Exploding cellphones, defective air bags, and medical devices that do more harm than good — stories about these and other dangerous products appear in the news on a regular basis. When a product cannot be trusted to do what it was intended to without hurting the people who use it, it has no place on the market.

If a product manufacturer fails to properly warn consumers about the dangers their products may pose, consumers can seek monetary compensation to remedy the harm they have experienced. In West Virginia, a manufacturer is any person or business who “designs, assembles, fabricates, produces, constructs or otherwise prepares a product or a component part of a product before the sale of the product to a user or consumer.” In some cases, such as when a seller modifies a product himself or when the manufacturer cannot be located, a product retailer can be held accountable instead.

A number of factors must exist to prove that a company is responsible for the injuries caused by its products or services. When a plaintiff alleges “failure to warn” as the basis for a products liability lawsuit, they must be able to show all of the following:

  • The manufacturer knew about the danger of the product.
  • The product carried no warning or an inadequate warning.
  • The product caused harm.
  • The harmed person would have used the product differently if the manufacturer had given an adequate warning.

To prove that a person would have heeded a warning if an appropriate one had been provided, it is often necessary to show that the person read the instructions or warnings that were provided. When pharmaceutical companies or medical device manufacturers are responsible for the hazardous product, a claimant is required to show that the company “acted unreasonably in failing to provide reasonable instructions or warnings” about risks to the medical professionals who were in a position to provide warnings.

Failure-to-warn claims are common in products liability lawsuits. However, not just anyone injured while using a product is able to make a strong case for receiving payment. In one example of a failed claim, from May 2018, the West Virginia Supreme Court ruled that a brand-name drug manufacturer was not liable for failing to warn the users of an equivalent generic drug about its potential risks.

The lawyers at Calwell Luce diTrapano PLLC in Charleston, West Virginia are experienced in representing individuals harmed by manufacturers who failed to issue warnings about dangerous products. If you were injured by such a product, we urge you to call us at 800-876-5529 or contact us online.