If you have you been injured, lost wages, or suffered other damages because of a product you used, you can seek recovery of those damages with the help of a defective products attorney. An attorney who specializes in this area will help you determine if you have a defective products claim to make against the manufacturer, retailer or distributor, by helping you determine the types and amounts of damages you have suffered. If it is decided that your injuries and/or financial losses are minor it may not make sense for you or the lawyer to pursue the case. One exception to this is if the problems have affected a large number of people; bringing the possibility of joining or starting a class action lawsuit. If it is found that you have large amounts of damages or that you could be part of a class action lawsuit and a decision is made to move forward with the case, it is critical to catalog and list all damages up front.
There are four theories of liability that can help determine if your case should move forward:
Breach of express warranty: the written warranty on a product/packaging or retailer signage/advertising says a product is good for a certain type of usage, but when you use it in that way you are injured.
Breach of implied warranty: an implied warranty is one imposed by state law on the manufacturer.
a. The implied warranty of merchantability says that the product must be reasonably fit for the purpose it was sold.
b. The implied warranty of fitness for a particular purpose imposes an additional obligation of product fitness when a seller is aware of the buyer’s intended use for that product.
3.Strict products liability vs. negligence:
a. Many jurisdictions allow for strict product liability arguments which mean that all you have to prove is that the product is defective and the defect caused your injury.
b. If you are forced to prove negligence, then, in addition to proving that the defective product caused your injury, you also need to prove that the manufacturer or supplier was not adequately careful in building or distributing their product.
4. Intentional misrepresentation/fraud: when you prove through a company/corporation’s records that it “knew” about a product’s defect but sold it anyway using false or misleading advertising or statements.
Pursuing a legal case for defective products leads to how much compensation the plaintiff is entitled and awarded. Compensation is called damages. The term “damages” refers to the sum of money paid to the winning plaintiff in a defective product lawsuit. State law determines the type and amount of damages you can seek and receive but they all fall within two camps: compensatory and punitive.
Compensatory damages or “actual damages” aim to compensate a plaintiff for their injuries. A dollar value is attached to each injury or financial loss and is paid by the defendant to restore the plaintiff to their original condition. If the plaintiff’s original condition cannot be returned, as in the case of permanent injury, a dollar sum is awarded based on the value of the injury.
Compensatory damages for economic losses, also called “special damages” and “monetary losses”, references lost money or property due to the injury.
Most common economic losses:
- Lost wages or profits
- Medical expenses
- Cost of disability (adapting to new lifestyle or ongoing expenses)
- Property loss or damage
Compensatory damages for non-economic losses, also called “general damages” and “non-monetary losses”, aim to compensate the plaintiff for losses that are more difficult to quantify such as physical or emotional suffering.
Most common non-economic losses:
- Pain and suffering. Defective product attorneys generally look at past injury cases to determine the amount of compensation you may be entitled to for loss of enjoyment of life, pain and anguish. Compensation can vary widely in this category.
- Loss of consortium also called “loss of society”. Compensation can be given for negative impacts on your spousal relationship including lost emotional support and affection, damaged sexual relations and companionship. Your spouse may also have a case for damages in this category.
If you are ready to pursue a products liability case, please contact an experienced defective products attorney at Bellingham’s Tario Law and Associates at 360-671-8500.