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Defective Products

Usually, things we buy are safe and properly designed. But when they aren't, and someone gets hurt, what can you do? Learn about Massachusetts product safety law and your rights

Products that are defectively made can result in serious injury and death. Massachusetts protects its residents and visitors from defective products, and encourages large companies to act responsibly by providing a remedy for injured consumers in the law.

In other words, if you’re hurt by a defective product, the maker or seller can be held responsible.

On this page, you'll learn:

This page was last updated October 2019

The Basics of Defective Product Laws in Massachusetts

What is a defective product?

A defective product is something that is reasonably capable of inflicting substantial harm to both remote and immediate consumers. While some defective products are easily identified, the more complex the product, the more complex it is to show that it is defective. Sometimes, even after injury, it is not immediately clear that the cause of injury is a defective product, tool or piece of machinery.

Products can be defective in a number of ways:

  1. By design: When used for their intended purpose, they have the ability to cause harm
  2. In manufacturing: Products that are designed well can become defective through problems at the manufacturing stage, when they are being assembled
  3. From defective warnings: Where products are dangerous, adequate warnings are required. If those warnings are lacking, products may be held to be defective.

What are some common defective products?

  • Pharmaceuticals
  • Medical devices
  • Children’s toys
  • Household appliances
  • Cleaning products
  • Industrial equipment and machinery
  • Motor vehicles
  • Cosmetics
  • Dangerous chemicals and materials

Today, the law defines product liability in terms of “lack of reasonable care in the manufacture of the product.”

Products liability lawsuits were first acknowledged in the United States in 1906. In the early days of this area of the law, there was a requirement for privity between the buyer and manufacturer. This means that there was a direct relationship between them. If you bought a boot from a shoe store, you could not hold the boot maker responsible for a bad boot, because there was no direct relationship.

After the inception of products liability law, states gradually began broadening the scope of liability. In 1946, Massachusetts adopted the rule that a manufacturer of any product could be held liable if the product was defective and reasonably capable of inflicting substantial harm to remote as well as immediate consumers. In our boot example, the boot factory could then be held responsible, even if you bought the boot from a shoe store.

The rule, as promulgated by the court, is “lack of reasonable care in the manufacture of the product.” Carter v. Yardley & Co., 319 Mass. 92, 64 N.E.2d 639, 164 A.L.R. 559 (1946)

Who can be held liable for a defective product?

The legal basis for liability for defective products in the United States starts with the manufacturer, and the manufacturer of any component parts of the product. For example, the maker of a line of artificial hip joints was held responsible for the harms of defective design in its metal-on-metal implants.

In some instances, the seller or distributor of a product may be held liable for the defective condition of the product. For example, Toys-R-Us was found responsible a death resulting from selling pool slides that were never tested for federal safety requirements.

It might seem that goods made outside the US could escape liability, but foreign companies are subjected to US laws if they conduct business here. Many foreign corporations have stores or offices in the United States which makes it easy to establish jurisdiction of the court over them.

In some cases, however, foreign companies sell their products to distributors who then sell to consumers inside the United States. This can lead to a liability shield protecting the foreign corporation.

If a foreign corporation has not conducted sufficient business in the United States to be held directly liable, it is likely that the distributor could be held liable for defective conditions in the products being distributed. Such cases require extensive and complex discovery of the contracts and agreements between potential defendants.

Who can be awarded damages?

Product liability claims are not limited to the buyer of the product. Liability extends to all reasonably foreseeable users, including secondary buyers as well as employees of buyers.

For example, an employee hurt by defective machinery in a factory, despite not buying the machine themselves, could certainly bring a liability claim. The machine-maker should expect that employees of the factory will use its product.

How are damages calculated in Massachusetts? What kinds of damage are recognized?

As in any action for personal injuries in Massachusetts, damages can be awarded both for pain and suffering and for special damages. "Special damages” is a legal term for losses you can account for financially. Medical bills, lost wages, loss of future earnings, and any other expenses incurred all are special damages.

When an injury results the loss of relationship between the injured person and their family, a separate “loss of consortium” claim may be brought in Massachusetts. This special type of claim is available to spouses and minor children when someone suffers catastrophic or life-altering injuries, and their relationship has been “materially altered.” A loss of consortium claim is separate and apart from other claims.

