Risks of Defective Drugs and Products

When you buy a product, you expect it to work as advertised. You expect it to be safe for its intended use, and you expect to be able to use it without worrying about the risk of injury. This applies to everything you buy, from your car and the toys you buy your children to your medications and the foods you eat every day.

Unfortunately, not everything we buy meets our expectations. In fact, many products are defective. Manufacturers and producers regularly issue recalls, and these recalls cover just a small fraction of the defective products we may encounter in our day-to-day lives.

Defective products are a concern for workers in many occupations as well. From defective tools and equipment to dangerous herbicides, many workers unknowingly expose themselves to risks on the job. In some cases, these risks lead to traumatic injuries. In others, they cause health complications that may not become apparent until years—or even decades—down the line.

When Are Drugs and Other Products Considered “Defective”?

While we commonly use the word “defective” to describe a product that isn’t working properly, this term has a specific meaning under the law—and there is an important reason why. In legal terms, a product is considered defective if it is unsafe for its ordinary, intended and/or advertised use. As such, a product defect can involve any of the following:

• Design Defect – A product suffers from a design defect if it is unsafe for its intended use regardless of whether it is manufactured properly. If a hip replacement device wears down over time due to friction in the artificial joint, this would be an example of a design defect.
• Manufacturing Defect – A product suffers from a manufacturing defect if it is unsafe because of an issue that arises during the manufacturing process. If a batch of tools comes off of the assembly line without a set screw needed to keep the tool from coming apart, this would be an example of a manufacturing defect.
• Failure to Warn – A failure to warn defect exists when a product is sold without a warning that consumers need in order to use the product safely. If a medication’s warning label omits information about a potential side effect, this would be an example of a failure to warn defect.

Why is it important whether a drug or other product is considered legally “defective”? When a defective product causes an injury or death, a unique legal standard applies. In most personal injury and wrongful death cases, recovering just compensation requires proof of negligence. This means that it must be possible to show that someone else (or a company) was at fault—that they made a mistake that reflects a deviation from the duty of care we all owe in society.

In product defect cases, however, proof of negligence isn’t required. Instead, these cases are governed by the law of “strict liability.” This means that if a victim’s or family’s lawyer can prove that the product in question was defective, this is enough to establish a claim for just compensation. This is true regardless of whether the manufacturer or producer was negligent in putting a defective product on the market.

Common Types of Defective Drugs and Other Products

In recent years, we have seen numerous single-plaintiff and large-scale class-action lawsuits involving all types of defective drugs and other products. Here are some examples of the types of drugs and other products most commonly involved:

Defective Drugs

Medications are essential to modern healthcare. Patients rely on all types of prescription drugs to treat their conditions and manage their symptoms, and other individuals rely on over-the-counter drugs to help with everything from coughs and colds to trouble sleeping. In the United States, all drugs go through (or are supposed to go through) a rigorous testing process to secure approval from the U.S. Food and Drug Administration (FDA) before being sold to hospitals, doctors’ offices and pharmacies.

Despite this approval process, many defective drugs still end up on hospitals, doctor’s offices and pharmacies’ shelves. Some drugs are defective because they don’t work as intended. Others are defective because they present risks for serious, or even fatal, complications. Others still are defective because their labels do not adequately warn of their side effects.

Regardless of why a drug is defective, taking a defective drug can be extremely dangerous. With defective drugs, not only is there a risk of non-treatment, but there is also a risk of harm caused by taking a drug that is unnecessary or dangerous (or both). Drug manufacturers regularly face lawsuits, and some of the largest ever defective product settlements and verdicts have come against these companies.

Some examples of defective drugs that have been the subject of lawsuits in recent years (or that are subject to ongoing litigation) include:

• Belviq
• Bextra
• Risperdal
• Zantac

In addition to defective medications, defective recreational drugs are becoming an increasing concern as well. While we didn’t see too many cases in this area following the cigarette litigation of the 1990s, the popularity of vaping has triggered a new wave of litigation, including the highly-publicized Juul lawsuits.

Defective Medical Devices

Along with defective drugs, defective medical devices are also a significant concern for patients who have been diagnosed with many types of conditions, as well as for those seeking to use medical devices for contraception and other purposes. While medical devices are also subject to an approval process in the United States, this has not stopped defective devices from hitting the market in alarming numbers.

Defective medical devices can present several different types of risks. In some cases, these devices simply aren’t effective—leaving patients without the treatment or protection they need. In others, medical devices break down, causing harmful chemicals or particulates to enter the surrounding tissue or the bloodstream. Defective medical devices have caused conditions ranging from instability and bone degradation to heart conditions and cancers, and they have tragically had fatal consequences in some cases.

Examples of medical devices that have recently been (or are currently) the subject of defective product litigation include:

• Allergan breast implants
• Exactech knee and hip implants
• Hernia mesh
• IVC filters
• Nuvaring contraceptive devices

In addition to implantable medical devices, medical equipment and surgical tools can be defective as well. When these are defective, the consequences can be equally severe. One recent example is the Ethicon surgical stapler, which has been identified as causing internal bleeding, tearing of internal organs, fistulas, sepsis and other potentially fatal complications.

