Defective Product Case History
Let’s just say that the year 2009 is one you would like to forget and it’s not over yet. It didn’t start out badly; in fact, back in January all was wonderful until your 2-year-old home began to reek of sulphur, a smell that lingered oppressively despite cleaning, ventilating and the use of various aroma enhancers and odor cover-ups. At about the same time, your five-year-old began having repeated nosebleeds, your husband’s asthma worsened and you began to be plagued by an inordinate number of headaches. When your relatively new air conditioner conked out several months later, you were beginning to feel cursed.
The HVAC repair man came as scheduled and after examining your unit, said, “You have marked corrosion in the coils which is unusual for a two-year-old A/C. Was you home built by WYZ Company by any chance?” You confirm that it was and then he says, “OK, what you know about Chinese drywall?” Looking positively dumfounded you ask, “What is Chinese drywall?”
You have since learned more than you ever wanted to know about Chinese drywall. It seems that many Florida homeowners are reporting similar issues and the suspected culprit is a product known as Chinese drywall (or wallboard) because it is manufactured in China. However, as luck would have it, the state and county health departments, the EPA and the builder have yet to conclude that it is, in fact, Chinese drywall that is corroding the plumbing pipes, A/C coils, and copper wiring in the affected homes or causing the health issues experienced by residents. A spokesperson for the local health department said that it was working with the U.S. Consumer Product Safety Commission and the Agency for Toxic Substances and Disease Registry to figure out what resources and expertise could be lent to the issue, but the declaration was far from an acknowledgment that Chinese drywall is, in fact, a defective product.
Meanwhile, the discovery made by your HVAC contractor and the possible health consequences of living with Chinese drywall so concerned you that you packed up your family and fled, moving in with your parents. Now you are at a loss for what to do next other than review the facts of your current dilemma.
It absolutely infuriates you to think that despite moving in with your parents, you have to continue paying a mortgage on your abandoned home, a home that can neither be lived in nor rented. You probably couldn’t even give it away. You can’t afford to buy another home, yet you can’t stay with your parents much longer. You have toyed with the idea of not paying your mortgage, even though you know that would probably be the wrong thing to do. Still, you wonder if the bank would foreclose on a home that is toxic. Renting a very small place would get you out of your parents’ hair, but can you manage both rent and mortgage payments simultaneously? Not for long without having to dip into your savings. What happens when your savings are gone? Where will you live then? Will you have to declare bankruptcy? What about your credit rating and your hope of ever buying another home?
Looking forward, your future seems to hold nothing more than questions without answers and mounting financial worries. You feel victimized and that makes you angry. You are mired in a swamp of “what ifs.” You feel defeated, discouraged and helpless and your predicament is consuming all your time and energy. Your constant worrying is affecting your children who are cranky most of the time and the youngest is acting out in school. Clarity of thought is non-existent and the term, marital strain, has taken on new meaning.
Your ever-patient father suggests dealing with one issue at a time and proposes a plan that focuses on four main issues.
The first issue is the unhealthy house. The Chinese drywall will need to be replaced and there may also be damage to electrical wires and plumbing pipes. He suggests you contact several contractors for estimates. You do as directed, only to discover what you already suspected: the repairs will be costly.
Next you call your home insurer and file a claim for the cost of the repairs, hoping against hope that at least some of the repairs may be covered.
While you wait for an answer from your home insurer, you work on your third issue, your mortgage, thinking that under the circumstances the bank might be willing to work out a lower payment plan for the number of months it takes to repair your home. Perhaps you could even get a second low interest, home improvement loan with which to offset the expense of a temporary rental, affording you the relief of removing your family from your parents’ home. You hope that the bank’s position will be a cooperative one. Surely the liability to the bank of selling a toxic home after foreclosure will force it to make repairs first—the same repairs that you are offering to undertake and pay for. Common sense tells you that it is to everyone’s advantage to simply reduce, temporarily, the monthly mortgage payments.
The fourth prong of your self-defense plan is to contact a products liability lawyer. You want an expert’s opinion on whether the builder or the manufacturer of the defective product could be held responsible for some of your expenses. In preparation for your appointment you make a list of general questions to ask the attorney:
* Are you a member of the American Bar Association?
* How long have you been practicing law?
* Where did you go to law school?
* Do you specialize in products liability cases?
* How many products liability cases have you handled?
