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Defective Product FAQs

What is a defective product case?

A “defective product case” is one where a person alleges they were injured because a product was defective.  This includes defective automotive components, like defective tires, defective airbags, defective seatbelts or other defective components.  Defective products cases also include defective medical devices and defective drugs.

The common theme in a defective product case is that there is something about the product that caused an injury, as opposed to how it was used or how someone acted, like in a typical negligence case.    Product liability cases can allege three broad categories of defects – design defects, manufacturing defects, and marketing defects.  A design defect case is one where the Plaintiff alleges that the product was designed in a way that made it unreasonably dangerous (like it did not have a safety feature it should have had).  A manufacturing defect claim alleges that the product may have been designed correctly, but it was not built to the design specifications. For example, the product was supposed to have a safety feature but it accidentally got left off when the product was built.  A marketing defect claim is one where the product may have been designed correctly and manufactured correctly but the seller did not warn of all of the dangers.   

All product liability cases are strict liability, which means it does not matter if someone was at fault for the defect in the product.  All that matters is whether the product was defective somehow when it entered the stream of commerce.  

Product liability law is extremely complicated.  If you live in Texas, you want the best defective product lawyer in Texas.  The law in each state is different and you want an experienced defective product lawyer to represent you in your case.  The Merman Law Firm is experienced with all types of defective product cases, including defective drug injuries, bad tire accidents, faulty airbags, defective seatbelts and defective car accidents.  We have recovered tens of millions of dollars for our defective product clients.   

I had a wreck and my airbags did not come out, do I have a defective airbag case?

The short answer is “maybe, let me take a look at your car and I can tell you for sure.”  The long answer is a little more complicated, but since this issue comes up so often, it is definitely worth getting into here.  

Airbags are designed to deploy only when deploying would help prevent an injury.  You would not want your front airbag to deploy if you were hit from the side because it wouldn’t do any good and might do some harm - those airbags come out fast with a lot of force.  To make sure that your airbag only comes out when you need it, a vehicle is equipped with sensors and a gyroscope that feed information to your car’s computer in thousandths of a second.  If the sensors detect a force on your car in the right direction and strong enough to need an airbag, it will tell the airbag to deploy.  Front airbags should only deploy if you hit something in front of you (the force vector is in line with your car).  Side curtain airbags should only deploy in a side collision or rollover.  

So, if your airbags did not deploy in a wreck it could be because they were not supposed to. Or it could be that they were supposed to and did not.  If the airbags should have deployed but did not, there is likely a defect that prevented the deployment.  What, exactly, that defect is, takes an experienced airbag lawyer and expert analysis.  

How do bad drugs make it to the market?

The unfortunate reality of the drug market is that pharmaceutical companies manufacture drugs to make money. Because they are in it to make money, most pharmaceutical companies do not like to thoroughly test their new drugs before releasing them (because of cost and potential for losing a portion of the market). This caused many pharmaceutical companies to begin using a loophole in the FDA’s requirement that many drugs be tested before approval for the U.S. market: the 510(k) premarket notification process.

The 510(k) premarket notification process allows drug manufacturers to obtain FDA approval without the rigorous testing drugs usually have to go through. The 510(k) program only requires the drug manufacturer to assert that their product is “substantially equivalent” to a product that is already FDA-approved and on the market. Of course, when it is the pharmaceutical companies who are trying to make a profit, the definition of “substantially equivalent” can become very broad.  Because pharmaceutical companies only have to make the assertion that their new drug is “substantially equivalent” to one already on the market, drugs with unknown side effects end up on the market. Subsequently, people are injured and usually had little to no warning of the potential harm that could come from using the drugs.  At the Merman Law Firm, we believe that pharmaceutical companies should be held responsible, and that’s exactly what we do—we hold them responsible for rushing through the FDA approval process without regard for possible side effects of the drug.

How do I know if my injury was caused by a defective drug?

The only way to conclusively prove that a particular injury was caused by a defective drug is through expert medical diagnosis and workup.  Even with a comprehensive workup, many doctors misdiagnose the cause of an injury because they are not aware that a certain drug causes a specific condition.  This is not the doctors’ fault – a lot of times, drug companies hide, or minimize, the risks of a drug.  Usually what happens is people start getting sick.  At first, doctors do not know why.  As more and more people get sick, common histories arise.  Perhaps the best explanation is what actually happened with fen-phen, perhaps the biggest defective drug disaster in U.S. history.

