Articles Posted in Defective Products

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After three opinions from the Nevada Supreme Court, a case involving a motor vehicle accident that resulted in multiple deaths and injuries finally appears to have come to a close, but not without setting some significant precedents.

In Bahena v. Goodyear Tire & Rubber Company, the plaintiffs were family members and friends who were traveling together in a single vehicle when the left rear tire of the vehicle, manufactured by Goodyear, separated from the vehicle. The event caused the vehicle to roll over multiple times, killing three people, and injuring seven other passengers. The injuries included a closed-head injury to a teenage boy, sending him into a persistent vegetative state.
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Recently, a Las Vegas, Nevada woman was killed in a single-car accident when her Dodge pickup rolled over. According to the Las Vegas Metropolitan Police Report, the car accident appears to have occurred when the driver lost control while speeding. Though many may consider the case open and shut, in any car accident it is smart to have the car checked out for defects.

A car is considered a dangerous product. A consumer is required to use a dangerous product in a reasonable and foreseeable manner. If after doing so a consumer is then injured by the dangerous product, the dangerous product is considered defective. The consumer can then sue the manufacturers and distributors of the dangerous product. This is called a product liability lawsuit.

Generally, a defect in a dangerous product can be traced to one or more of three stages: 1) the design stage, 2) the manufacturing stage, and 3) the notice stage (when the consumer receives instructions or warnings about the product).

A design defect is a fundamental flaw in the dangerous product that makes using the product unsafe, even if the consumer uses it in the intended or a foreseeable manner. With a manufacturing defect, despite being properly designed or enacting adequate quality controls, the product is still built with a flaw. But even if the product is properly designed and manufactured, a product is defective if the manufacturer and/or distributors do not give the consumer adequate instructions on how to properly use the product or disclose unobvious dangers in the product.

State law typically governs product liability cases. However, state law can be preempted by federal law in certain situations. Under Nevada law, manufacturers and distributors face strict liability for product defects. This means that a consumer that is injured only has to prove the defective product caused the injury. That the manufacturer or distributor did nothing wrong, was not at fault, is not a defense to being liable for the injuries that occurred.
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When dozens of runners from the Las Vegas “Rock and Roll” marathon posted on the event’s Facebook page how they fell ill during and after the marathon, Southern Nevada Health District swooped in. Fecal samples from several runners were tested to determine if the runners had a gastrointestinal illness, the stomach flu, or some other disease. Over 800 of the marathon participants then were required to fill out an online health survey for the Health District. Competitor Group, the marathon sponsor, also began an investigation into its water distribution process, which included water stored in plastic lined garbage cans, and is used for all its marathons, after several runners questioned whether this process was the cause of their illnesses.

With millions of visitors each year and thousands of restaurants and food services, Las Vegas takes food safety seriously. Whether from running in a restaurant or dining at an eatery, if you believe you have suffered a case of food poisoning you need to know what to do.

Food poisoning symptoms can include nausea, vomiting, diarrhea, fever, and abdominal cramps or pain. Symptoms may begin immediately, within a few hours, or even days or weeks after eating the potentially contaminated food. Symptoms may last for a few hours to a day or even longer. When the symptoms are severe or include blood in the stool, continuous fever, trouble swallowing or speaking, vision issues, or muscle weakness, you should immediately seek medical attention. If your medical practitioner does not contact the health department, make sure you contact your local department to fill out a report so your potential case can be investigated and to also stop others from becoming ill.

Food poisoning disputes are usually based on a product liability assertion that the food was defective and the defect in the food caused injury. Under Nevada law, which is followed in Las Vegas, the three product liability assertions are strict product liability, negligence, and breach of warranty. If the food poisoning causes a fatality, affected families may also have a wrongful death lawsuit. Food poisoning disputes based on product liability must be brought within four years of the date on which the injury occurred. A Nevada wrongful death action must be filed within 2 years of the date of death.

Regardless of which cause of action is pursued, proving you have suffered food poisoning is a challenge because of the time delay between when the food was eaten and when one becomes ill, or seriously enough ill to visit a medical practitioner. If the food that is alleged to have caused the poisoning is not available for testing, lab tests on the individual must be done to show there is some type of bacteria, virus, or parasite present in the body. Generally, anyone involved in the food’s chain of distribution from processing to the ultimate seller may be responsible for damages.
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Food poisoning can not only cause significant injury, and in some severe cases even death, it can also put a major financial burden on victims in terms of lost wages, medical costs, and other expenses. According to the CDC, though, only a small number of food poisoning cases are reported. Of the cases reported, however, “norovirus was the most common agent and salmonella was the second most.” While poultry, beef, and fish are often the top three culprits, food poisoning can also occur from contaminated fruits and vegetables, and any products using any of these food items.

