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© 2007 Lee Tarte Wallace
Was the product that injured me defective? How to tell.
If you or a family member have been injured by a product, you may be wondering whether the product was defective. Here are some tips on how you can tell.
Manufacturers design and make products to sell. Obviously a manufacturer will know far more about its own products than a consumer will. For that reason, the law requires each manufacturer to take responsibility for the products it makes.
Engineers and designers have come up with three main categories of defects that products may have. They call these three categories the “Design, Guard, Warn” hierarchy.
(1) Design. The product that caused your injury may have been defective if it was designed improperly.
Obviously the best possible scenario would be for the manufacturer to make a safe product in the first place. Calling this goal “design” may be a little misleading, because a manufacturer really has to do two things at the outset.
First, the manufacturer has to design a safe product. A product that is not designed safely has a design defect. For example, one of my clients was using a brand new grinding wheel. The wheel exploded into several pieces, and one of the pieces hit him in the eye, blinding him in that eye. We discovered that other manufacturers were using a “daisy wheel” design for their grinding wheels. These manufacturers were molding the rubber wheel around a metal center shaped like a daisy. The “petals” of the daisy radiated out through the wheel, and helped hold the wheel together when it began rotating at very high rpm’s. The manufacturer who made my client’s wheel, however, used a metal center with no petals. When the wheel hit a certain rpm level, it had no structure to hold it together, so it broke into pieces. In fact, we discovered that my client was not alone – these wheels had exploded when other people were using them, too.
Even the best design will be of no use if the manufacturer doesn’t actually use the design, however. So the second thing the manufacturer must do is manufacture the product correctly, according to the design specifications. If a manufacturer does not follow the design plan, the product will have a manufacturing defect. For example, a car manufacturer used a welding machine that had been miscalibrated, and the welds ended up in the wrong spot. The welds were supposed to attach the roof to the metal pillar that sits between the driver’s side window and the front windshield. Because the welds were so far to the outside, when the car was in a collision, the welds ripped out. The metal post separated from the roof and collapsed into the car, killing the young man who was driving.
Obviously not all defects result in personal injury. Sometimes product defects can cause financial injury instead. For example, a furniture manufacturer received a bad batch of glue. Rather than wait for a better batch, the manufacturer went ahead and used the bad glue. The furniture made with that bad batch of glue fell apart within weeks of the time it was delivered.
(2) Guard. The product that caused your injury may have been defective if the manufacturer should have put a guard on the product, but didn’t.
Clearly manufacturers should make products safely when they can. If it impossible to make a safe product, the manufacturer should guard against the danger.
A circular saw is a great example of this principle. In order for a circular saw to do what it is supposed to do, the manufacturer has to design the saw so that it has a sharp blade that rotates fast enough to cut through lumber. On the other hand, the manufacturer can put a guard on the product that will keep someone’s hand from slipping into the saw while the blade is rotating. The manufacturer also can install a safety interlock device, so that if someone lets go of the saw handle, the engine automatically cuts off.
(3) Warn. The product that caused your injury may have been defective if the manufacturer should have warned you about the product’s dangers, but didn’t.
A warning is considered a last resort, to be used only if the manufacturer cannot make a safe product and can’t guard against its dangers.
The warning has to fairly tell the user what the danger is. For example, a manufacturer cannot warn that, “Breathing fumes may cause temporary discomfort,” when it really ought to say: “Breathing fumes may cause death.”
The warning also has to be in a spot where people can see it. Once I was investigating a case in which a tire exploded while it was being mounted on the wheel. I found a warning on the wheel – in tiny type, on the inside of the wheel, where it could only be read with a magnifying glass and a flashlight, by someone who knew to look for it. For all practical purposes, this product had no warning.
If you believe you have been injured by a defective product:
 
Has the product been recalled? How to find out
Six federal agencies have banded together to create one central web page where you can search to see whether a product has been recalled by the federal government: recalls.gov.
The six agencies are:
- United States Coast Guard
- Consumer Product Safety Commission – CPSC
- Environmental Protection Agency – EPA
- Food & Drug Administration – FDA
- National Highway and Traffic Safety Administration – NHTSA
- United States Department of Agriculture -- USDA
You also can get specific recall information from the websites of the six agencies.
Consumer product recalls
Consumer Product Safety Commission - CPSC
Cars and motor vehicles, tire, motor vehicle equipment, and child safety seat recalls
National Highway and Traffic Safety Administration – NHTSA
Boats and boating equipment safety alerts
United States Coast Guard
Foods, drugs, medical devices, biolotics (vaccines and blood products), animal feed and drugs, cosmetics, radiation-emitting products
Food & Drug Administration - FDA
Meat, poultry and processed egg recalls
United States Department of Agriculture - USDA
Emission related recalls
Environmental Protection Agency
Think you have a product liability case? Take these steps now.
If you think you may have a product liability case, you should take several steps immediately:
(1) Preserve the product intact, exactly as it was at the time you were injured.
(2) Do not settle the insurance part of the case yet. You need to examine all of the facts before you settle with some of the defendants.
(3) Contact a reputable lawyer with experience in this area immediately. Consider the Wallace Law Firm, L.L.C. Lee Wallace chaired the product liability section of the Georgia Bar. An honors graduate of Harvard Law School, she has nearly 20 years of experience with legal matters in 20 different states.
Has this product ever injured someone else? Links to find out
(workplace injuries only)
OSHA accident investigation files
Find out more about defective products.
Consumers Union (the publisher of Consumers Report)
ANSI (American National Standards Institute) standards
Federal recalls (page created jointly by six federal agencies -- Coast Guard; Consumer Product Safety Commission -- CPSC, Environmental Protection Agency – EPA; Food & Drug Administration – FDA; National Highway and Traffic Safety Administration – NHTSA; United States Department of Agriculture -- USDA)
http://www.recalls.gov/index.html
© 2007, Lee Tarte Wallace
The contents of this page: (a) should not be considered or relied upon as legal, financial or other professional advice in any manner whatsoever, and (b) may be considered advertising under some state’s Bar Rules. Unless otherwise stated, no article or text at this Internet site is, has been, or will be updated or revised for accuracy as statutory or case law changes following the date of first publication. Always consult with your lawyer and/or your other professional advisors before acting.
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