Products Liability

Apportioning Fault in Maryland Strict Liability Cases

November 4, 2020 | Lebowitz & Mzhen

In Maryland injury cases based on a claim of strict liability, a defendant may claim that the plaintiff was also at fault for their injuries, raising the issue of contributory negligence. Maryland is among a small minority of states that follow the doctrine of contributory negligence, meaning that a plaintiff cannot recover if he is found to be even partially at fault.

Under Maryland law, contributory negligence of the consumer is not a defense in strict liability cases if the consumer’s negligence involves solely a failure to discover the product’s defect or to protect themselves from the possibility of such a defect. However, if the consumer’s contributory negligence concerns voluntarily and unreasonably confronting a known danger, that is a defense to strict liability.

Many other states apply the doctrine of comparative negligence, generally meaning that a plaintiff’s damages are reduced by his proportion of fault. In that case, a plaintiff could have his damages reduced by his portion of fault, even if a strict liability case. In a recent case before one state’s supreme court, the court upheld such an award. In that case, the plaintiff was seriously injured in a crash after the front brake on his motorcycle failed. He sued Suzuki, the manufacturer and designer of the motorcycle, claiming that his injuries were caused by a design defect in the front master brake cylinder. Suzuki had issued a recall warning about a safety defect in the front brake master cylinder, and reportedly had known about the issue since well before the plaintiff’s accident. However, the plaintiff failed to replace the brake fluid every two years, and he had not done so for eight years.

The Difference Between Direct and Proximate Cause in Maryland Accident Cases

September 28, 2020 | Lebowitz & Mzhen

In Maryland personal injury lawsuits, a plaintiff typically has to prove causation—that the defendant’s action (or failure to act) caused the accident and the plaintiff’s injuries. While this sounds straightforward, it can be incredibly complicated, especially as many courts consider two different types of causation necessary to win a case: direct and proximate causation. Direct causation is easier to understand—did the defendant’s action lead to the accident, such that but for the defendant’s action, the accident would not have happened? However, direct causation is not enough. Sometimes a defendant does something that directly leads to the accident, but the connection between the two is so disconnected that it is unfair to hold the defendant accountable.

For example, suppose that someone is hit by a car while riding their bike. They are uninjured, but their bike is totaled. Because of this, they have to ride the bus to work, and they slip and fall while exiting the bus hurting themselves. They might want to file a personal injury lawsuit against the driver of the car who originally hit them while they were on their bike, because absent that accident, they would not have been on the bus and then would not have been injured. However, in this case, the driver’s actions would not be the proximate cause of the plaintiff’s slip and fall injuries—the events are too separate from each other to hold the motorist responsible.

Recently, a state appellate court considered a slightly harder case on proximate causation. According to the court’s opinion, the plaintiff bought a cup of hot tea from Starbucks. When the drink was ready, she retrieved it from the store’s pick-up counter. The tea had a lid on it and was “double cupped”—the cup with the tea was placed inside a second empty cup. However, the plaintiff alleges that the cup was very hot, and that there wasn’t a sleeve around the outer cup. When she sat down, she removed the lid on her drink. While seated, she attempted to bend forward and take a sip from the open cup in front of her. While doing so, she tried to push the chair a bit, but it moved more than anticipated and lost her balance, grabbing onto the table and causing the drink to spill onto her thighs, burning her.

Damages Available in Maryland Product Liability Lawsuits

September 15, 2020 | Lebowitz & Mzhen

Maryland product liability lawsuits allow consumers to pursue a claim for compensation against the manufacturers, distributors, and resellers of hazardous products. A product liability suit filed against a responsible party may permit an injured plaintiff to recover a range of damages, and it is important for an accident victim to fully understand what may be available when determining the best course of action for their family.

The term damages refers to the financial compensation owed to an accident victim based on the other party’s wrongful conduct. In Maryland, damages are generally made up of compensatory damages, which are divided into two categories: economic and non-economic damages. Economic damages, also referred to as special damages, are damages that consist of a fixed dollar value, such as past and future medical bills, loss of income, transportation costs, and others. Non-economic damages, also referred to as general damages, are damages that do not have a fixed value, such as pain and suffering, loss of consortium, and mental anguish. Compensatory damages are meant to compensate the victim for their pain and losses. Generally, damages must be proven by a “preponderance of the evidence,” which means that it is more likely than not to be true.

Punitive damages are also available in some Maryland cases. For a punitive damages award under Maryland law, a plaintiff must establish that the defendant acted with knowing and deliberate wrongdoing. This must be proven by clear and convincing evidence. Punitive damages are generally reserved for cases involving egregious conduct, such as deliberately selling a defective product that the seller knew could cause physical harm without proper warnings. Punitive damages are meant to punish wrongful actors and to deter others from similar behavior. Statutory damages are also available in some cases based on mandates under the law.

Filing a Maryland Injury Claim Based on a Product Recall

August 13, 2020 | Lebowitz & Mzhen

A product recall is not a prerequisite to filing and winning a Maryland product liability claim. Yet, product recalls are often a precursor to litigation against the seller, because a recall is an indication that the product is not safe for its intended use. If a product is recalled because it is not safe for its intended use, the agency that called for a recall will offer a remedy for consumers affected by the recall. A consumer can still file a suit against the manufacturer, distributor, and often retailer of the unsafe product.

A government agency can suggest or require a company recall its product, but the company itself has to follow through and issue the recall itself. In some cases, an agency may issue a voluntary recall, and the offending company is left to decide whether to issue a recall. In other cases, an agency may issue a mandatory recall, and the offending company is required to issue a recall.

In a strict liability case, the plaintiff has to show in general that the defendant’s product was defective and that the defect caused the plaintiff’s injuries. Unlike in a negligence case, in a strict liability case the plaintiff does not need to show that the defendant was negligent in some way but rather focus on the defective product. In the case of a misrepresentation related to a product, a potential plaintiff may be able to recover damages if the plaintiff relied on the misrepresentation and is harmed by the misrepresentation. A product must also adequately warn about potential dangers and risks inherent in a product and provide consumers with information about the correct use of the product if necessary.

What Constitutes a Design Defect in a Maryland Product Liability Case?

July 28, 2020 | Lebowitz & Mzhen

Individuals pursuing a product liability case in Maryland courts can bring their claim under one or more of the three types of Maryland product liability claims: manufacturing defects, design defects, and warning defects. Under Maryland law, a design defect case considers whether a manufacturer knew the risks inherent in the product and unreasonably put the product on the market despite the risk. This may mean, for example, that a product malfunctions due to its design or that it lacked a reasonable safety device. A design defect focuses on the risks and benefits of the product’s design and on the specifications for constructing a product.

A recent case before another state’s appeals court considered whether a rat was a product under strict liability law. In that case, a 10-year-old boy purchased a rat from a Petco store. Two weeks after the 10-year-old purchased the rat, he fell ill. He was taken to the hospital and died shortly after he arrived. It was later revealed that the boy contracted a rare bacterial infection — rat bite fever (RBF) — from the rat he had purchased at Petco and he died from complications related to the infection. The boy’s father filed a claim against Petco, alleging in part that the store was strictly liable for his son’s death. The man argued that the rat was a defective product and that Petco was liable under a strict products liability theory.

The appeals court held that a live pet animal sold in its unaltered state was not a “product” subject to the design defect consumer expectations theory. According to the evidence presented at trial, 10 to 100 percent of wild rats carry the bacteria streptobacillus moniliformis, the bacteria that causes the infection in humans. The court stated that a rat carrying streptobacillus moniliformis is not in a diseased condition (which would be the defect in this case), because the infection that the boy developed is developed by some humans after exposure to streptobacillus moniliformis. Thus, the court reasoned that the rat could not be a defective product. It further explained that in a design defect case there must be a “design” of the product, and that in this case, pet rats living in their natural state are not “designed.” Therefore, the rat living in its unaltered state could not be a product subject to a design defect theory. The court also reasoned that the store could not have prevented the defect because the animal was living in its natural state free from disease. The court noted that, although it rejected the design defect claim, the plaintiff could file claims of negligence, negligent warning, and warning and manufacturing strict liability causes of action.

