Back to Basics: A Product Liability Primer

FJA Journal

October 31, 2022

By Poorad Razavi

I have frequently written and spoken about the many nuances of advancing a product liability claim, as well as a variety of strategic tactics to employ in order to advance a mature case theory. As a 15-year veteran product defect attorney, these are naturally the topics that appeal to me. However, as a young attorney, or an attorney generally unfamiliar with the intricacies of product liability, discussing these topics is akin to coaching someone to land a plane without ever discussing how to take off in the first place. And as the downtime of the pandemic has granted me the capacity to renew my love of learning about astrophysics, I have come to accept that somewhere in the dimensional multiverse is a version of me who is also new to the field of complex torts and product defects, and he or she needs to have resources containing the fundamentals as well. This article is written for him or her.

What Is Product Liability?

Product liability, in the context of this publication, is a claim rooted in the defectiveness surrounding the design, manufacture, and/or warning of a product that has caused a tortious harm to an individual.

A design defect means that the actual intended iteration of the product is such that its foreseeable use is dangerous to the user and/or public at large. Examples would include Takata airbags or asbestos-lined construction materials, which are (arguably) defective from inception. Florida continues to recognize the “consumer expectations” test as well as the risk/utility test in defining a design defect. Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015). “A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer] [and] [or] [the risk of danger in the design outweighs the benefits].” Fla. Std. Jury Instr. (Civil) 403.7b.

A manufacturing defect is where an otherwise (presumably) safe product is made unsafe due to errors during the actual manufacturing/construction of the product. An example of this would include the recent recall for specific batches of Similac baby formulas that were found to have harmful contaminants introduced during the manufacturing stage.

A warning defect is where the nonobvious dangers of a product are not adequately conveyed to the user and/or public at large. Examples of this include warnings about pharmaceutical drug contraindications or about the dangers of using an infant car seat as a sleeping device outside of a vehicle.

Read the complete “Back to Basics: A Product Liability Primer” article in the September/October 2022 issue of the Florida Justice Association Journal.