Defective Products/Unsafe Drugs

All too often we hear on the news or social media that a drug or product is being "recalled" or "removed from the shelves" because it is too dangerous. If you or a loved one has been injured as a result of an unsafe product or drug, you may have what is called a "product liability" case.

Our White Plains defective product attorneys will help you determine if you have a product liability case, and if so, will fight for your right to economic justice. Contact a Westchester County product liability attorney today.

In New York, there are several different ways of proving a product liability case. A product may be: 1) defectively designed; or 2) it may be defectively manufactured; or 3) it may not have come with adequate warnings concerning its use. Proving a design defect, or a manufacturing defect, or a lack of adequate warnings, can be difficult and expensive, and it always requires careful analysis and testimony by at least one expert, and sometimes several experts.

What does strict liability mean?

Under the doctrine of strict liability, you do not have to prove "negligence." Rather, the manufacturer and the seller of a defective product (in fact, anyone in the distributive chain) can, in theory, be held liable if the defect is a substantial factor in causing injury or damage. However, you must also show that: 1) the injury or damage occurred when the product was used for the purpose and in the manner normally intended; and 2) that if the injured party is the user of the product, he or should could not, by the exercise of reasonable care, have both discovered the defect and perceived its danger; and 3) that the injured party's exercise of reasonable care would not have averted the injury or damage. This is a tall order to be sure. Product liability cases are difficult to prove and often painstakingly slow to get to the courthouse. More important, they are always defended vigorously by the manufacturer.

If the manufacturer of a product is from a foreign country, can it still be sued here in the United States?

The short answer is, "Yes." However, certain rules apply, depending upon the country involved. Sometimes it requires translating the complaint into the native language of the manufacturer and serving the summons and complaint in the manner prescribed by the Hague Convention.

KK&S has successfully litigated cases against both foreign and U.S. manufacturers.

Does a manufacturer have a duty to warn, even if the person injured actually knew of the danger or if the danger could have been discerned using one's common sense?

Despite news stories, political criticisms, and late night humor or commentary, it is not true that a manufacturer has a duty to warn, for example, that a knife is sharp, or that boiling water is hot. Under New York law there may be no duty to warn if the injured person is fully aware of the hazard through general knowledge or common sense; or if the hazard is "patently dangerous" or otherwise poses an open or obvious risk. However, a manufacturer must supply a warning to alert the user to avoid uses of the product that would appear normal and reasonable but are actually unsafe. The degree of danger in using the product is a critical factor in determining how specific the warning must be in order for it to be considered adequate.

Again, there is no duty to warn when the user is actually aware of even a latent defect, or when the specific hazard or danger concerning the use of the product is readily discernible. If you have been injured by a product that you think is unreasonably safe, consult with a top-rated personal injury attorney with product liability experience.

Does the duty to warn apply to prescription drugs?

Yes. In fact, the duty to warn assumes great significance in a products liability case involving pharmaceuticals. If the drug is pure and accompanied by adequate warnings, the manufacturer may not be held liable. However, even if the prescription drug is "pure," if adequate warnings are not provided concerning its use, it may be considered "unreasonably dangerous," and in that way it becomes a "defective product" for the purposes of strict product liability.

Moreover, a drug manufacturer has a continuing duty to keep abreast of knowledge of its products gained through research, adverse reaction reports, scientific literature and other available methods. Just as important, a manufacturer must take all reasonable and necessary steps to bring that knowledge to the attention of the medical profession. After all, all of us seeking medical care entrust our well-being, and often our lives, to the hands of our physicians. We all rely upon not only their skill and competence, but also upon the medications they prescribe.

Sample Defective Product/Unsafe Drug Verdicts and Settlements

In Cusano v. Club Fit Management Inc., Jefferson Valley Racquet Club Inc., AMF: American Athletic Inc., JVR No. 400467, 2002 WL 31414905, Michael Cusano, a 31-year-old male landscaper suffered herniated discs at C5-6, L4-5 and T9-10 and torn muscles in his right shoulder when the bench press pad slipped from under him while he was using bench press equipment, designed and manufactured by the third- and fourth-named defendant at the defendant and co-defendant health club. Our theories of liability were the following: 1) that the defendant and co-defendant failed to maintain the premises in a safe condition; 2) failed to properly inspect and maintain the equipment in proper working order; and 3) failed to warn of the known dangerous condition. We further contended 4) that the remaining defendants defectively designed the bench press equipment and that it was unsafe for its intended use and purpose. The case ultimately settled for $2,600,000.
Heath v. Makita Corp., 255 A.D.2d 419, 419 (2d Dep’t 1998), was a complex products liability case against an electric “chop” saw manufacturer, Makita Corporation, whose corporate headquarters are based in Japan. Mr. Heath lost his left hand while cutting a piece of crown molding with a Makita saw. At trial, KK&S established liability based upon the failure of Makita to provide an adequate guard. However, we appealed the verdict based upon a legal error in the trial court’s jury charge on damages that we argued had resulted in a verdict that was too low. The appellate court agreed and sent the case back for a new trial solely on damages as we had requested. Thereafter the case settled in the amount of $1,650,000.