Can we file a class action suit against a company whose product caused my wife to suffer irreparable lung damage that now requires life long treatment?

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Can we file a class action suit against a company whose product caused my wife to suffer irreparable lung damage that now requires life long treatment?

My wife was an avid gardener and used a product which we now know contained bird droppings as an additive. These are now believed to be the one of sources of a disease called Mycobacterium Avium Complex MAC. This disease is commonly treated with 2 or 3 antibiotics for at least a year. It took several years to even identify the disease and then another 6 months or more to identify which antibiotics would respond to her strain of MAC. It is similar to tuberculosis. When we got the results we found that she was allergic to all but one of the antibiotics and thus not able to take the full regimen to successfully treat the disease. When we originally purchased the product we checked the bag for instructions on usage and safety precautions. We even looked at the website for the product and found that the original Material Safety Data Sheet MSDS made no mention of the fact that masks were required due to the inclusion of bird droppings in the product which was a potting soil. We noticed one day in a safety notice about this product that it now stated that masks were required to prevent respiratory problems. I believe the company knew all along the possibility that its product could do harm to the customer’s lungs but did not post the appropriate warnings for fear of losing

sales. Can a class action suit be brought against them?

Asked on February 12, 2018 under Personal Injury, Florida

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

A class action suit has to be approved by a judge.  It requires numerous plaintiffs and common questions of law and fact.
Your wife can sue the manufacturer and seller (store where the product was purchased) for negligence and strict liability without a class action.
Prior to filing a lawsuit, it may be possible to settle the case with the insurance carriers for the manufacturer and seller.  Your wife's claims filed with both insurance carriers should include her medical bills, medical reports, and documentation of wage loss.
Compensation for the medical bills is straight reimbursement.  The medical reports document her injury and are used to determine compensation for pain and suffering which is an amount in addition to the medical bills.  Compensation for wage loss is straight reimbursement.
If the case is settled with the insurance carriers for both the manufacturer and seller, NO lawsuit is filed.
If your wife is dissatisfied with settlement offers from the insurance carriers, she should reject the settlement offers and file a lawsuit for negligence and strict liability.  If the case settles with one but not both parties (manufacturer and seller), only name the party with whom the case has NOT settled as a defendant in the lawsuit.
Negligence on the part of the manufacturer is the failure to exercise due care to produce a product that is not defective.  This also includes failure to provide adequate warnings.  
Strict liability imposes liability whether or not due care was exercised.
The seller (store where the item was purchased) is liable even if it could not have known the product was defective or failed to provide adequate warnings.
If the case is NOT settled, your wife's lawsuit must be filed prior to the expiration of the applicable statute of limitations or she will lose her rights forever in the matter.


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