Articles Posted in Product Liability

As health experts recommend people wash their hands for at least 20 seconds and take other health precautions to avoid illness, products like hand sanitizer have become highly sought after during the COVID-19 pandemic. Because of this, many companies have increased production on hand sanitizers and disinfectants to meet this heightened need. However, in order to meet the demand, not all hand sanitizer manufacturers have created a safe product for consumers. According to a recent article, the U.S. Food and Drug Administration (FDA) recently recalled dozens of widely available hand sanitizers because they contain potentially deadly levels of wood alcohol. Product recalls like these can often result in serious injury to consumers, and may be the basis for a New Hampshire product liability claim.

The Centers for Disease Control and Prevention recommends using an alcohol-based sanitizer with at least 60% ethanol. However, many of the recalled products instead contain methanol, or wood alcohol. Methanol can be toxic when absorbed through the skin and may even cause blindness. Furthermore, it is often deadly if ingested.

Besides containing methanol, the recently recalled sanitizers are extremely dangerous because their labels are misleading, indicating the products contain ethanol rather than wood alcohol. Because of the labeling error, consumers are not able to tell whether they are buying hand sanitizer with methanol or ethanol. To help consumers ensure they do not use a dangerous product, the FDA maintains a list of recalled products on its website. Additionally, the FDA warns of products that claim to be “FDA-approved,” as no such label exists.

Recently, the New York Times reported on a recall of bagged salad mixes that are thought to have caused an outbreak of an intestinal illness—cyclosporiasis—caused by a microscopic parasite. The Centers for Disease Control and Prevention (CDC) has warned consumers and retailers in eight states to stop buying and selling these mixes while the outbreak is investigated. More than 200 people reported eating the salad mixes before getting sick, and at least 23 have been hospitalized due to the illness. The outbreak seems to have started in mid-May, and has affected people from ages 16 to 92 years old. The story is an illustration of harms New Hampshire residents could face from contaminated grocery products.

Cyclosporiasis is caused by Cyclospora cayetanensis, which is a microscopic parasite that can contaminate both food and water. Symptoms of cyclosporiasis include cramping, diarrhea, and fatigue. Fortunately, the illness can be treated with an antibiotic, and some healthy people may recover on their own even without treatment. The first outbreak of the illness that was linked with food was reported in the 1990s, and scientists are still are not sure what caused it. However, 2020 is the third year in a row that has seen an outbreak during the warmer months. One food microbiologist who spoke to the New York Times stated that the outbreaks are likely due to the quality of water used to irrigate the produce, but that there are a lot of unknown variables.

Sometimes, when a New Hampshire resident gets sick, it is not clear what caused the sickness. It may be hard or even impossible for some to connect their illness to something specific they ate. That’s why New Hampshire residents who get unexpectedly sick should be on the lookout for both voluntarily and forced recalls of food products, and see if others in their house who did or did not eat certain products also get sick or not.

New Hampshire law allows those who are injured by the use of a defective product to bring a personal injury claim against the product’s manufacturer, retailer, supplier, or even sometimes another related party. These suits, called “product liability” lawsuits, sometimes lead to a discussion of what exactly constitutes a product. For example, if a water slide at an amusement park is defective and leads to a user’s injuries, can they file product liability suit against the park? Recently, a state appellate court considered this exact issue in a decision that may shed insight into how New Hampshire courts would handle the same situation.

According to the court’s written opinion, the plaintiff in the case was visiting a theme park operated by the defendant. He went down a water slide at the park, but during the course of his ride, he accidentally slipped from a seated position on an inner tube onto his stomach. When he entered the splash pool at the end of the slide, his feet hit the bottom of the pool, causing him to fracture his hip and his pelvis.

The plaintiff sued the defendant under a theory of product liability, claiming that the water slide was a defective product that caused his injuries. The plaintiff argued that he could sue the operator of the park because they were in the water slide’s “chain of distribution.” The defendant asked the court to dismiss this claim, arguing that the doctrine of product liability did not apply because they were not supplying the plaintiff with the product, but instead delivered an amusement “service” to him. As such, the court had to consider this important question: is purchasing a ticket to an amusement park and riding a water slide at an amusement park considered a product or a service? Put another way, were guests to the amusement park buying tickets to the park primarily to use the water slides, or primarily to obtain a service which may involve the use of water slides? If the former, then product liability is appropriate. If the latter, then is it not.

As the COVID-19 Pandemic continues to affect individuals across the country, more and more New Hampshire residents are working from, and spending more time in, their homes. For many, this has prompted an increase in purchasing new furniture online—a new desk for working from home, a comfortable sofa for nights in, or a new mattress for a family member who’s moved in. In fact, NBC news recently reported that Wayfair, an online furniture marketplace, has had massive spikes in their revenue and active customers since early March of this year. While new furniture can be helpful or beneficial for many families, improperly designed furniture can be dangerous and can even cause serious injuries. While these injuries can be devastating and unexpected, New Hampshire law does protect consumers by allowing those injured by improperly designed or defective furniture to recover in a product liability lawsuit.