Food contamination can occur in the harvest, sanitation, preparation, or storage processes. According to the Nevada Department of Health and Human Services Health Division the 5 major risk factors that contribute to food borne illnesses are improper handling temperatures, inadequate cooking, contaminated equipment, food from unsafe sources, and poor personal hygiene.

If you believe you have suffered from a food poisoning injury, it is important to consult a Nevada attorney as soon as possible to protect your rights. A Nevada attorney specialized in food safety issues will review your case, contact the proper health authorities to prevent further outbreaks, ensure you receive adequate health care, and file a case against anyone who may be the cause of the food defect.

In Nevada, food poisoning cases generally fall under a product liability assertion – strict product liability, negligence, or breach of warranty. Under strict product liability, once it is proven that the food product was defective and that the defective product caused injury, the manufacturer or supplier is liable. That the manufacturer or supplier exercised sufficient care to ensure the safety of the food is not a defense to strict product liability.

In addition to alleging strict product liability, food poisoning victims can also bring a cause of action against a manufacturer or supplier on the basis that the manufacturer or supplier was negligent (did not take enough care or perform enough safety procedures) over the food product to ensure the food product was not contaminated, that such lack of care caused the food to be contaminated, that the contamination caused injury, and there are damages. Though Nevada has not adopted a specific test in determining the manufacturer’s or supplier’s negligence the standard of proof is that the manufacturer or supplier failed to exercise “reasonable care.”

Breach of warranty occurs in a food poisoning case when an express or implied warranty from the manufacturer or supplier that the food product is fit for consumption is violated.

If a victim dies from food poisoning, a wrongful death suit may also be brought by the victim’s family and/or loved ones. If it can be shown that a large group of people became ill from a food defect, the victims may join together and file a class action lawsuit.
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Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

If a product is sold in Nevada, it is automatically subject to numerous laws and regulations. Some of these apply to the manufacturer of the product, and fall into responsibilities that must be met in order to sell the product. Manufacturers are responsible for their products under what is called the law of product liability.

This branch of law implicates all entities that were involved with the manufacture and retail sale of the product. The damages caused by a dangerous product can be recovered upon sustained claims of negligence, strict liability, or breach of warranty. Each one of these claims can help earn those who have been harmed.

In Nevada, negligence claims require that a plaintiff prove that (1) there was a duty and responsibility owed by the defendant to the plaintiff or public (2) breach of that duty, (3) causation and (4) the damages that occurred are linked causally to the alleged negligent act.

Strict liability means that the manufacturer of a product is liable if the product was defective in nature. This claim allows for plaintiffs to receive compensation if an action was not negligent, but a product was still dangerous.

Some products have expressly written warranties that are regulated by the Magnuson-Moss Warranty Act (15 U.S.C. §§ 2301 et seq.). This act was primarily targeted for car warranties, but can be applied to all expressly given warranties.
However, there are also implied warranties, which include claims of: implied warranties of merchantability, and implied warranties of fitness.

An implied warranty of merchantability protects a consumer from a product that is below the standard of merchantability; this means that goods must be of the same average quality that is to be expected of similar goods in similar circumstances. Goods must be acceptable for their ordinary purpose, and a seller establishes this implied warranty when (1) the seller is the merchant for the product (2) the buyer uses the product for its ordinary purpose.

Implied warranty of fitness prevents a seller from knowingly selling a product unfit for the intended use of the buyer. To establish an implied warranty of fitness claim it must be proved that (1) the seller has reason to know the buyer’s intended purpose for the product (2) the seller must know of the dependence the buyer has upon the seller’s experience and expertise to sell the appropriate good (3) the buyer when making a decision to purchase the good must, actually, be reliant upon the seller’s experience and expertise. Some exclusions exist to this particular implied warranty, including: instances where a buyer has more knowledge of the product than the seller, or when an entire brand of goods is specified.
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Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

Guns have played a significant role in establishing peace through force since they were first invented. Law officers and the military have come to rely upon them through our modern era. However, not every confrontation requires the use of a handgun, and efforts have been focused to producing weapons that are nonlethal. The most common form of these weapons has been Tasers, and pepper spray. These weapons are intended to offer a safer alternative to the destructive power of guns. However, with any weapon used against someone, there is always a potential for inflicting unintended pain, or death. A verdict of $10,000,000 has been awarded against Taser International to the family of a teenage boy who died at the hands of a “nonlethal” weapon.