A lost parent or spouse, or a damaged relationship, is difficult to quantify, and no amount of money can ever replace them. A good personal injury attorney can help navigate these waters.

How to File a Defective Products Lawsuit

How does a product liability lawsuit work? How do I start a case?

Any personal injury or product liability case starts by consulting with an experienced attorney. An attorney will help figure out how to pursue your claim, and advise you of your options. SUGARMAN does not charge clients for initial consultations, either on the phone or in person.

After the initial consultation phase of a case, the next step is to investigate the potential claim. Again, it is common practice for SUGARMAN to not charge for investigation of a potential claim.

Should I take pictures?

If you have the ability to or someone else can, it may be helpful to have the product or accident scene photographed soon after an accident takes place. 

What if the product contained a disclaimer?

When a product has a disclaimer, warning, or instructions, it may limit your ability to recover for damages in a defective products case. For some products, labels, warnings, instructions and other markings are overseen by the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) under the Fair Packaging and Labeling Act (FPLA). This law requires companies to completely and sufficiently disclose all the potential risks from using their products. 

However, if the disclaimer, warning, or instructions are not clear or sufficient, or if the product is too complex, then you cannot be expected to understand the potential danger.

What if the product is old?

Just because the defective product is old does not mean you don’t have grounds to file a claim. The claim may depend on whether the product was reasonably safe at the time it was manufactured and sold compared to other similar products.

What if I don’t have the defective product anymore?

It is possible to still move forward with a lawsuit without the product, although it may make it much more difficult to prove the case. It will likely depend on the circumstances of how the product was lost or disposed of. If you believe you may have a defective products case, you should always keep the product itself.

Other Common Questions About Defective Products

What is the difference between implied warranties and express warranties?

An express warranty is something that is written or stated about the product. This can include claims made in advertisements, signs, paperwork included with the product, or stated on the product itself. 

An implied warranty is the guarantee that the product you are buying will reasonably work for the purpose that it was sold for.

Is there a statute of limitations on product liability?

In Massachusetts, a case must be brought within three years of discovering the injury. This is not necessarily the same as when the injury occurred. The effects of damage or injury by a defective product aren't always evident at first.

Even if more than three years have elapsed, talk to an attorney. An experienced lawyer can provide an additional viewpoint, and may be able to show that the statute of limitations doesn’t yet apply.

How does a product liability lawsuit work? How do I start a case?

Any personal injury or product liability case starts by consulting with an experienced attorney. An attorney will help figure out how to pursue your claim, and advise you of your options. SUGARMAN does not charge clients for initial consultations, either on the phone or in person.

After the initial consultation phase of a case, the next step is to investigate the potential claim. Again, it is common practice for SUGARMAN to not charge for investigation of a potential claim.

What does it cost? Will I have to pay? What is a contingency fee?

If a lawsuit is brought, costs can include legal research fees, inspection of the accident site, inspection of the defective product, and hiring expert witnesses, among others. This can add up to a significant amount of money. Often, SUGARMAN “advance” these funds to be repaid by the client when the claim is settled. This means that you don’t have to be wealthy to get your day in court; you get a fair chance.

SUGARMAN's personal injury attorneys typically work on a contingency fee basis. This means a legal fee is only paid if the claim is successful in obtaining compensation. If there’s no recovery of compensation, there is no fee, and no repayment of the out-of-pocket expenses.

All fees and out-of-pocket expense reimbursements are agreed to up front, in a written contract signed by both the law firm and the client.

How long does a defective product case take?

In Massachusetts, cases involving defective products are assigned to an “average” track, which is a bit of a misleading description. It actually means that these cases take much longer to make their way to trial than other cases. It is difficult to accurately predict how long a defective products case can take, but a general average is 3-4 years from the date of filing until the time of trial.

How do I choose a good lawyer?

There is no cut-and-dried way to find the right lawyer. Often, clients are referred by local general practice lawyers or by a family attorney to personal injury law firms.

The internet is a useful tool for anyone thinking about bringing a claim, but careful consideration and vetting is required. Reviewing personal injury law firm websites can help you learn more about various firms before making a decision.

For more information on finding the right lawyer for you, see our frequently asked questions page.

SUGARMAN has decades of experience helping people with Defective Products and Consumer Goods in Massachusetts. If you need help, we're here to talk.