an entire home being burned to the ground. Similar stories are not uncommon; unfortunately, defective products can have destructive results. Often the only recourse is filing a lawsuit against the seller and/or manufacturer of the product. In the case of the Fox family, whose home was burned to the ground, they filed a lawsuit against Amazon. As the world’s largest retailer, it is not uncommon for these types of cases to be filed against Amazon. It is equally as uncommon for Amazon to be actually held responsible for their role in the sale of defective products. 

The question at the heart of the complaints filed against Amazon is often whether Amazon is actually the ‘seller’ of the defective products. I have placed the term ‘seller’ in quotes because in different jurisdictions the term, ‘seller,’ can be defined in different ways. The responsibility for the product’s defections, and the resulting injuries rest on the ‘seller’ and/or manufacturer of the product. This raises a question of distinction that the court must decide… What constitutes a ‘seller’… and more importantly is Amazon a ‘seller’? 

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The short answer is maybe.

One of the first questions many of my clients have after they have been in a car wreck is whether they can accept the insurance company’s pay-off for their totaled car.  Most people need the pay-off money to be able to buy substitute transportation as quickly as possible.  Some people accept the insurance company’s pay-off well before they even think about hiring a lawyer, and well before they have even spoken to a lawyer about representing them in a car wreck case. This is certainly understandable and normal human conduct when your car has been totaled in a wreck that isn’t your fault. But can there be a problem with accepting the insurance company’s pay-off for your car and, in return, releasing ownership of it to that insurance company for salvage value?

Typically, in a car wreck that has resulted in some personal injuries due to the negligence of the at-fault driver for say, running a stop sign, or rear-ending the car in front, the answer for at least 30 years has been no.  In the past, no insurance carrier ever really cared about preserving the car in a plain ordinary negligence car wreck case where there is no evidence of any mechanical failure of the car or any evidence that the car itself was, somehow, defective. In the last 5 years or so, however, that has changed. Now, in an increasingly scorched-earth tactic by defense lawyers, they often file a motion to dismiss even run-of-the-mill car wreck cases for the plaintiff’s failure to preserve or keep the car that was involved in the wreck, even if that car was totaled by the insurance carrier. This motion is referred to as a “spoliation motion” and they are becoming more and more popular as a “gotcha” tactic by defense attorneys who really have no defense for their insured’s actions in actually causing the wreck in the first place.  They have to admit their insured was negligent and caused the wreck, but maybe they can get out of the whole thing by arguing that without the car to be examined by an expert, hypothetically, we can never know whether something was wrong with the brakes or the windshield wipers (yes, I have really had that argued by defense counsel in a case) or the seat belts or any of a number of made-up potential problems, even if there exists no evidence that anything about the car caused or contributed to the wreck.  At a minimum it is frustrating…at the worst, it can cost a plaintiff her entire case.

bicyclewarningsignMy friend and  fellow trial lawyer, Lester Tate, and I are representing a young man in a case against Kawasaki, the manufacturer of the motorcycle he was riding when he was severely injured because it stalled on him. Months later, he received a recall notice that said the voltage regulator on his motorcycle was defective.  The minute he received the notice he thought that sure explained what happened to him the day his world was turned upside with a catastrophic motorcycle wreck.  The case was heard yesterday before the 11th Circuit Court of Appeals, our appellate court for cases that are filed in Federal Court, here in the Northern District of Georgia.  One of the issues on appeal involves Kawasaki’s duty to warn its customers who have bought or used that particular motorcycle about a known defect with the motorcycle’s voltage regulator.  So, a manufacturer’s duty owed to its consumer is heavily on mind right now.

