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You’ve spent your hard-earned money on a product, and you have a right to expect it to be safe. But that doesn’t always happen. The Federal Consumer Products Safety Commission (“CPSC”), which analyzes product injury data, estimates that approximately 3 million consumers are injured by consumer products each year, and over 20,000 die from dangerous or defective products. The products in question range from retail products such as baby cribs to batteries to children’s toys to ATVs. Medical devices and drugs are included in these numbers as well.
In Ohio, consumers are protected from injuries caused by defective or dangerous products by a law known as The Ohio Products Liability Act. Ohio Rev. Code § 2307.71 – 2307.80. This law contains several legal theories under which an injured consumer may recover damages from a manufacturer or supplier of a product. These include:
- defects in manufacture or construction,
- defects in design, and
- failure to provide sufficient warnings.
If a consumer can prove her case, she may recover damages for death, physical injuries, out-of-pocket costs, and emotional distress. A key feature of Ohio’s product liability law is that a person who suffers harm need not prove negligence, because the negligence is presumed and the result is absolute responsibility (“strict liability”) on the seller, distributor, and manufacturer.
Defects in Manufacture or Construction
A consumer may file a product liability claim to recover damages from a manufacturer or supplier if the consumer can prove defects in the manufacture or construction of the product.
Ohio Rev. Code § 2307.74. Generally, these cases are relatively straightforward and require a showing that the product in question deviated in a significant way from its manufacturer’s design specifications, formula, or performance standards.
An example of a manufacturing defect would be car tires that, when manufactured according to specifications, meet industry standards and are safe to use. The tires support the weight of a vehicle and are difficult to puncture. However, let’s assume that during the manufacturing process, contaminants tainted the adhesive glue which binds the tire treads, resulting in a blowout and serious accident from tread separation. In this case, if a claimant can prove that the deviation from the proper manufacturing process caused the accident, the claimant will have made a showing of a manufacturing defect.
Defects in Design
A product is defective in design or formulation if, at the time it left the control of its manufacturer, the foreseeable risks associated with its design or formulation exceeded the benefits associated with that design or formulation. Ohio Rev. Code § 2307.75
Common design defect cases involve injuries suffered on all-terrain vehicles (“ATVs”). In many cases, riders are seriously injured even though they wear safety gear, have proper training, and keep their ATVs well maintained. Many plaintiffs have prevailed over the years in arguing that ATVs suffer from design flaws, such as being inherently unstable due to their high center of gravity and having overly powerful engines.
Another commonly litigated design defect category is baby cribs. Despite tougher regulatory standards adopted by the Consumer Product Safety Commission over the past decade (16 CFR Parts 1508 and 1509), babies continue to be harmed by cribs that have failed hardware, are decorated with lead paint, or have slats separating from headboards. Defectively designed cribs have resulted in strangulation, head entrapment, suffocation, choking, falling, and lacerations.
Failure to Warn
A manufacturer’s duty to warn is codified in Ohio Rev. Code §2307.76. A product is defective due to inadequate warnings if:
- the manufacturer knew, or in the exercise of ordinary care should have known, of the risk or hazard about which it failed to warn, and
- a reasonable manufacturer would have issued warnings in presenting the product to the public.
In the consumer products area, there are currently over 25,000 lawsuits pending against Johnson & Johnson, Colgate-Palmolive, and others alleging that these baby powder manufacturers were aware that talc, an ingredient in the baby powder, was contaminated by asbestos but failed to warn consumers. Asbestos is a known carcinogen, and plaintiffs in these lawsuits allege they are suffering from various cancers, particularly ovarian cancer from using the baby powder in the perineal area over the course of years, and lung cancer through inadvertent inhalation of the products.
It’s important to note, however, that there are often contradictory studies in the drug and medical device areas. For example, in January 2020, a study published in the Journal of the American Medical Association (“JAMA””) found no significant link between the use of powder in the genital area and risk of ovarian cancer among women.
Many product liability lawsuits involving drugs are also based on the failure of the manufacturer to sufficiently warn of side effects. One example is Ohio men who were among the plaintiffs in a lawsuit against several companies that marketed testosterone replacement drugs. They claimed that the hormone gel caused them to suffer lung embolisms, blood clots, and strokes. The basis for liability against the drug manufacturers was their failure to warn of these serious side effects.
Medical devices, which are covered by the Ohio Products Liability Law, range from simple tongue depressors and bedpans to complex programmable pacemakers. Many product liability lawsuits involve the failure of medical device manufacturers to sufficiently warn of the risks of surgically implanted devices, such as hip replacement implants and hernia meshes. The risks of medical implants may include infection and implant failure.
Bringing a Products Liability Claim
If you believe you have been injured by a product, you have two years to file a lawsuit. Ohio Rev. Code § 2305.10. Generally, this means two years after the date of injury. But in many cases, such as with implanted medical devices or talcum powder, you won’t know the date of injury. In this case, Ohio law says that the two-year period will begin to run on the date that the plaintiff received a diagnosis of a medical condition caused by a defective product.
If you prevail in your products liability lawsuit, Ohio does not limit the amount of compensation you can recover for economic damages, such as medical bills and lost wages. However, the state does limit non-economic compensation such as pain and suffering.
Products liability is an extremely complex area of personal injury law. Consumers who have been injured by dangerous and defective products are urged to contact a lawyer who can evaluate the facts, and if merited, build a case on their behalf. Consumers often join forces in class actions or multidistrict litigation when they have suffered similar types of harm from the same product. If they succeed in showing liability, they may be able to recover substantial amounts of damages.