Articles Posted in Product Liability

It is not unusual for one or more of the defendants in a South Carolina product liability lawsuit to seek federal bankruptcy protection. This is especially true if a particular product has been accused of causing numerous serious personal injuries or wrongful death.

The effects of the bankruptcy can vary, depending upon the particular situation at hand. In some cases, a bankruptcy can effectively terminate a pending state court lawsuit, forcing the litigant(s) to pursue their claim along with other creditors in the bankruptcy case.

Facts of the Case

In a recent South Carolina Court of Appeals case, the plaintiffs were the mother and guardian ad litem of a five-year-old child who allegedly suffered severe burn injuries during the November 2010 explosion of a portable gasoline container manufactured by one defendant and sold by the other. The plaintiffs’ filed respective lawsuits against the defendants, the maker and a retail seller of the container, in Hampton County Circuit Court in November 2013, asserting claims for product liability, strict liability, breach of warranty, and negligence. (The suits were later consolidated.)

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South Carolina product liability lawsuits can arise from many different types of products – automobiles, prescription medications, and household goods, just to name a few. Sometimes, manufacturers issue recalls for certain products once they have knowledge of possible defects or dangerous proclivities.

Although not every product that is the subject of litigation is recalled (and, likewise, not every recalled product ends up being the focus of mass tort litigation), it is important that individuals and families stay abreast of recall information in order to avoid as many potentially dangerous products as possible.

Where to Look for Recall Information

The federal government maintains a website with links to pages listing recalls in several different categories: consumer products; foods, medicines, and cosmetics; meat and poultry products; motor vehicles; child safety seats; tires; and boats and boating safety. This website represents the efforts of several different federal regulatory agencies, each of which has the responsibility to provide the public with the latest recall information with regard to a certain type of product.

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Attorneys who practice law in the area of personal injury and wrongful death are often concerned about the timing of a lawsuit, and rightfully so. Claims not filed within the statute of limitations and statute of repose are usually dismissed by the courts.

However, the timing of a lawsuit is not the only consideration in such cases. For example, in a South Carolina product liability lawsuit, there may also be a question of where to file suit. Sometimes, there is only one possible court in which to file a claim, but sometimes multiple courts arguably have jurisdiction.

Sometimes, even after a plaintiff has filed his or her suit, there is a chance that jurisdiction may be changed – at the defendant’s request. While not every defendant has a right to remove a case to another court, there are some circumstances in which this is possible.

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South Carolina product liability lawsuits can be complicated. Not only must the plaintiff prove the elements of negligence, strict liability, or another legal theory of liability, but he or she must also track down the manufacturer, seller, or another party that can be held responsible for the plaintiff’s injuries under South Carolina law – before the running of the statute of limitations (and statute of repose).

Given the frequency with which businesses change hands nowadays, this can be a difficult task. Products made in other countries can present additional issues.

Facts of the Case

Product liability claims can involve multiple theories of liability by the plaintiff – and also a variety of possible defenses by the manufacturer, wholesaler, or seller against which the plaintiff’s claims are made.

Recently, the state’s highest court was asked by a federal district court to answer certain certified questions of state law in a product liability lawsuit filed by a victim of a fiery crash in Greenville County, South Carolina, that occurred in November 2012.

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Mesothelioma is a type of cancer that is caused by exposure to asbestos. Generally speaking, the more a person is exposed to asbestos, the greater his or her risk of developing the disease will be. In most cases, it takes several years (sometimes even decades) after the initial exposure for the disease to manifest itself.

Although there is treatment available for mesothelioma, the majority of patients who are diagnosed with the disease will eventually die from it. Symptoms of mesothelioma typically include pain in the chest wall, shortness of breath, fluid around the lungs, fatigue, wheezing, or blood in the sputum.

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When a particular product is unreasonably dangerous or defective, a person who is injured thereby has a legal right to file a product liability lawsuit against the manufacturer, wholesaler, seller, or others in the product’s chain of distribution. Possible damages in such a lawsuit include medical expenses, lost wages, pain and suffering, and loss of consortium.

Common legal theories in product liability lawsuits include strict product liability, negligence, design defects, manufacturing defects, marketing defects (such as failure to warn), and breach of warranty. In response to a product liability claim, a defendant may assert various defenses, including a plaintiff’s alleged alteration of the product or misuse of the product.

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Product liability cases can involve many different theories of liability. Typically, the issues in the case are narrowed during the litigation process, with only some claims actually being tried. It is therefore crucially important for a trial court to properly instruct the jury on the issues presented at trial.

In the recent case of Lawing v. Univar, USA, Inc., the plaintiff worked as a maintenance mechanic at a plant that produced a precious metal catalyst used in the automobile industry and refined metals from recycled materials. The mechanic’s employer purchased sodium bromate, an oxidizer needed in the refining process, from the defendant manufacturer (who sourced the product from another defendant, who obtained it from a facility in China through its subsidiary, also a defendant in the case).

In June 2004, a fire broke out in the plant, injuring the plaintiff. He brought a product liability lawsuit against the defendants, claiming that their packaging and labeling of the sodium bromate contributed to the fire. The trial court granted summary judgment to the defendants on the plaintiff’s strict liability claim, but the court of appeals reversed the trial court’s decision.

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Yet another verdict for the male users of Risperdal as a Philadelphia jury ordered the drug manufacturer, Johnson and Johnson to pay twenty-one (21) year old Nicholas Murray 1.75 Million Dollars. Murray alleged that the use of Risperdal caused him to develop large breasts. Murray had alleged that Janssen Pharmaceuticals, one of J&J’s subsidiaries, failed to adequately warn patients and doctors of the risk of Risperdal, including a condition known as gynecomastia which is a condition causing boys to grow excessive breast tissue.

There are over 1500 cases pending in Pennsylvania State Court alone regarding Risperdal. This case is the third to have a jury verdict. In February of this year, a Philadelphia Jury awarded 2.5 Million Dollars in damages in another such case.

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It is unsettlingly common these days to hear of a large recall of cars, trucks, or SUVs, often as part of a settlement agreement between the manufacturer of the vehicles and the federal government as a result of findings that certain product defects have resulted in numerous injuries and deaths.

Recalls, unfortunately, do little if anything to compensate those whose lives have been shattered by defective or dangerous products. To do that, the injured party or the family of a deceased consumer must file a product liability lawsuit against the maker, wholesaler, or retail seller of the vehicle. Unfortunately, such cases may take years to reach trial and even longer to make their way through the appellate process.

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