Zimmer, Inc. (“Zimmer”) is a medical manufacturer best known for its hip and knee replacements. Zimmer target-marketed its knee replacements to women and attempted to make a name for itself as a manufacturer of medical devices and products used as implants during minimally-invasive surgeries in patients otherwise plagued with chronic, long-term pain. Zimmer’s NexGen knee replacement medical device was recalled in September 2010 and many recall lawsuits and claims resulted for higher-than-acceptable failure rates and premature revision or corrective surgery requirements. In July 2008, the manufacturer’s Durom Cup hip implant was recalled and its sales were suspended due to reported high incidences of premature revision and other corrective, successive surgeries. Patients of Zimmer implant devices for the knee and hip complained of:
- nerve and vessel damage
- blood clots
- revision surgeries
- failures, among other adverse side effects and consequences
What Is A Defective Product
A defective product is one that is unreasonably dangerous in condition at the time the product left the hands and control of the defendant manufacturer. The term “unreasonably dangerous” is a legal term meaning that the product is more dangerous than an ordinary user would anticipate in the ordinary course of conduct, dealing and usage. An individual who thinks he or she has been damaged by a defective product needs to know the next steps to take.
How Does A Consumer Show A Product Was Defective
The defect can be demonstrated by proving there was a flaw in materials that were utilized to construct the product, that it was manufactured in a faulty manner, that the design was unsafe or that its packaging contains insufficient warnings or instructions. A product can also be considered defective if it does not perform in a way that satisfies a consumer’s reasonable expectations. However, a defendant manufacturer need not be negligent for a product to be considered defective.
Are There Deadlines For Making A Showing Of Product Defects
It is true that a defect in a product has to have existed in that product when it first left the control and custody of the defendant. However, the defect does not have to have appeared or revealed itself in the product immediately. In fact, the majority of defects do not go on to cause accidents, injuries, incidents or occurrences until later in the product’s lifespan.
What If I Am Injured By A Defective Product
If a defective product is the cause of an accident or incident that results in a party’s death or injury, or even damage to a person’s or entity’s property, then the defendant manufacturer, distributor, retailer and lessor of the product could face liability for damages stemming from the item. The plaintiff is the claimant or party who suffers injury or damage from the product. The defendant is the party who is believed liable, who is sued for payment of damages and who is responsible for bringing the product into the marketplace.
The plaintiff must demonstrate the product’s defectiveness in a manner such as enumerated above. The plaintiff must also demonstrate that after the product was utilized, it was never altered or changed in a way that materially raised the risk of any failure or accident. The only exception occurs if the alteration was made pursuant to the defendant’s directives.
If a defective product causes an accident, an injured party can bring a suit against the manufacturer or distributor of the defective product even if the injured party bought the product from a retailer/middle man and not directly from the manufacturer or distributor. The injured party can be the product’s purchaser, consumer, user, a family member or even a third-party bystander.
A plaintiff must prove that the defendant entity was in the business of manufacturing or marketing products like the defective product and that it did indeed distribute the defective product that caused the incident or accident. Disclaimers and limits of liability in manufacturer or other defendant literature, including contracts, are usually considered null, void and ineffective.