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Products Liability Practice Guide
Copyright 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

1-7 Products Liability Practice Guide 7.syn


Types of Defects


John J. Vargo, Editor;; Robert B. Yules

Chapter Summary


This chapter from Products Liability Practice Guide states that the three categories of product defects are (1) manufacturing defects, (2) design defects, and (3) marketing defects (failure to warn or instruct).

The chapter first covers manufacturing defects. It begins by defining "manufacturing defect" and listing the elements the plaintiff must prove. It also discusses issues of unnatural substances found in products such as foods, vaccines, or cosmetics, deficiency in materials or workmanship, and failure to inspect. Next, it covers proof of manufacturing defects. This includes direct evidence of the nature of the product and expert and eye witness testimony; circumstantial evidence; negating other possible causes; evidence of a large number of similar injuries, and allocating the burden of proof. Then, it discusses the use of experts and demonstrative evidence. Further, it considers potential sources of information about manufacturing defects.

The chapter next explains design defect cases. In contrast to a manufacturing defect case which involves a defect in an individual product sample, the focus in a design defect case is on a defect in the design of an entire product line. A product is defective in design if: (1) the plaintiff proves that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner ("consumer expectation test") or (2) the plaintiff proves that the product's design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design ("risk-utility balancing test").It also considers the "hindsight negligence" or "reasonably-prudent-manufacturer: test, in which design is defective and the manufacturer is liable if it would have been negligent had it sold the product knowing of the risks involved. It also considers the "pure risk-utility" test, which provides that, if there are no safer alternatives, a product is not unreasonably dangerous as a matter of law. Further, the chapter discusses the Model Uniform Products Liability Act.

In addition, the chapter discusses marketing or warning defects. A failure to warn case may be predicated on: (1) the absence of a warning; (2) the inadequacy of the warning given; or (3) the absence or inadequacy of instructions in the safe use of the product. The chapter considers the scope of the "failure to warn" case, negligent failure to warn, when the duty to ward arises, and adequacy of the warning. It also discusses proof of inadequate warnings, such as by expert testimony, evidence of subsequent remedial measures, and the use of demonstrative evidence.

The chapter concludes with a discussion of the use of "human factors" experts in products liability actions, particularly failure to warn cases. It covers the types of experts, which include the "traditional" expert and the "new" expert. It also discusses the meaning of human factors, human factors in a plaintiff's product liability case, and defense techniques and strategies. Further, it discusses judicial decisions involving human factors experts.

Products Liability Practice Guide (Matthew Bender) provides an unparalleled collection of winning strategies and tactics for an entire range of products. It provides step-by-step guidance through each phase of a products liability case from the initial fact-gathering process, to use of forensic experts, to effective trial strategy. It also includes chapter-by-chapter topical treatment of specific products, from asbestos, all-terrain vehicles, clothing and contraceptives, to toys, airplanes, tobacco, firearms and more. In addition, practice aids are provides throughout the publication, including checklists, forms, commentary, trial pointers, sample pleadings, and research guides.


Products Liability,Defect,Product Defect,Manufacturing Defect,Design Defect,Marketing Defect,Warning Defect,Human Factors,Warn,Instruct,Expert,Testimony,Torts,Negligence,Proof,Custom,Negligence,Standards of Care,Reasonable Care,Uniform Products Liability Act,Consumer Expectation,Risk-Utility Balancing,Reasonably-Prudent-Manufacturer,Pure Risk-Utility,Risk-Utility


Related chapters include Chapter 5, Evaluation of the Case; Chapter 6, Theories of Liability; Chapter 12, Product Experts--Plaintiff's View; Chapter 13, Product Experts--Defense View; and Chapter 29, Jury Instructions.


See Frumer & Friedman, Products Liability (Matthew Bender) for coverage of every facet of products liability law, including discussion of manufacturers, retailers, wholesalers, middlemen, repairers, and advertisers as potentially liable parties; liability under the theories of strict liability in tort, breach of warranty, negligence, misrepresentation, and fraudulent concealment; and state products liability legislation and statutory references.

See Jury Instructions on Products Liability (Matthew Bender) for jury instructions that cite supporting case law, including relevant law review articles and annotations to American Law Reports, covering such topics as strict products liability, parties, warranty liability, misrepresentations, design defect liability, manufacturing, testing, inspecting, duty to warn, matters of proof, defenses, and causation.

See Federal Trial Guide (Matthew Bender) for pretrial and trial procedures for preparing cases in federal court, including amending pleadings, making motions, selecting juries, arguing points, admitting evidence, making objections, and examining witnesses.

See Federal Civil Procedure Litigation Manual (Matthew Bender) for the complete text of the Federal Rules of Civil Procedure, along with insightful commentary on each rule, additional supporting authorities, and recent significant cases.

See Federal Litigation Guide (Matthew Bender) for thorough coverage of federal civil procedure from filing the complaint, to conducting discovery, through trial and appeal.
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