Damages Are Assessed in a Defective Product Case

Damages in a defective product case are assessed based on the extent and severity of your injuries. The manufacturer or distributor’s level of negligence can also play a role when determining the value of your damages and overall settlement. A product liability attorney can help you evaluate your damages and pursue fair compensation.

What Is a Defective Product?

Before they can be sold in the U.S., all products must undergo industry-specific testing and evaluation to ensure product safety. When a product injures someone due to a design defect, manufacturing defect, or marketing error, the injured party can pursue compensation in a product liability lawsuit. 

Design Defect

A design defect occurs when a product’s fundamental design poses a danger to consumers. The defect may be related to the materials used, mechanical function, component placement, or other design features. With a design defect, a person using the product can be injured even if they use the product as intended. For example, a hernia mesh implant that causes allergic reactions in patients could be considered a design defect because the mesh manufacturer failed to use hypoallergenic materials. 

Manufacturing Defect

Unlike design defects, manufacturing defects are unintended errors in the manufacturing process that alter the final product. Manufacturing defects can occur at any stage of the manufacturing process, from component manufacturing to final product assembly. An example of a manufacturing defect is furniture manufactured using incorrect fasteners like screws, nuts, and bolts. Incorrect fasteners create an unstable structure that can collapse and injure users. 

Marketing Defect

A marketing defect can include a failure to warn of known hazards associated with the product. Marketing defects also occur when the product does not provide adequate instructions for use or when the product is marketed for something other than its intended use. If a drug manufacturer sells an acid reducer that can cause kidney damage, they could be liable for a marketing defect if they fail to warn users of the potential for kidney damage.

Product Defects and Mass Torts Claims

Defective product lawsuits are used to hold manufacturers and distributors accountable and secure financial recovery for the injured parties. If enough people file lawsuits for injuries due to the same defective product, the cases may be consolidated into a mass tort or class action lawsuit. When plaintiffs file individual lawsuits, the resulting consolidation is called multidistrict litigation (MDL). 

MDLs for defective products are increasingly common as standards testing and oversight improve. In fact, consumers file thousands of injury lawsuits every year for defects in household appliances, automobile components, dangerous drugs, personal care products, and medical devices. A mass tort lawsuit attorney who specializes in product liability claims can help you determine which legal options are best for your situation.

How Damages Are Assessed in a Defective Product Case

If you were injured by a defective product, you can join an existing mass tort lawsuit or file an individual product liability claim. A defective product lawsuit attorney can help you understand your legal rights and determine which damages apply to your case. 

Compensatory damages are used to restore you to the condition you enjoyed before you were injured by a defective product. To assess the value of your damages, your attorney establishes a dollar value for all the losses you experienced. 

Damages you can pursue in a product defect claim include:

  • Lost income due to your product defect injuries
  • Hospital bills, surgery, medication, and medical devices for your product defect injury
  • Treatment for your product defect injuries, including physiotherapy, psychological therapy, and in-home nursing care
  • Pain and suffering, both physical and psychological, associated with your product defect injuries

By assessing the damages associated with your case, the product liability attorney for mass tort lawsuits can place a financial value on your claim. This allows you to determine whether your losses are sufficient to pursue a product defect lawsuit and estimate how much you could receive.

Product Defects and Recalls

Product defect lawsuits often arise after a product has been recalled by a government organization. For household products, that agency is the Consumer Product Safety Commission (CPSC). For pharmaceuticals, food, beverages, and other consumable products, the U.S. Food and Drug Administration (FDA) handles regulation and oversight. 

When the responsible agency becomes aware of a defect, they investigate the product for standards violations. Depending on the extent and severity of the defect, they may:

  • Send a notification to the manufacturer or distributor with instructions for correcting the defect
  • Recall certain defective products from the market
  • Ban products from the market that cannot be rendered safe for consumers

It is important to note that a product does not have to be recalled for you to file a product defect lawsuit. In fact, some manufacturers will not recall a defective product until multiple complaints, warnings, and legal actions force them to do so. 

Recent Defective Product Cases in Multidistrict Litigation

Most products these days are mass-produced. This means that one manufacturer can create and distribute thousands or even millions of defective products. Mass tort lawsuits against defective products allow the courts to address many similar cases at once. The approach has proven effective in holding large companies accountable for defective products. Recent MDLs for product defects include:

Hernia Mesh Defects

Hernia mesh implants are extremely common in mass tort cases. Recent hernia mesh MDL suits include: 

  • MDL 2753: Atrium Medical Corp. C-Qur Mesh Product Liability
  • MDL 2846: Davol Inc. / C.R. Bard Polypropylene Hernia Mesh Product Liability
  • MDL 2782: Ethicon Physiomesh Flexible Composite Hernia Mesh Product Liability

Complaints allege that the materials and designs for these hernia mesh products were not properly tested for potential side effects. The meshes cause a variety of adverse events, including hernia reoccurrence, inflammation, infection, pain, tissue adhesion, bowel obstruction, perforation, and other complications.

As of November 2022, MDL 2846 against C.R. Bard has not settled. The court has scheduled bellwether trials for 2023. MDL 2753 and 2782 against Atrium and Ethicon have reached settlement agreements for undisclosed amounts. 

3M Combat Arms Earplug Defects

Manufacturer 3M faces a massive mass tort product liability case with over 230,000 active legal claims under MDL 2885. The manufacturer contracted with the U.S. military to provide hearing protection for members of the military. 3M’s Combat Arms Earplugs did not work as advertised, and thousands of military members suffered severe hearing loss, tinnitus, and deafness as a result. 

3M claims that liability for the faulty design and manufacture of their Combat Arms Earplugs lies with their subsidiary Aearo Technologies LLC. Since Aearo has filed for bankruptcy, it seems 3M hopes to discharge its product liability through bankruptcy to reduce its financial losses. 

3M’s request was denied by a bankruptcy court, but they filed an appeal in September 2022. The outcome of the bankruptcy appeal will set a precedent for other companies who try to discharge their liability for defective products in bankruptcy.

Johnson & Johnson Talc Product Defects

Since 2009, Johnson & Johnson has faced ongoing lawsuits from consumers who claim they contracted cancer due to asbestos in their talcum products. The complaints allege that Johnson & Johnson was aware that asbestos was present in their talcum products as early as the 1970s. 

Rather than acting to protect consumers, J&J continued to manufacture and market their talc products without any health warnings. In fact, they did not remove their products from the market until 2019 when the FDA reported asbestos contamination in multiple J&J products. 

The most recent mass tort product defect case against J&J, MDL 2738, is still ongoing. Talks are temporarily on hold while J&J pursues bankruptcy. The result of the 3M/Aearo bankruptcy case above may affect how J&J proceeds with settlements for this and future MDLs.

ELMIRON® Defective Drug Claims

Drug manufacturer Janssen Pharmaceuticals faces hundreds of lawsuits under MDL 2973 for the defective drug Elmiron. The drug has been widely prescribed since 1996 as a treatment for interstitial cystitis (IC). A 2018 study revealed that patients suffered vision loss and blindness due to pigmentary maculopathy, a syndrome specifically tied to Elmiron use. (Ophthalmology)

While the FDA did require Janssen Pharmaceuticals to update its warning labels in 2020 to include the risk of pigmentary retinopathy, the drug is still widely prescribed. Claims against Janssen Pharmaceuticals state that the company was aware or should reasonably have been aware of the risks associated with Elmiron and that they failed to warn consumers of those risks. The case is ongoing, and bellwether trials are scheduled to begin in January 2023.

Proton Pump Inhibitors Defects

Drug manufacturers face multiple allegations under MDL 2789 for kidney injuries caused by proton pump inhibitors (PPIs) used to reduce stomach acid. Long-term Prilosec, Nexium, Protonix, Dexilant, and Prevacid users faced higher instances of strokes, kidney injury, acute interstitial nephritis (AIN), kidney disease, kidney failure, bone fractures, and other complications.

Lawsuits allege that the manufacturers of PPI products failed to warn users of these serious side effects. In fact, specific complaints against AstraZeneca suggest that the pharmaceutical company knew of the potential risks a full decade before they added warnings to their labels and packaging. 

Bellwether trials for MDL 2789 begin in March 2023.

Philips CPAP Machine Defects

In June 2021, Philips Respironics recalled numerous CPAP, BiPAP, and ventilator machines due to concerns about defective sound attenuation foam. (FDA) The polyester-based polyurethane (PE-PUR) foam tended to break down during regular usage. Particles and harmful off-gassing chemicals could be swallowed or inhaled by the user, causing severe injury. 

As of November 2022, lawsuits across the country had been consolidated under MDL 3014. A November 2022 update by the FDA reports more than 90,000 adverse event reports related to Philips CPAP devices since April 2021, in addition to 260 reported deaths. The MDL is still in pre-trial proceedings. 

How a Defective Product Lawsuit Attorney Can Help Assess Your Damages

When you have suffered injuries because of a product manufacturer’s negligence, you deserve fair compensation for your losses. A mass tort lawsuit attorney who handles defective product claims can help you pursue accountability and monetary damages.

When you work with a defective product lawsuit attorney for your mass tort lawsuit, you gain the experience and resources necessary to face some of the largest companies in the world. A defective product lawsuit lawyer can:

Establish the Value of Your Product Defect Injuries

Product defect injuries differ depending on the product type and the extent of your injuries. A defective product attorney with experience handling product defect mass tort cases will know which damages you can pursue. They will use their extensive knowledge and resources to determine the full value of your losses, including both economic and non-economic losses.  

Compile Evidence to Support Your Damage Assessment

Your product defect mass tort lawyer will know how to substantiate your claim for damages. They will obtain documentation to support their assessment of your damages, including medical bills, pay stubs, treatment plans, and medical records. They may also request expert testimony from a doctor, therapist, or economic expert to prove the extent and severity of your physical and psychological damages.

Defend Your Right to Maximum Damage Compensation

A knowledgeable mass torts lawyer will recognize the tactics product manufacturers use to absolve themselves of blame after a product defect injury. For example, the company may imply that the injuries were due to user error or that they were not aware of the risks associated with their product. Your attorney will leverage their considerable knowledge and resources to prove your case and defend your right to a financial recovery. 

Requesting a Damage Assessment For Your Product Defect Case

Whether you became ill from a dangerous drug or were injured by a poorly designed product, you have a right to monetary recovery for your losses. To learn more about how damages are assessed in a product defect lawsuit, you can contact a mass torts attorney in your area for a free consultation. Fill out a contact form on our website to get connected with a lawyer in our network.