* How many cases have you settled out of court (pre-trial)?
* How many cases have you brought to trial? What percentage had favorable verdicts?
* What is the average amount recovered for your clients in pre-trial settlements?
* What is the average amount recovered for your clients by trial?
You still have no idea how things will work out, but the simple act of being proactive instead of passive has restored your hope and your determination to seek a satisfactory remedy. You are eager to hear what the attorney has to say.
Why Call a Products Liability Lawyer?
If you think the story just told is make-believe, you are wrong. It is a true story and the events just described are similar to what is currently being experienced by many homeowners in Florida and in other states across the country.
Can you imagine the unexpected expenses that our real family is incurring: replacing the Chinese drywall used throughout their 3000 square foot house, rewiring electrical outlets, repairing corroded plumbing, replacing A/C parts, interest payments on the home improvement loan that is financing the renovation, rental fees and doctor’s bills? There will certainly be other unwanted expenses for this family as renovation commences and time elapses.
Even if a suit goes forward, how do you put a price on their inconvenience and emotional anguish? They have been forced to move twice, first to the parental home then to a rental, and the children have attended 3 different schools in as many months. Tightening the budget to meet necessary expenses resulted in the discontinuation of one child’s music lessons and the other child’s first year of school was nothing short of a disaster; he missed his friends and the teacher to whom he had had grown accustomed.
Given all they have suffered, does it seem fair to you that this family is also responsible for the expenses they have incurred because of the use of a defective product in the construction of their home? As their debt mounts and their savings dwindle, clearly they should be entitled to some relief. Will they be compensated for their losses? Only time will tell, but they are wise to consult a products liability lawyer experienced in defective product litigation.
What is Products Liability Law?
The usual subjects of products liability suits are defective products that cause harm to a consumer. Products liability law holds all parties to the manufacture of a defective product accountable for damage caused by the product. “Parties” is a term that refers to the manufacturer of component parts, an assembling manufacturer like a car company, the wholesaler and the retailer, the entire chain of parties involved from manufacture to sale. The definition of “products” within products liability law has expanded over the years from referring solely to tangible products to a definition that includes intangibles like gas, so-called naturals such as pets, real estate and writings like charts or maps.
Claims in products liability law fall into one of three categories: (1) negligence (2) breach of warranty and (3) strict liability.
Negligence – Negligence as defined in Black’s Law Dictionary (5th Edition) “is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under the circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Conduct which falls below the standard established by law for the protection of others is unreasonable risk of harm; it is a departure from the conduct expected of a reasonably prudent person under like circumstances.” An example would be using a known toxic material in place of a safe material in the manufacture of a building product simply because the cost was lower.
Breach of Warranty – A breach of warranty can be one of two types, merchantability or fitness.
The first type, a breach of merchantability, occurs when the unspoken and unwritten guarantee, otherwise known as an implied warranty, between a merchant and a consumer is violated. The implied warranty here is that the goods being sold and purchased conform to the ordinary standards of care and are similar to other goods sold in similar circumstances in grade, quality and value. The discovery of someone else’s tooth in your hamburger may be cause for a claim of breach of merchantability.
The second type, a breach of fitness, is also based on the notion of implied warranty. A breach of fitness occurs when there is a violation of the implied warranty between a buyer who purchases goods for a particular, non-ordinary purpose and a seller who possesses particular knowledge and expertise on which the buyer relies. An example often cited is that of a horse buyer who, after explaining to the seller that he wants a horse to breed, purchases the horse only to discover that the horse is incapable of breeding. When this case was presented in court, the court ruled in favor of the buyer stating that because the intended use of the horse was non-ordinary and because the seller was made aware of the purpose of the purchase in advance of the sale, the buyer was entitled to a warranty of fitness (Whitehouse v. Lange, 128 Idaho 129, 910 P.2d 801 ).
Both types, the warranty of merchantability and the warranty of fitness, are subject to particular rules of circumstance and interpretation which can vary from state to state. The Uniform Commercial Code (UCC), a group of general and inclusive laws designed to promote uniformity and fair dealing in business and commercial transactions, is used as a determinant in most states, but not all states abide by every part of the code. Once again, the complexities involved in deciding what even constitutes a warranty in products liability law underline the need for the advice of counsel.
