Consumer Products Litigation: What Makes a Product Defective

Strict liability eliminates the plaintiff's obligation to prove that the manufacturer acted unreasonably, requiring only proof that the product was defective and that the defect caused the injury, while negligence requires proof of both a defect and an unreasonable failure by the manufacturer to discover or correct it.

The practical difference between strict liability and negligence is most significant in design defect cases. Under negligence, the plaintiff must demonstrate that the manufacturer knew or should have known the design created an unreasonable risk and failed to take reasonable precautions. Under strict liability, the plaintiff need only show that the design was unreasonably dangerous, which can be established through the risk-utility test or the consumer expectations test without proving what the manufacturer knew or should have known at the time of design.

Breach of implied warranty is a third theory available in consumer products cases that holds sellers liable when a product is not fit for its ordinary purpose, regardless of fault or the seller's representations about the product. The warranty theory is particularly useful when the plaintiff is a remote purchaser who did not directly deal with the manufacturer, as most states allow warranty claims by any foreseeable user of the product.

Courts apply two distinct tests for design defect claims, and which test governs in a specific case often determines whether the plaintiff can reach the jury and what evidence will be most influential with that jury.

The risk-utility test, adopted by the Restatement (Third) of Torts: Products Liability, asks whether the foreseeable risks of harm from the design could have been reduced by a reasonable alternative design at a reasonable cost, weighing the magnitude of the risk, the costs of the alternative design, the utility of the product, and the ability of the consumer to avoid the risk through informed use. A product design survives the risk-utility test when no reasonable alternative would have meaningfully reduced the risk, or when the cost of the alternative would have made the product economically nonviable.

The consumer expectations test, retained by some states alongside or instead of the risk-utility test, asks whether the product was more dangerous than an ordinary consumer would expect given its intended use. The consumer expectations test can produce liability without proof of a reasonable alternative design when the product failed in a way that defied consumer expectations, which is particularly useful for cases involving catastrophic failures that speak for themselves. An attorney who handles defective products and design defect litigation matters can evaluate which test applies in the relevant jurisdiction and structure the evidence presentation accordingly.

A product recall by the manufacturer or ordered by the CPSC does not immunize the manufacturer from civil liability for injuries caused before the recall and does not necessarily eliminate liability for injuries caused after the recall when consumers did not receive adequate notice. The CPSC's mandatory recall reporting requirements under 15 U.S.C. § 2064(b) require manufacturers to report to the Commission within 24 hours of obtaining information that reasonably supports a conclusion that a product contains a defect which creates a substantial product hazard. Failure to report timely is itself a separate statutory violation carrying civil penalties up to $15 million per series of violations.

A Daubert motion challenges the admissibility of the opposing party's expert testimony before trial, and a successful Daubert challenge can eliminate the scientific foundation of either the plaintiff's defect claim or the defendant's safety defense before the jury ever hears the evidence.

A plaintiff's causation expert who opines that a specific product defect caused the plaintiff's specific injury must satisfy Daubert's reliability requirements by applying a methodology that is generally accepted in the relevant scientific community, that has been subjected to peer review and publication, and that has a known or knowable error rate. An expert who relies primarily on the post hoc ergo propter hoc reasoning that the plaintiff used the product and was then injured, without a scientifically rigorous analysis of alternative causes, is vulnerable to Daubert exclusion regardless of the expert's credentials.

A defendant's expert who opines that the product met applicable safety standards and that no reasonable alternative design would have prevented the injury must similarly satisfy the reliability requirements, including demonstrating that the alternative design analysis is based on engineering principles rather than unsupported assumptions. An attorney who handles consumer product injuries and expert-intensive litigation matters can evaluate the opposing party's expert reports for Daubert vulnerability and retain qualified experts whose methodology will withstand the trial court's gatekeeping review.

