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Product
Liability
If a person is injured when a product is defective in
manufacture or construction, design or formulation, or is more dangerous than
expected, the manufacturer of that product may be liable for damages. Such
damages could include harm to the individual or other economic loss.
Below are some frequently asked questions regarding
product liability law that will hopefully provide you with some guidance when
determining whether you may have a proper claim against a manufacturer, supplier
or seller of a product that has injured you or someone you know.
Q: What is the law in Ohio that protects me if I
have been injured by a product?
A:
Claims of personal injury for product liability
in Ohio are governed by Ohio Revised Code Section 2307.71 through 2307.80 and
2315.20. A product liability claim is a claim in a civil action to recover
compensatory damages from a manufacturer or supplier for death, physical
injury to person, emotional distress, or physical damage to property other
than the product in question, arising from
- the design, formulation, production, construction,
creation, assembly, rebuilding, testing, or marketing of that product;
- any warning or instruction or lack of warning or
instruction associated with that product; or
- any failure of that product to conform to any
relevant representation or warranty.
Q: What type of evidence would I need in order to
prove that a product caused me injury?
A:
Obviously, the product itself provides the most
evidence as to whether something inherently wrong about that product caused
your injury. It could be that the product was manufactured incorrectly or that
it was designed incorrectly. It could also be that the warnings that
accompanied that product were inaccurate or incomplete. Oftentimes, an expert
witness must be retained by your attorneys in order to investigate the cause
of the product failure or whether the warnings were inadequate.
Second, you will need proof that your injuries or
economic loss were actually caused as a result of the product failure,
inadequate warning or other product defect. This will usually involve some
sort of personal injury for which you sought medical treatment. Medical
records, the testimony of your doctors, and sometimes expert medical testimony
may all be necessary to prove what your medical injuries are, and more
importantly, that those medical injuries were in fact caused due to some
problem with the product.
Third, you must have evidence of damages. Obviously, the
medical bills themselves will be some proof of the economic harm that has
resulted. Also, if you missed time from work, you may be able to collect lost
wages, both past and future. Other items of damage include out-of-pocket
expenses, future medical treatment, and damages sustained by your spouse or
other family members.
Q: Does Ohio Product Liability Law cover me if I
have used a prescription drug or medical device that I believe has caused me
injury?
A:
The answer is "yes". The manufacturer
of a prescription drug or of a medical device, for example, pacemakers,
implants, mechanical heart valves, etc., may be liable to you for damages that
you believe you sustained when those products caused you injury.
With regard to prescription drugs, the manufacturer
could have made the product incorrectly or designed the product improperly.
Improper product design could include a failure to provide adequate warnings
to your physician.
Q: Is my doctor liable if she prescribes a drug to
me which is defective?
A:
The law states that a pharmaceutical manufacturer
only has a duty to provide adequate warnings to your doctor, not to you. Then,
it is up to your doctor to determine, upon reading the information
accompanying the drug from the manufacturer, and any other relevant literature
regarding the drug, whether the benefit to you of administering that
particular drug outweighs the risks involved. If the doctor incorrectly makes
that determination, it could be that the doctor, not the pharmaceutical
manufacturer, is liable. However, if the manufacturer of that prescription
drug has failed to provide appropriate warnings, or they have manufactured or
designed the drug improperly, your doctor may not be liable. Oftentimes, both
your doctor and the manufacturer of the drug, along with other potential
defendants, will be sued with regard to a drug product liability case.
Q: Could my doctor also be sued if a medical device
causes me injury?
A:
If your doctor has used the wrong medical device,
or has improperly implanted or otherwise effected its use, he may be liable
for your damages. However, if your physician has used the device properly and
in accordance with all of the directions, risks and other warnings, it may be
that only the manufacturer is liable.
Q: What proof or evidence is necessary to show that
a drug or medical device caused me injury?
A:
The evidence necessary to show that a drug or
medical device has caused you injury is similar to that stated in answer to
Question No. 2 above. That is, you must first show that the drug or device was
manufactured improperly, designed improperly, or had improper warnings, among
other things. An expert witness, or in some cases, numerous expert witnesses
are needed to prove such liability.
Next, you will have to show that you were actually
injured as a result of the product failure. This may also require expert
testimony as well the testimony of your treating doctors, the medical records
relative to your injuries, and other documentation that may arise during the
course of the lawsuit.
Finally, you must show that the injuries that you
sustained as a result of the product failure or other problem with the product
has caused you damages. As mentioned above, these damages could include past
or future loss of wages, medical bills, injuries that you sustained as a
result of the product failure, future medical needs, emotional distress and
pain and suffering as a result of the injuries.
In certain limited situations, punitive damages may also
be available.
Q: If I believe that I was injured in Ohio as a
result of a defective product, how long do I have to file a lawsuit?
A:
The statute of limitations, or time period by
which you must file a product liability claim in Ohio is generally two (2)
years from the date you knew or reasonably should have known that the product
defect caused your injuries.
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