When an individual is injured by a defective product, the first priority should be to seek medical attention, and then, compensation from the manufacturer of the product afterward in the form of a products liability legal action. Products liability lawsuits are used to compensate injured individuals for injuries caused by defective products.
Retaining the services of a personal injury attorney with experience in products liability claims can help to ensure that a victim receives the maximum compensation possible. In an effort to limit their legal exposure, many businesses, once they discover that one of their products contains a defect, issue a recall to get as many of the defective products out of commission as soon as possible.
A recent example of this is the Kimberly-Clark Corporation, which issued a recall of its Kotex Sleek brand of tampons due to a risk of product disintegration and incomplete removal upon use. This risk could result in bacterial infection, severe illness, and/or possible life-changing complications, such as toxic shock syndrome. A discussion of the legal ramifications of putting a dangerous product into the marketplace, and options available to an injured individual, in light of a recall, will follow below.
Negligence in Massachusetts
When an individual is injured as a result of a defect in a product, he/she would typically proceed with a products liability lawsuit, which is a form of negligence. To succeed in a products liability action, based on negligence, a plaintiff must prove that the product contained a defect, which would mean that the product’s manufacturer failed in upholding its duty to the public to provide a safe product and that the injuries suffered by the plaintiff were a direct result of this failure. The defect in the product can either be a defect in the manufacturing of the product or in the design of the product.
When a Recall is Issued in Massachusetts
Recalls, in general, are orders issued by a product’s manufacture that note that the product contains a defect. Further, most recalls provide an avenue by which a purchaser can return the product to the manufacturer. In some cases, the manufacturer may provide a substitute when the purchaser returns the defective product. Accordingly, a product recall can be considered as an admission that the product is defective, which would seem to indicate that the manufacturer failed in its duty to provide a safe product to the public.
However, if it can be proven that a purchaser was not only aware of the recall but continued to use the product, in spite of the warning, that purchaser may not be able to recover compensation. Massachusetts follows a comparative negligence scheme, meaning a negligence award is reduced by the percentage of fault attributable to the plaintiff.
As an example, if a jury determines that a plaintiff is at 25 percent at fault, then his/her reward would accordingly be reduced by 25 percent. It seems likely that a plaintiff in this situation – who knows of the recall yet continues to use the product – would be deemed to be wholly at fault for his actions, thereby preventing recovery. Under the Massachusetts comparative negligence scheme, if a Plaintiff is found by a factfinder (Judge or jury) to be more than 50% at fault, then this would be a complete bar to recovery – the Plaintiff would receive nothing!
However, if a plaintiff was unaware of the recall, or if he/she was injured before the recall was issued, the fact of the recall may be introduced at trial to show that the manufacturer put a defective product in the marketplace. However, it would still be necessary for the plaintiff to prove the other elements of negligence to be successful and receive compensation.
Speak to a Massachusetts Products Liability Attorney
If you, or a loved one, were injured due to a defect in a product, and are curious about your options for compensation for your injuries, including for products that have been the subject of a recall, speak to an attorney with experience in products liability matters. Regardless of the existence of a recall, you or your loved one should not have to shoulder the financial burden of recovery alone. Goldberg & Weigand, LLP know how to structure a legal claim for products liability in an effort to get you the compensation you deserve. Contact the premier Cape Cod personal injury attorneys at (508) 203-6600 for a free consultation.
Attorney Peter M. Goldberg is the founder of and managing partner at Goldberg & Weigand, LLP, and has been in private practice since 1986. He takes pride in the fact he deals directly with his clients on a daily basis working to get their cases resolved to the fullest extent of their rights. Peter practices personal injury law and workers compensation law in Massachusetts.