Articles Tagged with Defective Products

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lightningTim Kerin, a homeowner in Florida, had an outdoor fire pit equipped with gas.  Gastite CSST is used in home and commercial structures throughout the country in order to provide gas.  Mr. Kerin brought suit against Titeflex Corporation for an alleged product defect in Gastite corrugated stainless steel tubing.  In essence, the complaint alleges that there is a severe risk of CSST being vulnerable to failure after lightning strikes.

The suit, which was originally filed in federal court in Massachusetts, was dismissed due to lack of standing.  As we previously discussed, the justiciability requirement of standing requires an individual to have a concrete injury prior to bringing a suit.  The court dismissed Mr. Kerin’s injury as being speculative.  Mr. Kerin, on appeal, argues that lightning strikes can cause an electrical arc that punctures CSST which can ignite the natural gas contained within it.  Additionally, he argued that the CSST’s risks are well established and that experts have recommended several possible remedies for the problem including outright removal.

Mr. Kerin alleged four caused of action predicated on Massachusetts law against the manufacturer- based on the notion of CSST’s susceptibility to lightning strikes:  “strict liability for design and manufacturing defects, negligence in design[ing] and failing to test the product, negligence in failure to warn, and strict liability in failure to warn.”  It should be noted that Mr. Kerin did not plead, nor did he claim, that the susceptibility of his own CSST to lightning strikes has manifested in any actual, tangible, harm.  However, in an effort to circumvent and prevent and future harm- he is seeking damages for the cost of remedying the issue.

The district court in dismissing the case believed that the standing requirement could not be met because it was currently subject to too much conjecture.  The court held that ‘injury’ was too attenuated as it would take a lightning strike and a puncturing of the CSST to result in the sort of harm that is necessary to maintain a suit.  Additionally, the court concluded that even if there was standing, Kerin failed to state a claim because he failed to allege an applicable standard of care “as required to claim economic injury from a defective product under Massachusetts law.” Continue reading →

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helmetA seventeen year old boy was gearing up for the fourth quarter of a football game when he ran to the field and got ready for the play that would change his life.  The quarterback snapped the ball and the seventeen year old boy was involved in a helmet to helmet collision that knocked him unconscious immediately.  The boy, now a 21 year old man, was left partially paralyzed and without his short term memory.  Even after extensive physical therapy and occupational rehab, he relies on the assistance of a cane and is susceptible to seizures in any given moment as a result.  A lawsuit was filed against the manufacturer of the helmet, alleging an unsafe and/or defective design of the helmet pad, which was the alleged cause of the heartbreaking tragedy suffered by the young football player.

Similar cases have been filed against manufacturers of helmets across the country with factual situations like the above referenced case in California.  In Massachusetts, a case was recently filed against Riddell, Inc., the same manufacturer alleged with creating a defective helmet in the California case above.  The complaint, filed in Massachusetts, alleges that Riddell, Inc.’s failure to design the helmets to design and manufacturing specifications resulted in the following: Continue reading →

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medicationsIn the past few years, more and more litigation has ensued concerning pharmaceutical drugs and the potential hazards associated with those medications.  In a typical situation, a consumer has been prescribed a certain medication and after taking the recommended dosage (by the prescribing physician), the consumer develops some side effect that was omitted from the warning.  As a result, the consumer brings suit against the drug’s manufacturer alleging a cause of action predicated on negligence.  The consumer must show that the potential Defendant had a drug that it put into the stream of commerce, that there was a negligent design due to the manufacturer’s omission of a meaningful warning, that had the consumer been made aware of the warning he or she would have avoided the product, and that the consumer has been harmed as a result.

With the growing cost of prescriptions, generic drug manufacturers have stepped up to offer alternatives to the high price of name brand drugs.  Name brand drugs carry a cachet associated with their usage due to the rigorous testing and studies their drugs go through in order to get approval from the Food and Drug Administration (FDA).  After this testing is complete, and the beneficial effects of the drugs are substantiated, the drugs are allowed to be placed on the market for direct buy or prescription.  Generic drug manufacturers can circumvent the costly testing process by showing the FDA that they have drugs that are the bio-equivalent of the already approved name brand drug.  In addition to showing bio-equivalence (meaning that the substance of the pills are identical), the generic drug manufacturer must agree to have the same label information- including the same warnings. Continue reading →

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brokenness-1-656297-mUnder products liability law in Massachusetts, a consumer has the ability to pursue a variety of claims against a manufacturer, distributor, store owner, and/or any other organization that puts a defective product into the stream of commerce. Normally, a claim for products liability is also referred to as a “breach of warranty” claim under the Uniform Commercial Code. Warranties come in two flavors: express and implied.

An express warranty arises from any affirmation, fact, or promise made by the seller to the buyer that relates to the goods. Under the Uniform Commercial Code, express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise;

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

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