What legal recourse does my son have bought some novelty contacts from a web site but had to go to the ER and was diagnosed with corneal abrasions?

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What legal recourse does my son have bought some novelty contacts from a web site but had to go to the ER and was diagnosed with corneal abrasions?

He said it was the worst pain he has felt in his life. They prescribed him painkillers but he was still in pain.

Asked on January 16, 2014 under Personal Injury, California

Answers:

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

Answered 7 years ago | Contributor

If your son is a minor, you will need to be appointed guardian ad litem to file a lawsuit on his behalf because a minor cannot file a lawsuit himself.  If your son is at least 18, he can file the lawsuit himself.

Your son can sue both the manufacturer of the contact lenses and the seller.  Both parties would be sued for negligence and strict liability.  Negligence is the failure to exercise due care (that degree of care that a reasonable manufacturer would have exercised to produce a product that is not defective).  The seller is liable whether or not the seller knew or could have known that the product was defective.

Negligence and strict liability are separate causes of actions (claims) in the lawsuit.  Strict liability is liability whether or not due care was exercised.

Your son's damages (the amount of compensation he is seeking in his lawsuit) should include the medical bills, pain and suffering and wage loss.  Compensation for the medical bills is straight reimbursement.  Compensation for pain and suffering is an amount in addition to the medical bills based on the medical reports which document the nature and extent of the injury.  Compensation for wage loss is straight reimbursement.

Prior to filing a lawsuit against the manufacturer and seller of the contact lenses, it may be possible to settle the case with their insurance carriers.  Your son's claim with each insurance carrier would include the medical bills, medical reports and documentation of wage loss as discussed above.  If the case is settled with the insurance carriers for both manufacturer and seller, NO lawsuit is filed.  If the case is settled with one but not both parties, only name the party (seller or manufacturer) with whom the case has not settled as a defendant in the lawsuit for negligence and strict liability.  If the case has not settled with the insurance carriers for either party, name both seller and manufacturer as defendants.

If your son is dissatisfied with settlement offers from the insurance carriers, reject the settlement offers and file the lawsuit.  If the case is NOT settled, the lawsuit for negligence and strict liability must be filed prior to the expiration of the applicable statute of limitations or your son will lose his rights forever in the matter.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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