A Latin phrase that attorneys become familiar with is “res ipsa loquitur.” It means that an incident that causes a victim injury speaks for itself, reducing their burden of proof amid circumstantial evidence in a liability case. A successful claim, though, is as precise as possible in drawing a line between harm or injury and the specific defectiveness of an item or piece of merchandise.
Product liability cases run the gamut from large, class-action lawsuits to individual tort claims. Famous examples include the multi-billion dollar payouts by Johnson & Johnson to women who successfully argued products such as its talcum-based baby powder were a key contributor to their development of ovarian cancer. An appeals court in Missouri concluded the company knowingly disregarded consumer safety by failing to warn consumers that talc could cause such cancer.
In another still-ongoing large lawsuit, hundreds of consumers are pursuing the manufacturers of the heartburn drug Zantac, alleging the manufacturers knew of the dangers of a chemical in the drug called NDMA but failed to properly warn the public.
In Massachusetts, however, the state’s highest court rejected a claim in January by a woman who sued a drug manufacturer over a knee injection that triggered side effects so severe she fell and broke her neck, among other injuries. In essence, the judge said that she could not prove her injuries had a direct, cause-and-effect relationship with the shots.
Why do some product liability claims succeed and others fail? While these claims can draw on as many legal theories and principles as possible, overlapping with personal injury or general negligence claims, four basic conditions that must be satisfied:
- The product or item was either sold in a dangerous condition, or the manufacturer didn’t adequately warn consumers of the potential danger. The Johnson & Johnson and Zantac cases fulfill this requirement on both counts. At a minimum, acting responsibly would have meant establishing an expectation of potential danger to the general public or certain groups because of their product’s ingredients.
- The manufacturer of the product had a reasonable expectation it would not be changed or altered by the time it reached the consumer. Assuming no tampering occurred after the fact, they should stand by the product’s integrity once it leaves the production floor.
- The consumer was injured or sustained a loss from the defective product. “Near-misses,” where a person almost hurts themselves or just narrowly avoids other property damage from the defective product, fall short – though you may be surprised by just how many plaintiffs attempt to pursue a case on these grounds. Instead, a tangible and demonstrable injury or loss must occur.
- The injury or loss had a direct, not just circumstantial, correlation to the defective product. The Massachusetts case, where the plaintiff sued for failure to warn, breach of warranty and negligence as well as product liability, fell apart on this point. The case failed to establish anything the pharmaceutical company that manufactured the knee injection did or did not do that caused the plaintiff’s injuries.
Some plaintiffs may attempt to contend that the product or item’s design, rather than how it was manufactured, was what caused their injury. But in product liability cases, this is a much narrower road because a defendant can successfully argue the onus was on the purchaser of the product to understand the risks.
It’s important to confirm that an express or implied warranty was present if the plaintiff intends to contend that a warranty was breached. This is particularly the case if a manufacturer or seller’s representation of a warranty induced an individual to purchase a product.
Res ipsa loquitur is not all that it seems to be, but attorneys skilled in the nuances of this principle can maximize your compensation when a defective product causes you injury, loss or harm. The team at Circeo Law Firm is just a consultation away to guide you through your options and help develop a winning strategy.