Defective Children’s Clothing, Toys and Furniture

When buying clothing, toys and furniture for our children, we shouldn’t have to worry that the products we buy could unexpectedly cause our children harm. Unfortunately, this is a very real concern. Despite the obvious and devastating consequences of selling dangerous children’s products, far too many manufacturers still choose to prioritize profits over children’s safety.

Some examples of the risks associated with defective children’s clothing, toys and furniture include the risk of choking on small objects, being choked by strings and constructions, falling, and being fallen upon. All types of children’s products can potentially present these risks, and manufacturers have a legal obligation to make sure that they are not putting children—of any age—in harm’s way.

Examples of children’s products that have recently been (or are currently) the subject of defective product litigation include:

• Cribs, shelving and other furniture
• Hoverboards
• Playground equipment
• Plush toys
• Toys with small parts or that look like food

Defective Appliances and Electronics

Too often, the products people buy to make their lives better and easier end up making their lives much more difficult. Defects in appliances, home electronics and personal electronics are all common, and they can present significant risks not only for purchasers but for their household members, guests and others around them as well.

While defective appliances and electronics can present several types of risks, one of the most common dangers is the risk of a fire or explosion due to an electrical short circuit or gas leak. Fires and explosions caused by defective appliances have destroyed homes and offices, caused life-altering burns and scarring, and tragically cost people their lives in many cases.

Examples of home appliances and electronics that have recently been (or are currently) the subject of defective product litigation include:

• Cell phones and smartwatches
• Curling irons and hair straighteners
• Kitchen appliances (ovens, ranges, stoves, refrigerators and dishwashers)
• TVs, stereo systems and other home electronics
• Vaping pens

Defective Tools and Safety Equipment

For individuals who use tools at home or on the job, defects are a serious concern. Design and manufacturing flaws can cause tools to fail suddenly and unexpectedly, and this can lead to injuries ranging from eye and facial injuries to soft tissue damage and bone fractures in other parts of the body. Here, too, while manufacturers and sellers should take into account the risks of selling a product that fails when used as intended, it is clear that far too many fail (or choose not) to do so.

Defective safety equipment is a very real concern on construction sites, in hospitals and other medical facilities, in manufacturing facilities and warehouses, and on other job sites as well. When people trust their safety equipment to protect them, they often aren’t as careful as they otherwise would be.

Examples of tools and safety devices that have recently been (or are currently) the subject of defective product litigation include:

• 3M earplugs
• Hammers, saws and other hand tools
• Hardhats and helmets
• Nail guns, impact drivers and other power tools
• Safety harnesses

Defective Vehicles and Vehicle Components

Every day, people travel hundreds of millions of miles on America’s roads. While most of these miles go by without incident, accidents are still fairly common. While many of these accidents result from driver negligence, some result from vehicle defects.

Vehicle defects are alarmingly common, and some of the largest recalls in history have involved defective vehicle components. In addition to causing accidents, vehicle defects can also increase the risk of serious or fatal injury when an accident occurs. For example, if an airbag fails to inflate—or explodes instead of inflating properly—this can result in serious injuries that could (and should) have been avoided. Even when automotive manufacturers issue widespread recalls, the process of replacing millions of defective components can take years, and not all owners and lessees receive notice of the need for recall service.

Examples of vehicle components that have recently been (or are currently) the subject of defective product litigation include:

• Accelerator pedals
• Airbags
• Seatbelts
• Self-driving technology
• Tires

Defective Foods  

Improper handling, storage and preparation of food products can make foods dangerous for consumption. Unfortunately, these issues are also far too common. Similar to automotive recalls, food recalls are common, and, also similar to automotive recalls, many food recalls don’t come until it is already too late.

Dangerous foods can present a variety of risks. Botulism, E. coli, norovirus, salmonella and toxoplasmosis are among several common illnesses that can result from eating defective foods. When foods are contaminated with toxic weed killers and other contaminants, this can present a risk for cancer and other life-threatening illnesses as well.

Examples of foods that have recently been (or are currently) the subject of defective product litigation include:

• Fish (including raw sushi)
• Fresh produce
• Frozen dinners
• Deli meats and poultry
• Nut butters

Recovering the Financial and Non-Financial Costs Caused By Defective Drugs and Other Products

For individuals and families who are affected by defective drugs and other defective products, recovering financial compensation typically means filing a claim against the manufacturer, producer or seller. The “strict liability” laws we discussed above apply to all companies in a product’s chain of distribution in most cases. Strict liability laws allow for the recovery of all costs incurred as the result of harm caused by a defective drug or other defective product—including financial costs as well as pain and suffering.

While joining a class action lawsuit is an option in some cases, individuals and families can also pursue their claims individually. If you need to know more about filing a product defect claim, you should speak with a lawyer promptly.