The boy had been working at a store, when he entered into an argument with the store manager. The store manager instructed him to leave, and unwilling to cooperate, began throwing displays upon the ground and shouting. When a police officer arrived the boy did not stop his disruption, and the officer wielded his Taser. Next, the officer began to stun the boy with thousands of volts of electricity, for a period of no less than 37 seconds, according to video footage.

An autopsy revealed that the boy’s heart had stopped functioning correctly, and was not pumping blood normally. It also revealed that this was due to the shock, the boy was experiencing from prolonged exposure to the Taser. During the case of the trial, Taser International tried to make claims that this was a result of a preexisting heart condition, but the autopsy found no evidence of this.

The family of the boy filed a wrongful death claim against Taser International and the city of Charlotte. The police officer that was responsible for killing the boy had not followed proper procedure for using his Taser. This resulted in new classes and training, being administered to all police officers in the appropriate use of a Taser.

Taser International was convicted by a jury for not warning those who use Tasers about the dangers of placing a Taser on the chest. For its defense Taser International claimed that studies revealed no increase of danger by placing a Taser on the chest. This, however, seemed to be in direct conflict with the findings of the autopsy report.

While nonlethal forms of keeping the peace can offer better solutions to guns, we must be sure they are in fact nonlethal. Carrying a weapon, that can cause death if used incorrectly, is effectively allowing people to be killed for minor infractions of the law. It is handing out a death sentence for shop lifting, disturbing the peace, or similar misdemeanors. Nonlethal weapons are required to meet a standard of safety, which was not met in this case. No family should have to suffer a loss like this.

Full information the story can be found here: Teen’s family wins $10 million Taser verdict
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Safety is of the utmost importance with every product anyone buys. American citizens have the right to purchase a product and use it reasonably within its means and not worry about death or dismemberment. In fact to establish a system contrary to this right would invariably lead to a society constantly suffering injury.

It is this right which is so strongly believed and upheld that on June 7, 2011 $30 million was awarded to a plaintiff who was injured in a disturbing boating accident. The amount was awarded by a Butte County jury who were able to not only sympathize with the plaintiff but understood the importance their award. This award acts not only as a means of compensation but also as a deterrent to other companies from making similar mistakes.

The public requires the company whom the ruling was issued against, MasterCraft Boat Co., to be held to the same standards as any individual; which is that they are not allowed to take actions that kill or mutilate anyone.

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A 23-year old man was significantly injured while working in a grain bin in Kansas. The man who was cleaning out the bin had his foot caught in a conveyor and was pulled into the machine. His injuries were to the point that his leg could not be saved and he lost it.

The plaintiff’s lawsuit cites employer negligence and defective product as causes to the accident. The suit argues that the machine’s design placed the conveyor drag chain in a hazardous location and the maker was liable. They also go on to state that the employer did not offer adequate training in safety.

The manufacturer of the machine said that the employer did not turn off the machine while workers were working and the employer was liable. However it was determined by a jury that the plaintiff was 10% at fault, the employer 44% and the manufacturer was 46%. The total amount given to the plaintiff was $1.6 million for medical expenses, future medical expenses, lost earnings and lost wages.

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A Las Vegas lawsuit alleges a girl died after participating in religious rights in July 2010 and now her mother is filling suit against The Moment of Truth Ministries Inc.

The church is charged with wrongful death, negligence and product liability. The suit claims the girl had intended to fast for religious reasons and was given a pill containing dangerous substances by the Ministry. Later that day the girl passed away.

The church denies responsibility for the death citing the girl’s preexisting medical conditions. Further, the church argues that the fast was unrelated to the church and that they did not give the girl any substance. The church says they are grieving the girl’s death too and that the victim’s mother is being influenced to file the suit.

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Regulations are designed to protect children from defective products and hazardous toys. The regulations are enforced administratively and in the justice system. Laws like The Child Safety Protection Act and The Federal Hazardous Substance Act require choking hazard labels and ban substances that contain hazardous materials, but regulators don’t always have enough resources to police these enormous consumer markets. Dangerous toys make it to store shelves and, sometimes, it may be too late before the product can be recalled. That is when the justice system has to step in and hold manufacturers liable.

Design problems and unsafe toys can lead to fatal injuries including drowning, suffocation, motor vehicle incidents and strangulation. Each year approximately 217,000 toy-related injuries are treated in hospital emergency rooms. Manufacturers should be held accountable for defective products, negligence, failure to warn and even misconduct.

To read more about this subject, click here: Unforeseen Hazards Contribute to Toy-Related Injuries. Websites like the U.S. Consumer Product Safety Commission (www.cpsc.gov) and www.Recalls.gov can also be a great resource.