Page Reviewed / Updated – July 29, 2019

Definitions: Defective Products and Product Liability

Injuries to the elderly resulting from defective products are not uncommon and can result in high medical expenses and prolonged periods of recovery during which additional care is required.   What exactly is product liability and what makes for a defective product?  Product liability is simply the area of law that holds companies responsible for injuries caused by the products they design, create, distribute or sell. Defective products are defined as commercially produced goods that are unfit for their intended use, dangerous in a way that is not immediately obvious or lacking sufficient instructions for safe use. There are 3 types of defects; design, manufacturing and marketing.  A product can be designed incorrectly so that it does not achieve its intended goal.  It can also be designed correctly, but manufactured incorrectly with the end result being the same.  Marketing defects are less obvious, these are most commonly failure-to-warn defects where the products have an inherent danger which is not obvious and the company failed to warn users about that danger.

Types of Defective Products

There are 4 categories of products that commonly cause injuries to the elderly. 1. Consumer goods that are safe for younger individuals but may be dangerous to older individuals with decreased strength and reaction times. These can include bath equipment, furniture, kitchen appliances and other consumer electronics. 2. Medical implants which malfunction or wear prematurely. For example, in 2010 there was a recall of DePuy artificial hips which affected approximately 100,000 individuals. 3. Medical equipment or DME (durable medical equipment) such as wheelchairs, walkers and hospital beds can be complicated to use properly and easy to injury oneself or a loved one. 4. Defective drugs that are designed for one condition, may have side effects that sometimes cause other medical issues such as diabetes or heart attacks.  We maintain a separate page specifically addressing compensation for defective drugs here.

Types of Injuries and Expenses Due Compensation

A rule of thumb is victims can be compensated 2 – 3 times their out-of-pocket medical and care expenses.

The type of injury and extent of recovery are the major factors that affect the medical and care expenses for which an injured person is due reimbursement or compensation. For persons who make a full and complete recovery from their injuries, they can be reimbursed for their complete out-of-pocket medical and care expenses and approximately 2-3 times that amount for the general disruption to their lives. Often elderly individuals never make a full recovery from their injuries and require additional care for the remainder of their lives. In addition to their complete medical and care expenses, these persons may require the purchase of medical equipment such as a wheelchair to accommodate for their new disability, their home may need a wheelchair ramp, their bathroom may require disability modifications and they might need home care several days a week to help them with their activities of daily living. The injured individual can and should receive compensation for all of these new added expenses which they otherwise would not have incurred had they not been injured. In addition, they may be due 2-3 times this amount in general damages for their pain and suffering.

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Working With an Attorney

Attorneys do not charge clients upfront, instead their fees are deducted from the settlement and only if they win.

Defective product attorneys typically do not charge their clients directly for their services. Instead they will take a percentage of the settlement amount should they win the case. This model of payment impacts the elderly in two ways. First, it is beneficial in that fixed income seniors are not required to put forth their limited resources to hire an attorney. Second, attorneys will only accept these cases if they determine they are very likely to reach a settlement. Approximately 80% of defective product cases taken by attorneys result in a settlement for the individual. Attorneys’ fees for product liability cases are usually between 25% – 40% of the final settlement amount. While receiving compensation for defective product injuries does not solve a family’s financial challenges with long term care, fair compensation can be a considerable help. Should an individual be injured, this source of funds should not be ignored.