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How Product Recalls Affect Manufacturer Liability

How Product Recalls Affect Manufacturer Liability
Thousands of consumer goods get recalled every year, from tainted lettuce to defective cars. Sometimes a manufacturer voluntarily issues a recall after discovering a problem that makes their product unsafe. Other times a regulatory agency, such as the U.S. Food and Drug Administration or the U.S. Consumer Product Safety Commission, will take legal action to compel a manufacturer to issue a recall. Someone who is injured by a recalled product continues to have legal recourse against the manufacturer for products liability.

A product recall is not a “get out of jail free” card

Nevada’s products liability law provides that anyone involved in the creation or marketing of a dangerously defective product may be held legally responsible for any injuries the defect causes. NRS 695E.090. This captures not only the product’s manufacturer, but also its designer, importer, distributor, and marketer. One reason for this broad scope is to ensure that injured consumers have the best opportunity to recover for their damages, without needing to target only one entity. It then falls to the parties involved in the defective product’s distribution chain to work out amongst themselves who is ultimately responsible. Businesses involved in making or marketing consumer goods typically carry insurance to cover products liability claims. An injured plaintiff can sue on two different theories:
  1. Negligence. The plaintiff must show that the defendant failed to take reasonable care to ensure the product was reasonably safe.
  2. Strict products liability. If sufficient facts are available, the plaintiff can seek to shift the burden of proof to the defendant by showing that the defect was present in the product when it left the defendant’s possession, the plaintiff used the product in a foreseeable way, and the defect caused the plaintiff’s injury. Nev. J.I. 7.02.
A product recall doesn’t absolve the parties in the chain of liability from responsibility. In fact, it can be a potentially powerful piece of evidence in a trial. The fact a product was recalled can be used to establish that the product was, in fact, defective. If marketers and distributors don’t pay attention to the recall they may be committing a serious act of negligence. To ensure fairness, a plaintiff must be able to show that the defect was present in the specific item that caused the injury. For example, a manufacturer of electric blankets issues a recall for a blanket due to a short in its power switch that creates a fire risk. If the plaintiff was injured by a fire caused by the same short, chances are good that a court will allow the fact of the recall to be presented to a jury. But if the plaintiff was injured by a different problem with the blanket (such as a short within the sheet itself), the recall probably isn’t relevant.

Ignoring a recall and assuming the risk of injury

Consumers who become aware of a product recall should comply with them to avoid injury. Failing to heed a recall is not just dangerous, but also potentially hands potential defendants a legal argument that the plaintiff assumed the risk of injury by continuing to use the product. The weight of an assumption of risk defense will depend on the facts. A plaintiff injured by a burning electric blanket may be assuming the risk of injury if she ignored multiple recall notices and a news story about the issue. For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area in products liability cases. If you have been injured by a defective product and have questions about your legal options, our attorneys can help. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Unintended Acceleration Cases in Nevada

Unintended Acceleration Cases in Nevada
Modern cars are enormously sophisticated machines, but they still can have major mechanical problems. One curious issue that is sometimes blamed for causing accidents is unintended acceleration, in which a car lurches forward seemingly without the driver deliberately touching the gas pedal. Thanks to modern diagnostics systems it’s possible to analyze the root cause of acceleration after an accident. People injured in accidents involving unintended acceleration may have the option of suing the car manufacturer.

Potential causes of unintended acceleration

The controversy surrounding the Toyota Prius is the most famous example of unintended acceleration. About ten years ago Toyota responded to numerous claims that its Prius models were suddenly accelerating by arguing that the issue was being caused by slipping floor mats. But Toyota later admitted that they’d also discovered that some of its accelerator pedals were prone to getting stuck in a partially depressed position. Toyota issued a recall for certain car models and paid $1.2 billion to avoid criminal prosecution for its efforts to conceal the real cause of the problem. Sticky accelerators and badly fitted floor mats are not the only potential causes of unintended acceleration. The complexity of modern car systems exposes them to potential electronic faults that could cause the problem as well. Researchers have identified problems that can arise due to CPU failures caused by voltage spikes. Faulty cruise control systems can also be responsible.

Nevada’s products liability law and unintended acceleration

The chief aim of products liability law is to encourage manufacturers and marketers of consumer goods to make their products safe. It does this by giving injured plaintiffs an advantage in the courtroom, by placing the legal burden upon the manufacturer to show that it should not be held liable. This is called strict products liability, which in Nevada requires the plaintiff to show that each of the following things is true (Nev. J.I. 7.02):
  1. The defendant was the manufacturer or marketer of the product. In addition to the auto manufacturer, the plaintiff might also sue the dealer and other parties that could have had a role in introducing the defect that caused the unintended acceleration.
  2. The product was defective. Proving defects in a car that was totaled during an accident may require expert analysis, especially in extreme cases where the car’s “black box” memory was destroyed.
  3. The product’s defect existed when it left the defendant’s possession. A third-party modification to the car may relieve the manufacturer of responsibility under a strict products liability theory. For example, if a dealer’s mechanic makes adjustments to an accelerator system the fault may lie with the dealer, though the auto manufacturer may have responsibility under other theories, including negligence.
  4. The plaintiff used the product in a way that was reasonably foreseeable by the defendant. Products liability cases often involve novel uses of ordinary objects. Even a novel use can be “foreseeable” within the meaning of this element, but such cases require careful argumentation.
  5. The defect caused the plaintiff’s damages. Causation can often be a focus in litigation. For example, if before the accident the unintended acceleration had stopped, but the driver hadn’t hit the brakes, the driver’s negligence may be an intervening factor.
As the brief comments above show, establishing a case for strict products liability can be complicated even despite the law’s aim of helping injured plaintiffs recover compensation. For over 45 years the law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area in personal injury cases. If you have been injured in an unintended acceleration accident, please reach out to us today for a free attorney consultation. Call us at 702-388-4476 or send us a request through our site.

Branded Pharmaceutical Company Liability for Generics: The Zofran Case

Branded Pharmaceutical Company Liability for Generics: The Zofran Case
Despite intense regulation by federal agencies and rigorous testing by the medical and pharmaceutical industries, drugs sometimes cause unexpected side effects. When side effects are severe enough to cause long-term health problems, the affected patients may want to sue the drug manufacturer for compensation. These complex cases involve many moving parts, especially if the drug involved was a generic equivalent of a branded drug. A case last year in Massachusetts highlighted the challenges faced by plaintiffs.

Zofran is allegedly linked to birth defects

Pharmaceuticals manufacturer GlaxoSmithKline (GSK) produces Zofran (generically, Ondansetron), an anti-nausea medication. One of the common uses of Zofran is to treat morning sickness in pregnant women. Although the U.S. Food and Drug Administration has approved Zofran for use treating nausea generally, it has not approved it as a treatment for morning sickness. Since 2015 a wave of lawsuits has been brought against GSK arguing that Zofran causes birth defects such as heart problems, cleft palates, and skull deformities. Hundreds of plaintiffs have filed suit arguing that GSK knew as early as 1992 that Zofran posed a risk of defects, misrepresented and suppressed that risk, and should be held liable for the resulting injuries. Readers should bear in mind that the science behind this claim is not clear: a 2016 study published by UCLA found no link between Zofran use and birth defects.

Is GSK responsible for generic forms of Zofran?

One of the interesting legal questions raised by the Zofran litigation is whether GSK can be sued for injuries allegedly caused by generic versions of its drugs. Such lawsuits face complex hurdles. Generic drug manufacturers are exempt from state-law tort liability. But the branded manufacturer has no control over the manufacture or sale of generic equivalents of its medicines, which can leave injured plaintiffs without legal recourse, at least under state products liability theories. See PLIVA, Inc. v. Mensing, 564 U.S. 604, 624 (2011). In the multidistrict litigation case In re Zofran Ondansetron Prods. Liab. Litig., 261 F. Supp. 3d 62 (D. Mass. 2017), numerous plaintiffs argued that GSK is responsible for injuries by the generic equivalent of Zofran because GSK created a market for Zofran as a treatment for morning sickness when the FDA had not approved that use and GSK allegedly knew of the risk of birth defects. A central issue in the case is a federal law requirement that generic drugs carry the same FDA-approved label as their branded equivalent. Therefore, the plaintiffs argued, the generic manufacturer could do nothing to remedy GSK’s failure to include warnings about potential side-effects for pregnant women. The court in In re Zofran granted GSK’s motion for summary judgment, citing a long string of precedent holding that branded manufacturers cannot be held liable for injuries caused by generic equivalents of their products. (Among the cases cited by the court was a case involving similar issues under Nevada law, Moretti v. Wyeth, Inc., 579 Fed. Appx. 563, 565 (9th Cir. 2014)). The court also refused the plaintiffs’ request to certify a question of law to the plaintiffs’ various home state courts, which would have asked them to opine on whether a brand-name manufacturer was immune from liability under state misrepresentation laws for creating a market for an unapproved use of its drug. The court’s reasoning again highlights the problem plaintiffs face in these cases: because the question assumed facts that were not in evidence (misrepresentations by GSK created a market, resulting in injuries) the court concluded that certification was not appropriate, even where state law permitted it.

GGRM is a Las Vegas personal injury law firm

The Zofran litigation highlights challenges faced by people who are injured by prescription drugs. When a medicine causes a serious problem it’s important to consult with an attorney to understand what may be required to pursue compensation from the drug manufacturer. The law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area for over 45 years. Call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

Personal Injury and the Internet of Things

Personal Injury and the Internet of Things
Like other technological innovations, the Internet-of-things is raising novel legal questions. Ordinary devices like thermostats, microwaves, and door locks increasingly feature networked functionality. Although putting household devices on a network adds useful features, it also creates opportunities for hackers. Hacks to some kinds of networked devices have the potential to cause property damage and personal injury.

The vulnerability of Internet-of-things devices

Internet-of-things devices are notoriously insecure. Some have relatively simple software designs that are easily overcome by sophisticated hackers. Others, such as electronic door locks that respond to verbal commands, can be defeated by low tech methods like voice recorders. Because each device on a typical home network sits behind the network’s digital firewall, once a hacker breaches the security of one networked device it can be easier to access and control other devices on the network as well. The potential harm from attacks against these devices ranges from inconvenience to serious danger. A home thermostat remotely set to its maximum temperature will run up utility bills and could damage a furnace, but could also make a home dangerously hot for an infirm resident. A clothes dryer that’s forced to run could cause a fire. Analysts have even discovered vulnerabilities in a motorized wheelchair that could allow it to be controlled remotely.

The potential for lawsuits

Someone who is injured as a consequence of security failures in these devices will need thoughtful guidance from an attorney. What appears to be the cause of an accident may only be a downstream consequence of failures elsewhere in a network. Determining the best strategy for recovering compensation will require a close technical analysis. Let’s consider the hypothetical case of the hacked clothes dryer. The manufacturer of the dryer may be legally liable under a products liability theory. Even if the dryer was hacked and its electronic safety mechanisms disabled, perhaps it should have included a non-networked emergency shutoff to prevent overheating. But what if the dryer’s security was defeated by a hacker using a back door created by another device on the network, such as the homeowner’s printer? Was the failure of the printer’s security the real cause of the fire? Insurance may be an important issue for homeowners facing this situation. Many insurance policies make exceptions for data breaches, which would need to be covered under a separate “cyber policy.” This has become a serious problem in the business insurance world, but could also be a problem for a homeowner whose claim is denied on grounds that the cause of the damage was outside the homeowner’s coverage.

GGRM is a Las Vegas personal injury law firm

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped injured clients in the Las Vegas area recover compensation. We are keeping close tabs on the evolving intersection of technology, law, and injury. If you have questions about how Internet-of-things devices could affect your legal options, call us today for a free attorney consultation at 702-388-4476, or request a call through our website.

Understanding Gun Manufacturer Liability for Injuries

Understanding Gun Manufacturer Liability for Injuries
Firearms are inherently dangerous devices. Whether accidental or intentional, injuries from firearms can have long-lasting consequences for victims. In some cases, the role of the firearm itself in contributing to the injury can become a focus, especially if a defect in the gun’s design or manufacturing played a significant role. People injured by guns should take a moment to understand how Nevada law limits gun manufacturer liability.

Nevada shields gun manufacturers from some types of liability

In Nevada a gun manufacturer cannot be sued solely because its product was involved in an injury. Under NRS 41.131, manufacturers and distributors of firearms and ammunition are shielded against lawsuits that are based solely on the theory that the gun or ammunition was dangerous, was discharged, and was the legal (or proximate) cause of the injury. Although the statute explicitly does not limit suits that allege design or manufacturing defects (see below), the mere fact that guns are dangerous cannot be used to establish that a specific firearm is improperly designed. The practical consequence of NRS 41.131 is that any lawsuit against a gun manufacturer needs to be based on more facts than just a causal relationship between the gun and an injury. The fact that a gun works as designed—that is, it fires the ammunition loaded in its chamber when the trigger is compressed—isn’t enough to support a lawsuit. This is true even if the gun is used by someone unexpected, like a child who accidentally gets ahold of it. Although in such situations other theories may apply, like the negligence of the gun owner who didn’t lock up a loaded weapon, the gun manufacturer is shielded from liability.