Maryland Product Liability Claims for Failing to Warn of a Product’s Risk

April 27, 2020 | Lebowitz & Mzhen

In highly regulated industries like the pharmaceutical industry, medicines typically undergo rigorous testing to ensure the safety of the drug before it goes on the market. But even drugs that have been on the market for years may later prove to be dangerous. Consumers that have been injured after taking a drug they believed to be safe may be entitled to compensation for their injuries through a Maryland product liability claim.

A “failure to warn” claim in Maryland is based on the contention that a defendant failed to adequately warn consumers of the risks involved with a product. In a claim involving a pharmaceutical drug, a manufacturer may be liable for failing to disclose the side effects of a drug or failing to disclose an unreasonably dangerous condition, for example. In general, a manufacturer is responsible for warning consumers of the risks of using a product, unless the risks are so obvious or well known that a warning is not required. Warnings must clear, direct, and easy to understand. Maryland courts will consider the knowledge and expertise of consumers in deciding whether a consumer can reasonably be expected to understand the risks of the product.

FDA Calls for Zantac to be Pulled From Market due to Probable Carcinogen

Proving Causation in Maryland Products Liability Cases

April 20, 2020 | Lebowitz & Mzhen

Proving causation in a Maryland negligence claim requires proving that the defendant’s negligent action was both a cause-in-fact on the plaintiff’s damages and a legally cognizable cause. This means that a plaintiff must show that the defendant’s actions were the actual cause and that the actions were sufficiently related and foreseeable. To prove the defendant’s actions were the cause-in-fact or “but-for” cause of the plaintiff’s damages, the defendant’s actions have to be proven to be the actual cause of the harm.

Maryland courts apply the “substantial factor test” when “two or more independent negligent acts bring about an injury.” Under the substantial factor test, the defendant’s conduct must be a substantial factor in bringing about the plaintiff’s damages. Therefore, there can be more than one cause of injury—but the defendant’s conduct has to be a substantial factor in causing the harm.

This theory can be applied in Maryland products liability cases. In asbestos cases, Maryland courts consider whether the plaintiff’s exposure to an asbestos-containing product was a substantial factor in the development of the plaintiff’s injury. Courts generally consider the frequency, proximity, and regularity of a plaintiff’s exposure to a product to determine causation in such cases.

Holding Companies Accountable for Their Defective Products Through a Maryland Product Liability Lawsuit

February 19, 2020 | Lebowitz & Mzhen

Anyone who has been injured by a defective product knows that holding the company accountable is an important step to make sure that other people do not suffer the same harm. In fact, filing a Maryland product liability case against the manufacturer is one of the most effective ways to hold the company responsible for manufacturing a defective product.

In a products liability case, there are generally three theories of recovery: negligence, breach of warranty, and strict liability. Under a strict liability theory of recovery, a plaintiff does not need to prove that the company acted carelessly in creating the product. A Maryland products liability claim requires that a plaintiff show, 1.) that the product was defective when it left the company’s control; 2.) that there was no substantial change in the product’s condition prior to its reaching the consumer; 3.) that the product was unreasonably dangerous; and 4.) that the product’s defect caused the victim’s injuries.

Even products that are not defective must also contain an adequate warning about the potential dangers of the product. A manufacturer must adequately disclose the risks and instruct consumers on the correct use of the product. Warnings and instructions about the product’s dangers and the correct use of the product must be clear, direct, and easy to understand. Courts will take into consideration the knowledge and expertise of the consumers that are reasonably expected to use the product. Damages available to plaintiffs in product liability cases include medical bills, the costs of future treatment, loss of income, mental anguish, and pain and suffering.