For example, last month the United States Consumer Product Safety Commission published information on a recall of dressers and cabinets that were sold in the United States and Canada. The recalled dressers and cabinets were found to be unstable and could tip over if not anchored to the wall, which poses a serious threat to children who may unintentionally cause them to tip over. According to the recall, the hazard could cause serious injuries or even death. About 2,700 units were sold, and consumers who purchased the unit are entitled to a full refund.

The above example is just one of many recalls that occur each year on cabinets, refrigerators, dressers, couches, desks, and more. Typically, these recalls offer refunds to those who purchased the unit. However, if someone has already been injured due to the product’s defect or design, the refund may not be enough to cover their medical bills and expenses. Alternatively, sometimes a consumer may be injured by a product that has not yet been recalled. In these situations, injured consumers may consider filing a product liability lawsuit against the manufacturer and/or the seller of the item. If successful, these suits can lead to monetary compensation to cover the injured victim’s past and future medical bills, lost wages, and pain and suffering.

After several months of investigation, the U.S. Food and Drug Administration (FDA) announced that manufacturers of over-the-counter and prescription drugs containing ranitidine, such as Zantac, must immediately pull their products from the market. The FDA’s announcement comes after researchers discovered that many of these drugs contain unsafe levels of a contaminant, commonly referred to as NDMA. New Hampshire individuals who suffered injuries after consuming an unsafe medication, such as Zantac, may have a claim for damages under the state’s product liability laws.

Despite numerous studies indicating the link between ranitidine and cancer, for years, doctors and pharmacists have recommended these drugs for heartburn, stomach pains, and gastrointestinal issues. Moreover, evidence suggests that to protect their financial interest, some pharmaceutical companies concealed the link between cancer and the products for several years.

The FDA began conducting more extensive preliminary testing of the products’ NDMA levels after an online retailer alerted the agency of the extremely high levels of the cancer-causing agent in their products. Although, many food and drinks contain small levels of NDMA, the agency warns that the drugs in issue contain levels that are unsafe for human consumption. Some of the samples they tested contained insignificant levels of the contaminant; however, others had significant levels of the impurity. They discovered that the impurity level increased when the product was left out at higher temperatures for more extended periods.

Many popular baby product brands who sell infant recliners are receiving intense scrutiny after several babies have died while using these products. These products were designed with incorrect and unsafe beliefs about infant sleep, and as a result, many families have suffered traumatic losses. Under New Hampshire products liability laws, families whose babies have died using a baby infant sleeper may be entitled to monetary compensation for their damages.

Although, many of these companies boasted that these products were a useful remedy for infants who had sleeping difficulties because of acid reflux, experts contend that there is no scientific evidence that an incline is helpful for this condition. Further, the American Academy of Pediatrics (AAP) advises parents to abide by safe sleep guidelines. These guidelines include always placing infants on their backs on a flat, firm surface without any objects in the area. They report that deviating from these standards can result in suffocation and subsequent brain injury or death. Despite the AAP’s baby sleep guidelines, Fisher-Price continued to market its products as a “sleeper.”

In April 2019, the Consumer Products Safety Commission (CPSC) issued a consumer warning advising parents not to use their highly-reviewed Rock n’ Play infant sleeper. The CPSC, in conjunction with the AAP, urged the company to issue a recall following several reports that babies died while sleeping unrestrained in the recliner. Following intense pressure and negative exposure, the company voluntarily issued a recall, allowing customers to receive a voucher or refund for their product.

Recently, a state appellate court issued a written opinion in a New Hampshire personal injury case giving the court the opportunity to discuss product liability law as it pertained to the plaintiff’s claim that he contracted salmonella at the defendant restaurant. Ultimately, the court affirmed the jury’s $750,000 verdict in favor of the plaintiff.

According to the court’s opinion, the plaintiff contracted a case of salmonella shortly after consuming a hamburger while dining at the defendant restaurant. The plaintiff filed a New Hampshire personal injury case against the restaurant, claiming that it was liable for his injuries under the theory of strict product liability.

In its defense, the restaurant made several arguments, mostly focused on attacking the plaintiff’s theory of causation. For example, the restaurant pointed out that another person in the plaintiff’s party also ate a hamburger and that the plaintiff owned a pet lizard which could have been the source of the salmonella. The defendant also argued that the plaintiff ate other meals in between the meal at the defendant’s restaurant, and when he contracted salmonella.

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