White & Wetherall

Each year, thousands of people around the country are seriously injured or killed as a result of harm from a defective product.  A rung on a ladder fails, a fan malfunctions, a pool drain disembowels a youngster, and the list of incidents goes on and on.  Many times these types of injuries are “embedded” in a case of another type.  For example, an auto accident may be the fault of one or other driver, but the extent of injury may also be due to crashworthiness defects in the cars involved.  A worker may fall from a construction site due in whole or in part to a defectively designed scaffolding. 

In Nevada, a plaintiff in a products liability case has the burden of proving that: 1) the product had a defect which rendered it unreasonably dangerous, 2) the defect existed at the time the product left the manufacturer, and 3) the defect caused the plaintiff’s injury.  See, Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970).  A defective product is dangerous if it fails to perform in the manner reasonably to be expected in the light of its nature and intended function.  Id.

We are fortunate here in Nevada to have strong protections for consumers injured by defective products.  For example, pursuant to NRS 42.005, a punitive damages award in Nevada is typically limited to three times the amount of a compensatory damages awarded, but this punitive damages “cap” does not apply to “a manufacturer, distributor or seller of a defective product.”  See, NRS 42.005(2)(a).  Next, Nevada law provides for the imposition of joint and several liability upon defendants in cases involving “an injury to any person or property resulting from a product which is manufactured, distributed, sold or used in this State.”  See, NRS 41.141(5)(e).  What this means is that each defendant in a products liability case is legally responsible for the entire amount of the verdict against all liable defendants, regardless of each defendant’s percentage of fault.  The imposition of joint and several liability upon products manufacturers sued in Nevada puts greater pressure on them (than would otherwise exist) to meaningfully consider settlement in cases where they have arguable responsibility to any extent.

So why is it that we have these consumer-friendly rules in products liability cases?  The answer is rooted in the public policy of the State of Nevada, as interpreted by our Nevada Supreme Court.  In Allison v. Merck and Co., Inc., 110 Nev. 762, 878 P.2d 948 (1994), a case involving catastrophic injury to a child following a vaccination, the Nevada Supreme Court summed it up as follows: 

The public policy considerations that support holding the defendants liable in this case (if plaintiffs can prove that the vaccine caused his injuries) were put well by Professor Prosser in the noted law review article, “The Fall of the Citadel”:

The public interest in human safety requires the maximum possible protection for the user of the product, and those best able to afford it are the suppliers of the chattel. By placing their goods upon the market, the suppliers represent to the public that they are suitable and safe for use; and by packaging, advertising and otherwise, they do everything they can to induce that belief….(citing) 50 Minn.L.Rev. 791, 799 (1966). This concept of “public interest” is the guiding principle of our present opinion.

We are fortunate that the Nevada Supreme Court continues to adhere and espouse this principal.  In doing so, the Court meaningfully protects the rights of Nevada families who suffer catastrophic harm from defective products.  Having a good, experienced products liability attorney representing you doesn’t hurt either.

This past weekend, I was in Atlanta attending the Advanced Trial Advocacy College for litigating truck collision cases. I’m a member of the American Association for Justice’s Interstate Trucking Litigation Group, and routinely attend these specialized education seminars to update and improve my skill set. This Advocacy College was particularly intensive, and reinforced what I already knew about the handling of truck collision cases - regular auto accident attorneys shouldn’t be “dabbling” in truck collision cases.

Why do I say this? I mean no disrespect. There’s a number of reasons. First, the standards to which commercial vehicles are held are a matter of federal law, namely, the Federal Motor Carrier Safety Act (FMCSA), and most regular auto attorneys have little or no familiarity with these standards. Second, accidents involving trucks typically result in catastrophic injuries (given the forces, weights and speeds involved), and require a higher degree of medical knowledge (about traumatic brain injury, severe back injury, and paralysis) than the run-of-the-mill auto accident case. Third, understanding issues pertaining to insurance, multi-party liability, accident reconstruction, truck characteristics, trucking culture, and behaviors of the trucking industry is absolutely critical in order to attain a full and fair recovery in a trucking case. Trucking companies and their insurance carriers do not pony up millions of dollars for catastrophic injuries (or death) lightly, or easily. They often fight you to the bitter end.

The attorney and firm you choose to represent you in an truck collision must have specialized knowledge, financial resources, and experience to handle these cases competently. Keep this in mind if you or a loved one suffer the misfortune of being in a collision involving a truck. This advice extends to the thousands of safe and courteous truckers out there who are also injured in collisions or loading accidents, despite their best efforts to keep our highways safe. Most truck drivers are good people, but a lot of them work for reckless companies who put profits over safety.