Watch Out Maryland! Around 200,000 Pounds of Eggs Recalled Due to Listeria Outbreak

January 28, 2020 | Lebowitz & Mzhen

When individuals eat, they expect the food to be healthy and safe for consumption. Unfortunately, contaminated food can make its way into grocery stores and restaurants without anyone realizing it until it is too late. For example, last month a large food company voluntarily recalled around 200,000 pounds of hard-boiled and peeled eggs after they were linked to a listeria outbreak. According to a prominent news source covering the recall, the outbreak affected five states, including Pennsylvania which borders Maryland. As a result, one individual died and four were hospitalized.

Officials from the Food and Drug Administration discovered listeria during a routine inspection of the food company’s facility. Listeria causes fever, diarrhea, nausea, headache, and stiffness, and typically those who eat contaminated food show symptoms one to four weeks afterward. The resulting illness can be severe, and sometimes deadly: about 260 people die from it each year, according to The Centers for Disease Control and Prevention.

When individuals get ill or suffer premature death as a result of eating contaminated food, a voluntary recall of the product is too little, too late. While the recall may prevent others from being harmed from the product, it does not help the victims and their families, who may have accumulated large medical expenses. However, Maryland law provides an avenue for these individuals to recover against the food company through civil suits. Those directly harmed and/or their families may be able to bring a negligence claim against the food manufacturer. To be successful in these claims, the plaintiff typically must show that the manufacturer had a duty to ensure that the food was safe, that the manufacturer breached their duty either through an act or an omission, that the manufacturer’s breach caused the plaintiff’s illness, and that the plaintiff suffered real damages as a result.

The Doctrine of Res Ipsa Loquitur in Maryland Accident Cases

January 6, 2020 | Lebowitz & Mzhen

In some personal injury cases, there is no direct evidence that a party was negligent, but there is also no other reasonable explanation for how the plaintiff’s injuries occurred. The doctrine of res ipsa loquitur applies in cases in which negligence can be inferred, based on the circumstances, but there is no direct evidence of negligence. Under Maryland law, res ipsa loquitur is available in accident cases if an injury or accident “is one which ordinarily would not occur without negligence on the part of the operator of the vehicle,” and “the facts are so clear and certain that the inference of negligence arises naturally.” Res ipsa loquitur allows a plaintiff to establish a prima facie case of negligence, without having direct evidence of negligence. The doctrine requires that a plaintiff show: (1) the accident was a type that does not normally occur absent negligence, (2) the accident was caused by an instrument exclusively in the defendant’s control, and (3) the accident was not caused by the plaintiff. In a recent case, a court considered the applicability of the doctrine of res ipsa loquitur after small metal fragments were discovered in a container of yogurt.

According to the court’s opinion, the plaintiff bought a small container of yogurt that was manufactured and packaged by Yoplait. The plaintiff claimed that she opened the container, stirred it, and began eating, when she felt a crunching sensation, which she found out were sharp metal fragments. She was taken to a hospital, where 17 metal fragments were removed from her stomach. She filed claims against Yoplait for negligence and negligence per se. A trial court found that the doctrine of res ipsa loquitur applied in this case because there was “an inference that the metal flakes were inserted . . . prior to the container being sealed.” But the trial judge found that Yoplait had rebutted the inference and dismissed the case.

The appeals court held that the judge should not have dismissed the case because if res ipsa loquitur applies, the case should go to a jury for a decision. The court explained that the doctrine warrants an inference of negligence, rather than a presumption of negligence. Therefore, the trial court should have allowed the jury to make a decision concerning Yoplait’s negligence and whether Yoplait overcame the inference of negligence. Accordingly, the appeals court sent the case back to the trial court for further proceedings. The court also noted that Yoplait failed to appeal the court’s ruling that res ipsa loquitur applied in the case, so it could not decide whether that decision was correct.