Doctors in Europe began to notice a rise in incidents of Pulmonary Arterial Hypertension in the early 1990s.  Typically, one in a million (literally) people get PAH and doctors were noticing ten or twenty times the numbers of cases they were used to seeing.  A group of scientists conducted a study, including histories on the new cases of PAH, to determine the cause.  The scientist found that most of the PAH patients had taken some form of fenfluramine (the “fen” in Fen-Phen).  The study then began looking at thousands of people that had taken fenfluramine and saw a huge (2300%) increase in cases.  The scientists published their work in the New England Journal of Medicine and then some of the best defective drug lawyers in the U.S. started digging through the drug company’s records.  They found that the drug company had known all along that PAH was a side effect of fen-phen, but because they were making billions of dollars selling the drug, the drug company hid those facts.  Eventually, because of pressure from lawsuits and the scientific community, the drug was recalled by the FDA.

Except in egregious cases like fen-phen, most people won’t be aware of the connection between their illness and a defective drug until the drug recall.  Most of the cases we litigated at the Merman Law Firm are recalled drugs.  If you are the victim of a defective drug in Houston, you need to find the best defective drug lawyer in Houston to represent you. 

How are recalled product and drug cases different from a typical personal injury case?

In Texas, defective product and drug cases are product liability actions under the Texas Civil Practices and Remedies Code, Section 82.  The Plaintiff must prove a design, manufacturing or marketing defect existed in the product that rendered it unreasonably dangerous for its intended purpose.  The Plaintiff must also show that the defective drug was the producing cause (cause in fact) of his or her injury.

The law is fairly complicated in recalled drug and defective product cases.  There are issues of preemption, where the drug manufacturer will argue that because the drug was approved by the FDA for sale, that they are protected.  That is sometimes the case, but not always.  Likewise, in Texas, there is a rebuttable presumption that the manufacturer is not liable if the warnings on the drug were approved by the FDA.  While similar to a preemption argument, there are some differences that require a drug recall lawyer to decipher.  Then, as in any injury or wrongful death case, there must be expert testimony that the drug caused the injury complained of.   

Because of restrictions under Texas law in a defective drug case, we often file in another permissive venue.  See the next question and answer for more details.    

Where will my case be filed and why?

The place where a case is filed, also called “venue” is one of the most important considerations in any case, but especially so in a defective product or drug case.  The venue, except in some special circumstances not typically applicable to defective product cases, can occur in any one of several places.  First place is where any defendant resides.  The second place is where a substantial portion of the acts or omissions giving rise to the case occurred. This could be where the plaintiff was diagnosed or received the drug, where most of the medical treatment occurred, where the product was manufactured, or where the decisions regarding the design and marketing of the product occurred.  

Recently, there has been a trend toward putting defective drug actions in front of a single Federal Judge for pretrial matters under the Multidistrict Litigation (or MDL) system.  The Court in which an MDL occurs does not have to be situated in any of the permissive venue locations;  it really just depends on where the MDL committee places it.  If there is an MDL, then any case filed in Federal Court must be transferred to the MDL court for pretrial matters.

You need the best product liability lawyer, an experienced defective product lawyer, to represent you so that your case is filed in the best possible venue.  The Merman Law Firm has filed product liability cases from New York City to Los Angeles and most places in between.  

Why should I choose the Merman Law Firm for my defective product case?

As you can see from the questions and answers that precede this one, defective product cases are complicated and different from a typical personal injury case.  There are special laws, difficult scientific and medical issues, and venue choices that require an experienced defective product lawyer to manage.  The Merman Law Firm has litigated defective product cases from Maine to San Diego and many places in between.  Mr. Merman has a degree in biology and understands the science and medicine of defective product law.  And, because we keep our dockets small, every client gets the personal attention that the Merman Law Firm prides itself on.  If you have been injured by a defective product or drug, you need to find the best defective product lawyer for you.  We hope you will consider the Merman Law Firm.