Guns and products liability

NRS 41.131 leaves open the possibility of lawsuits against gun manufacturers for manufacturing and design defects. Nevada’s products liability laws provide consumers with powerful legal tools for recovering compensation in appropriate cases. Like any manufacturer of consumer goods, a gun manufacturer can be liable for a defective weapon provided the defect existed when it was in the manufacturer’s possession, the injured plaintiff was using the gun in a reasonably foreseeable way, and the defect caused the plaintiff’s injury. Ginnis v. Mapes Hotel Corp., 86 Nev. 408 (1970); Nev. J.I. 7.02. Examples of actionable gun defects might include a chamber that explodes when a bullet is fired, or an imperfect barrel that causes an explosive misfire. Needless to say, such defects are rare. Note that manufacturers probably aren’t responsible for defects introduced by modifications to a weapon. Also note that manufacturers are not responsible for injuries from an unforeseeable use of a gun. Someone who uses a loaded gun barrel as a smoking pipe probably bears responsibility for the resulting injury.

The GGRM law firm can answer your questions

Suing a gun manufacturer requires a careful examination of the facts surrounding a firearm injury. The attorneys at Greenman Goldberg Raby Martinez have helped personal injury clients recover awards for over 45 years. If you have questions about a gun-related injury we are happy to review your case and answer your questions. 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.

When Safety Tools Don’t Work As Advertised, What Next?

When Safety Tools Don’t Work As Advertised, What Next?
We all rely on the products we use to be safe. That’s especially true of equipment designed to prevent accidents. When safety tools break, serious injury or even death can result. Nevada products liability law provides recourse to those who are injured by defective safety tools.

The elements of a strict products liability claim in Nevada

As a matter of policy, Nevada wants to protect consumers in the state from being harmed by products that are badly made, poorly designed, or inadequately labeled. One way the state protects consumers is by allowing them to bring lawsuits under the theory of strict products liability. Liability for a defective product can rest with a broad range of potential defendants, from designers and manufacturers to packagers and sellers. NRS 695E.090. Generally speaking, a plaintiff in a strict products liability case must prove five things:
  1. The defendant falls within the scope of persons responsible for the product (as a manufacturer, seller, etc.).
  2. The product had a defect that made it unreasonably dangerous.
  3. The defect was present at the time it left the defendant’s possession.
  4. The plaintiff was using the product in a way that was reasonably foreseeable by the defendant.
  5. The defect caused the plaintiff’s injury.
Fyssakis v. Kinght Equipment Corp., 108 Nev. 2012, 2014 (1992); Nev. J.I. 7.02.

The kinds of “defect” in Nevada strict products liability law

Nevada recognizes three types of defects that can support a strict products liability claim:
  • Manufacturing defects. These are problems with a product introduced at the time it was made. A manufacturing defect can be inferred from an unexpected, dangerous malfunction, such as a ladder suddenly collapsing under someone (see Krause Inc. v. Little, 117 Nev. 929, 938-39 (2001)), or a seatbelt that fails in a car accident.
  • Design defects. A manufacturer can be liable for injuries caused by a use or foreseeable misuse of a product that was not accounted for in the product’s design. Robinson v. G.G.C., Inc., 107 Nev. 135, 139 (1991). A mountain climber’s carabiner can be put to all sorts of uses, but can be dangerous if the manufacturer elects to make it from a material that’s too soft to hold a foreseeable load, like more than one person at a time.
  • Failure to warn. In a failure-to-warn case, the product defect is simply that it lacked adequate labeling or other warnings to alert consumers to the risk of injury. Rivera v. Philip Morris, 125 Nev. 185, 191 (2009). A child’s car seat is covered with warnings about its proper installation because a failure to include such instructions would inevitably lead to injuries from improperly installed seats.

Defenses to strict products liability

Once a plaintiff in a strict products liability case has established each of the elements, the defendant has relatively few defenses. Perhaps the most important feature of strict liability is that the defendant cannot avoid liability by showing that the plaintiff’s negligence contributed to the injuries. Because strict liability is not a theory of negligence, the comparative negligence of the plaintiff isn’t relevant. Young’s Mach. Co. v. Long, 100 Nev. 692, 694 (1984). Although contributory negligence is not an option, a defense can still be founded on the plaintiff’s assumption of risk or misuse of the product. Id. For example, a plaintiff who rides a motorcycle while wearing a bicycle helmet arguably has assumed the risk of head trauma.

Filing a products liability lawsuit in Nevada

A serious injury from the use of a product can be enormously disruptive. Working with a caring, attentive personal injury lawyer can relieve some of the stress of working toward compensation for medical bills and lost wages. The attorneys at the law firm of Greenman Goldberg Raby Martinez have served the Las Vegas community for decades. For a free attorney consultation, reach out to us today at 702-388-4476, or send us a request through our site.