When a medical goods manufacturer issues a consumer goods recall for defective products, you might imagine retailers pulling the items in question from store shelves. And rightfully so. Retailers are legally responsible for ensuring products they sell are free from risk when used correctly.

Most medical devices and products work as intended and help patients recover from illnesses and injuries. However, defective medical products do sometimes cause severe injuries and death. For this reason, if a retailer sells a recalled medical product, the retailer can be liable for negligence. Likewise, if a retailer sells hazardous products without instructing buyers how to operate them safely, they may be negligent. In both cases, consumers can hold the retailer responsible for any injuries or losses via a product liability claim.

But what happens when a doctor knows a medical device is defective and uses it when treating the patient anyway? The answer is that the doctor can be held accountable under theories of medical malpractice, and the product retailer can be held responsible under theories of product liability. Of course, numerous differences exist between these two types of legal actions. And when it comes to faulty medical products, product liability and medical malpractice are complex areas of law that may overlap. For these reasons, it’s best to retain an experienced attorney to investigate your claim. A lawyer knowledgeable in both product liability and medical malpractice law can parse out the facts and help you decide on your best course of action.

Defective Product Lawsuits

When a retailer sells a medical product, it is implied that they first ensured the product is safe for use. If the product is defective and injures you, you may have a product liability lawsuit. In New Jersey, there are elements you must prove in a product liability lawsuit against a retailer of medical products. However, the elements will differ depending on your product liability claim. Plaintiffs can sue the retailer for their injuries and damages in three different ways.


In general, to bring a successful retail liability lawsuit against a negligent retailer, the plaintiff must prove that:

  • The plaintiff used the product in its intended way,
  • The product the plaintiff used was defective (design defect, manufacturing defect, or failure to warn),
  • The defective product directly caused the injury,
  • The plaintiff suffered an injury and financial losses, and
  • The retailer’s negligence in selling the product led to the plaintiff’s injuries.

One example is when a retailer sells a medical device recalled by the Consumer Product Safety Commission (CPSC). In this case, the retailer may be negligent for failing to remove the product from its shelves or inventory.

Strict Liability

In a strict liability lawsuit, the plaintiff does not have to prove that the defendant was negligent. In this case, a product is considered defective if, at the time it left the defendant’s control, it lacked the necessary elements to make it safe for its intended use or contained a feature that made it unsafe for its intended use.

In a strict liability case, a plaintiff must show that:

  • The retailer sold the product in a condition considered unreasonably dangerous,
  • The retailer did so with the intention and expectation that the product would reach the consumer in its defective form,
  • The plaintiff used the product in its intended way, and
  • The plaintiff was harmed or injured by the defective product.

If a plaintiff can prove all four elements, the defendant may be liable for damages even if they took all possible precautions and care in the product’s sale.

Breach of Warranty

Warranties promise consumers a certain product quality, safety, and reliability level. For example, a consumer who buys a car from a dealership may reasonably assume the vehicle is defect-free. It’s also reasonable for the consumer to assume the dealer corrected any recall issues. If a consumer is then injured in a car accident because of a defective part, they could sue the car dealership for breach of warranty.

When it comes to proving all three claims, the burden of proving the retailer’s liability falls on the injured victim. This is one of many reasons to consult with a knowledgeable lawyer. An attorney experienced in medical malpractice and product liability can also investigate whether the retailer knew critical information about the defective medical product’s manufacturing and distribution before selling it to the consumer.

Types of Product Liability Claims

Product liability claims against a retailer are usually divided into three categories:

  • Design Defects—These occur when there is an inherent defect in the product’s design, not its manufacturing. One example is an airbag in a vehicle that deploys with too much force, injuring the driver. 
  • Manufacturing Defects—These occur during the product’s creation and result in a deviation from the original design that makes the product dangerous for the consumer. An example is a missing part that causes a product to break and injure someone.
  • Failure to Warn—A failure to warn defect occurs when a hazardous product lacks a user manual or warning label and injures someone. One example is a medication known to cause drowsiness that doesn’t contain a warning label disclosing that it does. If a patient takes the medication, drives, and is in a car accident because the medicine caused sleepiness, they may have a product liability case. 

Medical product liability claims can be complicated and may overlap with medical malpractice claims. For this reason, it’s essential to consult with an experienced lawyer as soon as you suspect a defective medical product caused your injury or illness.

O’Connor, Parsons, Lane & Noble Can Help

If you or someone you love suffered a serious injury from a defective medical product, O’Connor, Parsons, Lane & Noble can help you obtain the justice you deserve. We are well versed in medical malpractice and product liability law and have won numerous high-value settlements and verdicts. Our award-winning attorneys are eager to speak with you and will fight for your rights. Call us for your free consultation.

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