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Products Liability Law and Marketing Defects


Anyone injured by a defective product in Florida may file a products liability claim against the person, or persons, who made, sold and distributed that product. The injured party must allege that a defect in the product design, manufacture or marketing caused the harm. (There could be more than one type of product defect at issue).

A defectively designed or a defectively manufactured product is fairly easy to understand. For example, if a manufacturer designs a car with block-shaped tires instead of round tires, and a driver is injured while operating the block-tire car, he could argue design defect. If the car was accidentally manufactured with block-shaped wheels then the injured driver could argue manufacturing defect.

But what is a marketing defect?

Examples of Alleged Marketing Defects

A design flaw or manufacturing defect is not the only basis for a products liability claim. Even if a product is technically safe, manufacturers can be sued for failing to warn customers of the dangers of using (or misusing) the product in a certain way.

In other words, a marketing defect is the failure to provide customers with adequate safety warnings or usage instructions.

For example, several lawsuits are pending against Cordis Corporation, a company based in Miami Lakes that manufactures inferior vena cava (IVC) filters. While the company designed these filters to protect the heart and lungs from fatal blood clots, the lawsuits claim that they are prone to fracture, disintegration, and migration through the blood system, and that the company failed to warn doctors and patients of these risks.

A December 2016 wrongful death lawsuit claimed that a mother and her two children died in a Ramrod Key house fire because of a faulty electrical outlet and a defective window that prevented them from escaping. Specifically, it alleged that the fire “started by a dangerously defective electrical outlet” manufactured by a New York company, and that the window’s design prevented the family from opening it. (The window was manufactured by a Virginia company.) The lawsuit alleged that the companies should have warned customers about the dangers associated with their outlets and windows.

Foreseeable Misuse of a Product

Both of those examples illustrate how a marketing defect case often goes hand-in-hand with a design or manufacturing defect case.

But sometimes a customer uses a product in a way that the manufacturer never intended, and that misuse has nothing to do with the way the product was designed or manufactured. For example, let’s say a customer purchases a microwave. He reads the usage instructions and then puts aluminum foil in the microwave. He is injured when the aluminum foil catches fire.

The fact that certain types of metal will catch fire if put inside a microwave is a foreseeable hazard, which is why companies should warn against doing so. But if a company failed to warn customers of putting aluminum foil inside a microwave, then they could be held liable under the marketing defect theory.

That is just one example of a potentially foreseeable product misuse. An experienced attorney will examine the facts of your case and help determine whether you have a viable products liability claim.

Contact Us Today

Contact a Fort Myers personal injury attorney at The Pendas Law Firm today for a free consultation if you were injured by a product that didn’t have adequate safety warnings or usage instructions. Our experienced attorneys will help recover compensation for your injuries.

The Pendas Law Firm also represents clients in the Orlando, Miami, West Palm Beach, Jacksonville, Fort Lauderdale, Tampa, Daytona Beach and Bradenton areas.




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