The cause of the plaintiff’s damages is typically the first and most critical question posed to a jury in a product liability trial. If a jury determines that a substantial factor in the cause of the plaintiff’s damages was a natural event, such as lightning, a tornado or some other weather-related event, the defendant is not held liable. The act of God defense has been around since the 1800s and, if successfully proven at trial, can serve as a complete defense to a product liability claim. For a variety of reasons, however, the act of God defense has been streamlined by most courts and its viability is being tested in product liability litigation around the nation.
Ernie Goodwin focuses his practice on product liability, specifically the defense of domestic and foreign manufacturers, distributors and retailers in the United States, Canada and Europe. He defends a range of products nationally, while supervising local counsel when necessary, including swimming pools, swimming pool component parts, televisions, cellular phones, microwave ovens, toaster ovens, refrigerators and other consumer electronics and appliances. Ernie represents manufacturers as defense counsel of record in litigation and pre-suit investigations in personal injury claims involving fatalities, neurological injuries, burn injuries, electrocutions, hearing loss and others.
Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the color of the label and its location on the product are relevant to the effectiveness of the warning. In my experience defending manufacturers of various types of products, I have seen plaintiffs make speculative failure to warn claims. Less-experienced plaintiffs’ attorneys assume that a creative theory developed by a well-credentialed “warnings expert” will be enough to leverage a settlement in an otherwise weak case on liability. That is a dangerous assumption to make.
Continue Reading WARNING! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk