November 25, 2004

Devries Column

Some obstacles to overcome with a product liability suit

This week’s question:
I am rather curious as to what is needed to prove a case against a manufacturer, seller, or distributor for a defective product. I have been following the Merck Vioxx recall case with some interest and I was wondering what is involved in a lawsuit like that in general.

Angelica A.
Almaden Valley

Dear Angelica:
One of the first things you might want to look at is the seriousness of the injuries, since product liability suits and negligence suits in general require rather significant injuries to justify the huge cost involved in preparing the suit for court.

Your attorney may be required to advance rather large sums of money for expert witnesses, testing, discovery, and other aspects of the case. And often the defendant(s) take these claims rather seriously since their company’s very existence and reputation are at stake. They often spare no money when it comes to fighting such suits.

Sometimes there are very serious injuries, like stroke, heart attack or death. Let us assume for the sake of discussion that there are serious injuries of some kind. What is the next issue?

One of the next issues you may wonder about is just how can you prove your case. One way to prove a case is by the doctrine of strict liability, based upon a product that is defective in manufacture or design or possibly because the product did not have sufficient warnings connected with it concerning potential safety hazards.

Judges often utilize common jury instructions in product liability suits, such as CACI 1203. It provides that plaintiff claims the product’s design was defective because the product did not perform as safely as an ordinary consumer would have expected it to perform. To establish this claim, plaintiff must prove all of the following:

- That defendant manufactured, distributed or sold the product;
- That, at the time of the use, the product was substantially the same as when it left defendant’s possession;
- That the product did not perform as safely as an ordinary consumer would have expected at the time of use;
- That the product was used in a way that was reasonably foreseeable to the defendant;
- That plaintiff was harmed; and
- That the product’s design (or manufacture) was a substantial factor in causing plaintiff’s harm.

The next issue might be just how one proves liability for the defective product. In such cases, it often turns out to be a battle of the expert witnesses.

How does a jury look at expert witnesses? The trial judge may instruct the jury according to CACI 219 that provides:

“During the trial you have heard testimony from expert witnesses. The law allows an expert to state opinions about matters in his or her field of expertise even if he or she has not witnessed any of the events involved in the trial.

“You do not have to accept an expert’s opinion. As with any other witness, it is up to you to decide whether you believe the expert’s testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert’s testimony. In deciding whether to believe an expert’s testimony, you should consider:

- The expert’s training and experience;
- The facts the expert relied on; and
- The reasons for the expert’s opinion.”

Those are some of the highlights of a product liability suit, Angelica, some of the obstacles you would need to overcome. I hope this is useful information for you. Of course, consultation with your own attorney is essential.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408)268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, DeVries will not disclose your identity or any details about your situation. Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.