What exactly is a manufacturer’s duty to want its customers of a potentially defective product?  Under Georgia law , when the manufacturer of a product has actual or constructive knowledge that its product involves danger to users of the product, the manufacturer has a duty to warn users of the danger. Battersby v. Boyer, 526 S.E. 2d 159, 162 (Ga. App. 1999). O.C.G.A. § 51-1-11(b)(1) provides that “[t]he manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The term “not merchantable and reasonably suited to the use intended” as used in this statute means “defective.” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645(1983). “In a product liability case, the existence of a duty to warn depends upon the foreseeability of the use in question and the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 781 (Ga. App. 1987). A manufacturer may be subject to liability for failing to warn the user adequately of the known or foreseen danger if there is no reason to believe the user will realize the dangerous condition.” Id. at 477; see Ford Motor Co. v. Stubblefield, 319 S.E.2d 470, 477 (Ga. App. 1984). When a duty to warn arises, the duty may be breached in one of two ways: (1) failure to communicate the warning to the ultimate user; or (2) failure to provide an adequate warning of the product’s potential risks. Battersby, 526 S.E.2d at 163; see Wilson Foods Corp. v. Turner, 460 S.E.2d 532, 534 (Ga. App. 1995) (citing Thornton v. E.I. Du Pont De Nemours &Co. Inc., 22 F.3d 284, 290 (11th Cir. 1994)). “This duty to warn is a continuing one and may arise “months, years, or even decades after the date of the first sale of the product.” Watkins v. Ford Motor Co., 190 F.3d 1213, 1218 (11th Cir. 1999). “Some products are defective solely due to an inadequate or absent warning.” Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E.2d 208, 211 (1994).

The issue of failure to warn, including the lack of any warning or the adequacy of any warning, is one that the jury must resolve. See, e.g., Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 782 (Ga. App. 1987); Bryant v. BGHA, Inc., 9 F. Supp. 3d 1374, 1389-90 (M.D. Ga. 2014); Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (1983)(“Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. See Greenway v. Peabody International Corp., 163 Ga.App. 698, 294 S.E.2d 541 (1982). Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner. Beam v. Omark Ind., Inc., 143 Ga.App. 142, 145, 237 S.E.2d 607 (1977).”).

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I am working on a products liability case today that I have pending in Cobb County, Georgia in which my client was severely burned by a sulfuric acid drain opener (SADO). “Burn” may not be the accurate term…it is more like she had her skin dissolved by the sulfuric acid drain opener. She has been treated in three burn units and has undergone nine surgeries, including numerous skin grafts and fractional laser procedures. Yet she still has permanent scars over much of her body.

Do you know what’s in the drain opener you have under your sink right now?  Have you ever used a Sulfuric Acid Drain Opener?  My guess is you have no idea whether you have ever used a sulfuric acid drain opener.  SADO’s, as they are known in the chemical industry, are arguably too hazardous to sell to the public for use by the average consumer. And the average consumer has no idea just how ultra hazardous they are. SADO’s are often pure sulfuric acid, which nothing much added to them except water. They are typically “professional strength” and really should only be sold to professionals. Some manufacturers of SADO’s don’t even employ chemists to create their formula nor was their chemical formula originally created by an actual chemist. This makes the product extraordinarily dangerous to consumers as no professional chemist has even verified what is in the formula so the manufacturer really has no idea of exactly what they are selling.

In many cases, the label on SADO’s are not adequate to warn a lay user sufficiently about the type of chemical burns they can cause if they come in contact with a person’s skin or body. Keep in mind that in many third world countries SADO’s are used as a weapon, often in domestic violence incidents in which men throw sulfuric acid onto women’s faces to disfigure them permanently.  This is the same strength sulfuric acid that is being sold to consumers as a SADO.  For many years a group of concerned chemists have tried to get the sale of sulfuric acid drain openers banned in the United States.  These concerned chemists have petitioned the Consumer Product Safety Commission numerous times to try to get the Commission to take action to ban SADO’s because they are simply too hazardous for use by the average homeowner. But, apparently, politics always seems to get in the way and nothing happens.  Manufacturers keep making money and uninformed consumers keep getting harmed.

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