Punitive damages in consumer products cases are available when the manufacturer's conduct was egregious, typically defined as conscious disregard of a known risk of serious harm to consumers. Evidence that a manufacturer received reports of similar injuries, conducted internal analyses identifying the risk, and continued selling the product without modification or enhanced warning is the most common predicate for a punitive damages award. The Supreme Court's guidance in BMW of North America, Inc. .. Gore, 517 U.S. 559 (1996), and State Farm Mutual Automobile Insurance Co. .. Campbell, 538 U.S. 408 (2003), limits punitive damages to single-digit multiples of compensatory damages in most cases, though higher ratios remain available when the conduct was particularly reprehensible and the compensatory award was small relative to the harm.

Consumer products litigation questions come from injured consumers who are not sure whether they have a claim, from manufacturers who received a complaint about a product injury, and from retailers who sold a product that harmed a customer and want to understand their exposure. Those three situations generate the same set of threshold questions, answered here.

Consumer products litigation is a category of civil tort claims against any commercial seller in the distribution chain of a product that caused physical injury due to a manufacturing defect, design defect, or inadequate warning. Potentially liable defendants include the manufacturer, the component parts supplier, the distributor, the importer, and the retailer who made the final sale to the consumer. Most states impose strict liability on all commercial sellers in the chain, meaning a retailer who had no knowledge of the defect and took no action to create it is nonetheless liable for injuries the defective product caused.

A manufacturing defect is a flaw in a specific product unit that occurred during production, causing that unit to deviate from the manufacturer's intended and otherwise safe design. Only the defective unit, not the entire product line, presents the defect. A design defect is a flaw in the product's design itself, meaning every unit produced according to that design shares the same dangerous characteristic. Design defect claims require proof that a reasonable alternative design existed that would have reduced the risk at a reasonable cost, while manufacturing defect claims require only proof that the specific unit deviated from the intended design.

No. A product recall does not provide immunity from civil liability for injuries caused before the recall or for injuries caused after the recall when consumers did not receive adequate notice of the defect and the remedy. Evidence of a recall is admissible in litigation and can be used by plaintiffs to establish that the manufacturer had notice of the defect and that the defect was serious enough to warrant a recall. A recall that is conducted promptly, reaches affected consumers effectively, and is accompanied by adequate instructions can support a defense of reasonable post-market conduct, but it does not eliminate liability for the harm the defective product caused. An attorney who handles defective product litigation matters can evaluate how a specific recall affects the damages calculation and the liability analysis.

A failure-to-warn claim applies when a product that was properly manufactured and reasonably designed caused injury because the warnings or instructions provided with it were inadequate to alert foreseeable users of the risks associated with the product's use. The claim does not require that the product be defective in its physical design or construction; it requires only that the risk was foreseeable, that an adequate warning would have prevented the injury, and that the warning provided was insufficient to communicate the risk to a reasonable user. The heeding presumption, adopted in many states, presumes that an adequate warning would have been followed by the consumer, shifting the burden to the defendant to prove the consumer would have ignored it.

Yes, in most states. The strict product liability doctrine holds all commercial sellers in the distribution chain liable for defective products regardless of fault. A retailer who sold a product exactly as received from the manufacturer, without any modification or contribution to the defect, is nonetheless strictly liable for injuries the product causes. Retailers who face liability for a manufacturer's defect typically have indemnification rights against the manufacturer under contract or state law, but those rights do not eliminate the retailer's direct liability to the injured consumer. An attorney who handles products liability defense matters can evaluate the indemnification agreement and the retailer's direct exposure simultaneously.

Punitive damages in consumer products cases require proof that the manufacturer acted with conscious disregard of a known substantial risk of serious harm to consumers. The most common factual predicate is evidence that the manufacturer received reports of similar injuries before the plaintiff's accident, conducted internal analysis identifying the defect, and continued selling the product without modification or improved warnings. The Supreme Court has held in BMW of North America, Inc. .. Gore, 517 U.S. 559 (1996), that punitive damages must bear a reasonable relationship to compensatory damages, with single-digit multipliers serving as the general guideline in most cases. An attorney who handles consumer protection litigation and product liability matters can evaluate whether the specific facts support a punitive damages claim and how to structure the evidence to satisfy the constitutional limits.