The questions on this page were answered by our team of Virginia Beach & Norfolk personal injury attorneys. The questions are categorized by practice area such as car accidents, medical malpractice, wrongful death, etc. If you have specific questions about your situation, contact our firm to set up a free consultation with an actual attorney.
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How can I prove that a defective drug caused my health problems or a family member’s death?
Succeeding with a defective drug claim in Virginia usually requires showing all of the following things:
- The person who used the drug suffered a serious health problem or died,
- The health problem or death can be linked to use of the drug,
- The drug maker failed to warn the patient about the potential health problem or risk of death, and
- The drug maker knew or should have known that the risk to patients’ health or lives existed.
These are the evidentiary standards imposed on failure to warn cases. A smaller number of defective drug cases arise from manufacturing defects. In those cases, a patient experiences a severe side effect or dies because the drug maker or compounding pharmacist used the wrong ingredients; used too much of the active pharmaceutical ingredient, thereby, triggering an overdose; or included harmful substances in the drug product that should not be included.
A drug maker faced with a defective drug lawsuit will argue that its product was safe and that any problems experienced by patients were caused by things other than its product. Working with a dedicated Virginia personal injury lawyer is often necessary to collect, organize and present the evidence that counters the drug maker’s arguments.
Can I file a lawsuit over a severe drug side effect?
Just suffering a severe side effect is almost never enough to justify filing a defective drug lawsuit. First, drug makers protect themselves from legal claims by listing potential problems for patients in product labeling. Beyond that, it is not always clear that a health problem or death can be blamed on using a medication.
Grounds for a defective drug lawsuit in Virginia exist only when one of the following things is true:
- A patient or a patient’s family member can show that the drug maker knew or should have known that a risk existed and failed to warn anyone about that risk; or
- A patient or family member can show that harmful errors were made during the manufacturing process.
What is a defective drug?
A defective drug is one that causes undisclosed, severe side effects. A drug can be defective because its maker failed to warn patients about the risk or because it contains the wrong ingredients.
Examples of defective drugs for which pharmaceutical companies failed to issue adequate warning include Actos (pioglitazone for diabetes, which causes heart failure and bladder cancer) and Pradaxa (dabigatran for breaking up blood clots, which causes life-threating internal bleeding).
Any drug product can have manufacturing defects at any time. Analyzing doses from the batch including the drug used by the patient who suffered a severe, unexpected side effect will be necessary to identify the error.
What are some of the common types of auto defects that can lead to injury and litigation?Some of the most common auto defects that may cause personal injury are steering wheel problems; fuel system problems and leaks; malfunctioning windshield wipers; seats and seat backs that fail; child safety seat defects; wiring system problems; defective brakes and faulty airbags.
What is the difference between a design and manufacturing defect?
A design defect happens when the manufacturer designs the product in a way that is unreasonably dangerous to the end user, such as a defect in a car that makes it more likely to flip during an accident.
A manufacturing defect happens when there is an error in the manufacturing process.
I was in a Lowes hardware store walking down an aisle when a clerk was trying to get something down and it fell and smashed my foot causing me to have a fractured bone. What is necessary to be proven in a falling merchandise case?
This falls under a classification of what we call a business premises case and in that type case we must show that the business either knew or should have known of the dangerous condition or if it is obvious that an employee of the business created the dangerous condition, that will be sufficient to show negligence in normal circumstances. In this type of case we can also demand information on prior injury claims not only at the store where your accident happened but from other similar stores to show that there is an awareness on the business of this danger but they still stack boxes high above areas where patrons walk.
My wife purchased a vacuum cleaner a number of years ago, and when using it it suddenly burst into flames causing burns. We don't have any receipt showing the proof of purchase, do we still have a case if we could show the product was defective?
There are some tricky issues, but proof of actual purchase such as a receipt is not mandatory as long as corroborating evidence can show when the machine was purchased. Remember, as long as we know what company manufactured the vacuum we've identified the manufacturer, but it is required to know which business sold it in order to sue the retailer as well.
I was injured by a product that slashed my wrist because there was no guard across the blade. What types of legal theories does a defective product attorney use to sue a manufacturer or distributor?
The most common theories in defective product cases are breach of warranty (it can be an express warranty that was written, an oral warranty, or an implied warranty by law). Some states have another theory that is called strict liability, but not every state follows that rule so talk to one of our defective product lawyers for advice.
What is negligence with regard to a product defect, how do we go about proving negligence?
There are a couple of negligence theories in product liability/faulty product cases: Proof that the product was defective as manufactured when it left the factory (this is done by tracing the product condition back to the time it was manufactured, with no changes or significant maintenance, which can be the proof of a defect as manufactured). Or it can be shown that the manufacturer negligently failed to warn you or general consumers about a known product defect, and that the manufacturer had the ability to get the word out by letters, by Internet or other means.
What types of breach of warranty claims can be made against a manufacturer?
All states have implied warranties under state laws or the Uniform Commercial Code which state that products must be free of material defects or defects in workmanship, that products must be fit for the ordinary purposes for which they are sold, and state laws vary on whether these implied by law warranties can be waived or not, so consult with a defective product attorney with our firm. Implied warranties are in addition to any written warranty that was advertised along with the product.