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Knockoffs and Products Liability

Knockoffs and Products Liability
Counterfeits and knockoffs have long been a staple of the global consumer marketplace. Paying full price for a watch or a pair of shoes only to receive a cheap imitation of the real thing is frustrating. But when a knockoff product causes an injury, the injured person may feel as though there’s no legal recourse available, because the product’s manufacturer is hard to identify. But products liability law gives injured consumers powerful tools for pursuing compensation even if the origin of a product isn’t immediately known.

Every business in a product’s chain of custody is potentially liable

Under Nevada’s products liability law, it isn’t just a designer or manufacturer that is potentially liable for injuries caused by a defective product. Anyone involved in marketing the product may be held responsible as well. This has been the rule since the Nevada Supreme Court’s 1966 decision in Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, in which the plaintiff sued both the manufacturer and distributor of a bottle of Squirt that contained a dead mouse. The Court pulled no punches in letting the suit go forward against the soda’s distributor: “By placing their goods upon the market, the suppliers represent to the public that they are suitable and safe for use; and by packaging, advertising, and otherwise, they do everything they can to induce that belief.” The Court in Dolinski adopted the rule of strict products liability, which provides that a plaintiff can shift the burden of proof to the defendant in a case where certain elements are met. The defendant must be the manufacturer or marketer of the product, which was defective when it left the defendant’s possession. The plaintiff, meanwhile, used the product in a reasonably foreseeable way, and was injured by the defect. Ginnis v. Mapes Hotel Corp., 86 Nev. 408 (1970), Nev. J.I. 7.02. In such cases, a defendant can be held liable without the plaintiff first proving the defendant’s negligence. Hence it is called “strict” liability.

The original designer is a potential ally

As a practical example, say a cyclist buys a replacement seat post for her bike on Amazon. Thinking she’s getting a high-end carbon-fiber post, she’s disappointed when it arrives packaged only in a plastic bag and looking a little rough around the edges. She shrugs and installs the post anyway. A couple rides later, the post suddenly cracks when she goes over some rough pavement, causing her to crash and suffer serious injuries. When she contacts the manufacturer she thinks built the post, it quickly becomes clear that the post isn’t genuine. Suing Amazon for selling a defective product is an option for this cyclist. If the seller was not Amazon itself, but one of its marketplace sellers, she may need to sue them as well. Bear in mind that the consumer isn’t the only one harmed by knockoffs: the creator of the copied product has a financial interest in identifying the sources of knockoffs so it can shut them down. In some cases the original manufacturer might even be a useful ally to an injured consumer who is mustering legal resources to pursue a potentially shadowy overseas defendant.

GGRM is a Las Vegas products liability firm

For almost 50 years the law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area in cases involving personal injury, products liability, and workers’ compensation. If you have been injured by a defective product and would like to understand your options for seeking recovery, we are here to help. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.

Marketing Defects and Personal Injury In Nevada

Marketing Defects and Personal Injury
Nevada’s products liability laws protect consumers from defective goods by allowing people who are injured by defective products to sue for damages. A products liability claim can arise from defects in a product’s design, manufacture, or marketing, or some combination of each. But what is a “marketing” defect?

When a marketing defect can arise

As the name suggests, a marketing defect occurs in the way products are presented or explained to consumers. It may have nothing to do with the product itself. Instead, the issue may be with the product’s packaging, documentation, or even advertising. For injured plaintiffs, a preliminary concern will be to identify potentially responsible parties. Each product will require a different analysis to determine who might be responsible for a marketing defect. For example:
  • Liability for inadequate instruction on the use of a factory-installed car jack probably rests with the auto manufacturer.
  • Liability for a misleading food label (“contains no nuts” when in fact it contains peanuts) might rest with a packaging firm as well as the manufacturer.
  • Liability for the incorrect statements of a salesperson might rest with the retailer.

Failure to warn of dangers

A common source of marketing-defect litigation is inadequate documentation about hidden dangers that consumers might face while using a product. In such cases, the plaintiff needs to show that the product was unreasonably safe because of the absence of adequate warnings or instruction. Nev. J.I. 7.05. For legal purposes, a product is dangerous “if it fails to perform in the manner reasonably to be expected in light of its nature and intended function.” General Elec. Co. v. Bush, 88 Nev. 360, 364 (1972). A product can be perfectly made and still be defective if it is unreasonably dangerous for it to be put into the hands of consumers without suitable warnings about its safe use. Id. at 364-65. On the other hand, a manufacturer is “entitled to assume the product will not be subjected to abnormal or unintended uses.” Van Duzer v. Shoshone Coca Cola Bottling Co., 103 Nev. 383, 385 (1987). As an example, consider a circular saw. Such a tool is undeniably dangerous in and of itself. Every circular saw on the market today carries hard-to-remove warning labels and comes with a detailed manual specifically to protect the manufacturer from marketing defect lawsuits. But it’s easy to imagine hypotheticals where things could go wrong:
  • A consumer removes the saw guard because it interferes with her work. She later suffers a serious cut. The saw’s labeling and instructions, which the consumer had put away without glancing at them, are silent about removing the guard. Arguably, the manufacturer should have anticipated that a consumer would remove the intrusive part, but it will certainly label its removal as an “unintended use” in hopes of avoiding liability.
  • Although the saw carries a warning label about the proper torque to be applied when installing a new blade, the warning is hidden behind the saw guard and is easy to miss. A consumer applies the improper amount of torque and the blade flies off, injuring someone. Was the warning label sufficient?
  • An industrial-metal band uses the saw to create loud noises in the studio. The musician using the saw develops severe carpal tunnel from “playing” the saw too much. Is this an abnormal use?
As you can see, the facts of each products liability case require careful analysis from an experienced attorney. Easy answers are rarely available in these cases, because it can be hard to find the line between proper and improper use, safe and unsafe practices, and adequate or inadequate documentation.

Consult with GGRM about your marketing defect questions

The attorneys at Greenman Goldberg Raby Martinez work with clients in the Las Vegas area to recover what they deserve after a serious accident or injury. We specialize in taking a personal approach with each complex case. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.