Strict liability – Strict liability claims are the basis for most liability suits because proof that a product is defective is enough to hold a defendant liable. It doesn’t matter that the manufacturer or supplier exercised great care. No amount of carefulness will reverse a defect in a product that causes harm or thereby save a defendant from liability.
Despite the differences between states in applying products liability law, one standard is uniform to all claims and that is the burden of proving that a product is defective. In the law, a “defect” is generally defined as a lack of safety that the product should ordinarily provide given the nature of the product and the foreseeable, ordinary manner in which it is intended to be used. As in all things legal, there is further elaboration on the meaning of the words (such as “safety,” “nature of the product” and “foreseeable manner of use”) in the definition itself, but the point is, the product must be proven defective by particular and complex criteria.
There are three types of product defects:
(1) design defects,
(2) manufacturing defects
(3) defects in marketing.
Design defects are inherent defects that exist, obviously, before the product is manufactured. Even if the product serves the purpose for which it is meant, it can still be unreasonably dangerous to use because of the existence of the design flaw. A design defect is one that is present in all products of the same kind. The Ford Pinto that was manufactured in the 60’s is an example of a design defect, one that caused the gas tanks of the cars to explode easily in rear-end collisions.
A manufacturing defect is one that occurs during the contruction or production of a product. Unlike a design defect, only a few of the products among many of the same type will be somehow flawed. An example would be a faulty brake line in one out of every 50 cars of the same type.
The third type of defect, a marketing defect, refers to produts that are associated with such things as improper instructions or lack of failure to warn consumers of latent dangers. An example is an imported lamp that does not come with a label of maximum wattage.
In products liability law, damages may be awarded to a plaintiff if a consumer is injured by a defective product. The damages awarded may be compensatory or punitive. Compensatory damages compensate plaintiffs for their losses and are awarded to cover the cost of such things as medical bills, lost wages or property damage arising from the use of the defective product. If the plaintiff suffered considerable physical and/or mental anguish as a result of the injury, they may also be awarded compensation for their pain and suffering.
Punitive damages are sometimes awarded to plaintiffs to punish the defendant for negligence in manufacturing a seriously dangerous product. The point of punitive damages in general is to deter the manufacture, marketing and selling of defective products. The finding of guilt or fault on the part of a particular defendant is a complex process bound by very specific requirements; consequently not every case warrants punitive damages.
Statute of Limitations
Product liability lawsuits like other civil suits, must be filed in court within a specified period of time. These strict filing deadlines are imposed by courts across the country and set forth in a statute of limitations (which vary from state to state) that establishes the maximum period of time after the occurrence of a specific event that a legal proceeding based on those events may be heard. The theory behind the statute is the generally accepted belief that as time passes evidence may be destroyed or lost and witnesses may die, move or forget. Deadlines are written in stone, so to speak: Delay your planned lawsuit beyond the deadline and your case, no matter its merit, will never be heard.
Let’s return to our real family in the case history. Interestingly, they no longer feel alone in their plight because lawsuits over this particular type of wallboard are flying in Florida, not just from homeowners, but from builders as well.
The word is also out to attorneys who are in various stages of gathering evidence, filing suits and waiting for court dates. A class action suit has already been filed by homeowners in Ft. Myers and another suit is pending in Sarasota.
Testing companies have cropped up hoping to make money from home owners who want their homes tested for toxicity and contractors are preparing to get in on the spoils by tagging company ads with labels like, Chinese Wallboard Removal Specialists or Experts in Toxic Drywall Removal.
The WYZ Company who built some of the homes in question has filed suit in Miami-Dade Circuit Court against eight drywall suppliers and a dozen subcontractors who installed the defective wallboard. A spokesperson for WYZ stated that one particular supplier “either knew or should have known that this drywall was defective and not appropriate for use in homes.” WYZ is seeking compensation for damage to the builder’s reputation and all the costs associated with the issue. Apparently the builder will have some hefty expenses because he has offered to replace all of the defective wallboard installed in his homes free of charge and in our real family’s case, the builder will reimburse them for the expenses they have already incurred in removing the wallboard.
As it turns out, our story has a happy ending. With the support and direction of their products liability attorney, our family has every reason to expect that they will be compensated for their losses and that their lives will soon return to normal.
About The Author
Pat Perkins is a copywriter for Yodle Local, a business directory and online advertising company. Find more lawyers tips and info at local.yodle.com/articles. Product Liability Lawyers Put Your health and Safety FirstMail this post