A large number of products and goods sold in the United States are manufactured abroad, or in different countries. An individual who is injured by a defective product that was manufactured by a foreign company can sue the foreign manufacturer. The case, however, may be difficult for several reasons, including:
- Jurisdiction;
- Service; and
- Cost.
A foreign corporation will likely argue that it is not subject to the jurisdiction of a United States court. Although the corporation will not likely prevail on this argument since they are doing business in the U.S. and subject to U.S. laws, the injured party will still spend time and money contesting the issue.
Service of process for a foreign corporation also presents some challenges. The requirements and procedures for serving a foreign corporation that is being sued are complicated. The foreign corporation may argue that service of process was not properly completed, which may cause serious delays or cause the lawsuit to be invalidated.
The cost of suing a foreign corporation may also be prohibitive. Filing this type of lawsuit can be very expensive. This is because it will likely involve expenses not incurred in a domestic lawsuit, such as:
- Long-distance phone calls;
- International mail; or
- International travel.
What is product liability?
Product liability is a legal term that refers to a manufacturer’s, retailer’s, or seller of a product’s liability when they permit a defective product to reach consumers, regardless of the consumer’s negligence. Product liability laws determine what party is responsible for dangerous or defective products. All parties in the distribution chain can be found liable for these defective products under the product liability theory.
Product liability laws and claims regarding those laws vary by jurisdiction. Commercial statues exist that model the Uniform Commercial Code (UCC), which contains warranty rules affecting product liability. These are usually modeled by each state.
What is a Defective Product?
A defective product is an unreasonably dangerous product when it is used for its intended purpose, without any alterations or interference. A defective product will cause injury to an individual because of a design defect, a manufacturing defect, or a marketing defect. Examples of common defective products include:
- A food item;
- A medical device; and
- A children’s toy.
What Is a Defective Product Injury?
If a defective product caused an individual’s injury, they may be able to recover damages for that injury. If an individual is injured by a defective product, they can sue the manufacturer of that product. They may also be able to sue a party that was responsible for repairing the product.
In addition, the injured individual may be able to sue the seller of the product. This can include wholesalers or distributors responsible for getting the product from the manufacturer to the retailer. These distributors may be liable even if the seller did not cause the defect.
An individual may bring a product liability claim under four different legal theories if they have been injured or suffered damages due to a defective product. These theories are:
- A breach of express warranty;
- A breach of implied warranty;
- Strict product liability; or
- Negligence.
A breach of express warranty occurs if a defective product violated an express warranty that the manufacturer guaranteed. This warranty is created by the manufacturer’s or seller’s overt words or actions. An express warranty may be created by:
- A promise about the product by the seller;
- The description of the product; or
- A model of the product.
Even when a product does not have an express warranty, it can come with implied warranties. An implied warranty does not have to be expressly written or guaranteed by the manufacturer. It warranties that the product will be fit for the purpose for which it was sold.
An implied warranty automatically applies when a seller offers a product for sale, even if the seller does not mention how the product will perform. The two common implied warranties are: 1) an implied warranty of merchantability; and, 2) an implied warranty of fitness for a particular use.
An implied warranty of merchantability guarantees that the product is fit to be used in a way that the product is supposed to be used. When a product is sold, an implied warranty of merchantability is a guarantee that:
- A product is fit and suitable and can be used for those ordinary purposes for which buyers would intend to use it;
- The quality of a product adequate; and
- A product conforms to the promises made by the manufacturer, typically found on the container or label.
An implied warranty of fitness for a particular use arises when the product is sold to an individual after they tell a seller they want to use the product in a specific way. By giving the requesting individual the product, a seller warranties that the product is fit for the use the individual had in mind. This warranty may apply in circumstances where:
- The seller knows the buyer will use the product or good for a particular purpose; and
- The seller knows that the buyer is relying on the seller’s expertise or knowledge about that product’s ability to be used in a certain way.
Under the legal theory of strict liability, a product defect occurs when an individual purchases a product that was defectively designed, manufactured, or had a lack of warnings, resulting in an injury to the purchaser. Under this theory, an individual may hold an individual or entity liable for damages or losses without proving intent or carelessness. This usually applies in circumstances where the product is inherently dangerous or hazardous.
Another type of defective product claim is negligence. Under this theory, a consumer is required to show that the defendant was not reasonably careful when they made or distributed the product and their carelessness caused the individual’s injury.
How Do I Win a Defective Product Injury Suit?
Courts will typically hold a defective product injury to strict liability. This means it does not matter what the producer intended or how careful they were. Even if an injury was caused by a latent defect, the producer will be liable for injuries caused by the product if the consumer used the product correctly.
The manufacturer is not on trial, the product is on trial. The injured consumer must prove the following elements in order to win a defective product injury case:
- The defect was in existence when the producer last had control over the product;
- The injured consumer used the product properly;
- The injury was caused by the product’s defect; and
- The injury is severe enough to warrant a recovery.
Do I Need a Lawyer if I Was Injured by a Foreign Defective Product?
Yes, if you or a loved one has been injured by a foreign defective product, it is important to seek the assistance of an experienced class action attorney. An attorney, also called a lawyer, will be able to assist you in determining if you have a claim and what parties may be liable for the injury. It is important to seek assistance as soon as you possibly can.
It is also important to keep the defective product or as much of the product as possible for evidence. An attorney can assist you in filing a lawsuit and represent you during any court proceedings, if necessary.
