How do I proceed on a product liability claim regarding an extreme allergic reaction to a laundry detergent?

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How do I proceed on a product liability claim regarding an extreme allergic reaction to a laundry detergent?

I had a horrible allergic reaction to a laundry detergent – skin painfully itchy and mental anguish. I am still inflamed throughout my whole body and it’s going into the second month. I suffer from constant bleeding and itching with loss of sleep. Creams and sleeping pills prescribed have only put a dent in my pain. Laundry detergent company has refused to acknowledge my problem by only sending me a carbon copy response that is sent to all customer complaints. I have been to 2 doctors for this rash and itching and fear I am being left with: (1) no cure; and (2) permanent scarring. Do I have a case? If so, how do I start?

Asked on November 26, 2010 under Personal Injury, Ohio

Answers:

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

Answered 11 years ago | Contributor

When you complete your medical treatment and are released by the doctor or are declared permanent and stationary by the doctor which means that no further improvement is anticipated, obtain your medical reports, medical bills and document any wage loss.  The medical reports will document the nature and extent of your injury and will be used to determine the amount of compensation you receive for pain and suffering.  Compensation for pain and suffering is an amount in addition to your medical bills.  Compensation for the medical bills and wage loss is straight reimbursement.

Your product liability case includes claims against the manufacturer of the detergent and seller (store where you purchased the product).  If you are dissatisfied with settlement offers from the  insurance carriers of the manufacturer and the store, file your lawsuit.  A products liability claim would include separate causes of action (claims) in your lawsuit for negligence and strict liability.  Negligence is based on the failure to exercise due care (that degree of care that a reasonable manufacturer/seller would have exercised to prevent foreseeable injury).  As for the manufacturer, if a warning about an allergic reaction to the product would have been what a reasonable manufacturer would have printed on the package to warn consumers to prevent injury, you have established breach of the duty of care by the manufacturer in your negligence claim.  In order to establish negligence, you will also have to establish  that the breach of duty of care was the actual and proximate cause of your injury.  Actual cause means but for the warning would you have been injured?  If the answer is no, then you have established actual cause.  Proximate cause means were there any unforeseeable intervening events which caused your injury and would relieve the manufacturer of liability.  If the answer is no, you have established proximate cause and the manufacturer  is liable for negligence.  Your damages would be as mentioned above (medical bills, compensation for pain and suffering, and wage loss).

Strict liability means that even if the manufacturer exercised due care, the manufacturer is still liable for the injuries you sustained from the defective product.

The seller of the product is liable under strict liability even though the product was in a sealed package and the seller could not have determined that the product was defective.

If you are unable to settle the case with the insurance carriers for the manufacturer and store, you will need to file your lawsuit prior to the expiration of the statute of limitations or you will lose your rights forever in the matter.  If you settle the case with one of the defendants, your lawsuit would not name that defendant, but would still proceed against the other defendant.  For example, if you settled the case with the store where the product was purchased, but not the manufacturer, your case would only proceed against the manufacturer. 

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Whether you had a case depends on whether there was something defective about the product: that is, whether it was designed or manufactured improperly (e.g. it was contaminated during manufactur) or had inadquate instructions or safety warnings. Inadquate warnings, in this case, means judged by a standard of "reasonableness"--the warnings don't need to warn against every possible harm, only those that are reasonably foreseeable. For example, say that you had a very rare allergic reaction to a properly formulated, properly manufactued producut. In that case, it is likely that the manufacturer is NOT liable, since they do not have  to guard against every possible ill or harm, and if your reaction is sufficiently rare, it would not be reasonable require them to put a warning on the box, jar, etc. On the other hand, if your reaction is moderately common one, they might have had to warn against it, the way food manufacturers often warn against peanut allergies. Or if the problem was too high a concentration of a certain ingredient was used--a dangerously high concentration--that could give rise to liability. So the manufactur must have basically done something wrong in developing, manufacturing, and/or labeling/instructing about the product to be liable; if it was instead that you had horribly bad luck in having a violent reaction to a product that 99.9% of people can use safely, they might not be responsible.

The best way to proceed is to discuss the matter with experienced product liability counsel, who can evaluate the situation and advise as to whether you may have a case and what it might be worth.


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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