Marketing Defects Can Kill: The Texas Weevil-Cide Case
November 6th, 2017
If you’re not in the legal profession, the idea of a marketing defect lawsuit probably sounds strange—perhaps even frivolous. However, marketing defect suits aren’t about ineffective marketing or overselling a product. Marketing defect claims arise in a product liability suit when failure to provide adequate warnings or instructions for safe use results in harm to the purchaser or others. Often, this type of claim is described as a “failure to warn” case.
A product liability lawsuit filed by a northern Texas family recently illustrates the dangers of inadequate warnings and the type of harm that may lead to a marketing defect claim.
Texas Couple Sues Pesticide Manufacturer after Poisoning Death of Four Children
Last January, a Potter County father used Weevil-Cide under the house where his family resided. The product, a commercial-grade pesticide, included several warnings on its label, including a notice that the product should be used only by a Certified Applicator or someone working under the direct supervision of a Certified Applicator. Most significantly, the label included a bold, all-caps statement prohibiting use of the product within 100 feet of a building where humans or domestic animals dwell.
Unfortunately, these warnings were printed only in English, a language the plaintiff does not speak. Instead, the label contained a small warning, in regular type amidst several lines of bold-faced, all-caps, large-sized and red warnings in English, that cautioned non-English speakers to have the label explained to them before using the product.
Four of the couple’s children, aged 7-17, died from exposure to toxic fumes. Several others present in the home were hospitalized, but survived.
It remains for the Potter County Court to determine whether including a warning that non-English-speaking users should have the label translated before proceeding constitutes an adequate warning. However, the tragic outcome in this case serves to illustrate just how serious the impact of a marketing defect can be.
What is a Marketing Defect Under Texas Law?
A marketing defect in a product exists when the product manufacturer places the product into the stream of commerce but:
- fails to provide important warnings, or provides warnings that are inadequate,
- fails to provide instructions for safe use of the product, or provides inadequate instructions,
- misleads consumers into believing that the product is safer than it is, or;
- represents that the product is safe for uses that are in fact unsafe.
A product liability claim based upon a marketing defect may be filed alone, or in combination with other product liability claims.
The Impact of Marketing Defect Cases
One of the highest profile failure to warn cases in the U.S. resulted in a 2002 verdict against cigarette manufacturer Philip Morris for failure to warn of the risks associated with smoking. The plaintiff in that case was a 67-year-old patient who had been smoking for 50 years, beginning long before mandatory warnings and public information campaigns ensured that the public had information about the health risks associated with cigarette smoking.
Public perception is often that both warning labels and product liability suits go too far. While it’s easy to laugh at the occasional “don’t grab knife by the blade” type warning on products we purchase or roll your eyes at the idea that McDonald’s should have warned customers that eating Big Macs on a regular basis wasn’t healthy, clear, adequate warnings and instructions save lives. Manufacturing defect claims, like other types of product liability claims, can have a significant impact on labeling practices and, thus, consumer safety.
Product Liability Claims are Complicated
When you’ve been injured by a defective product or because a manufacturer or seller failed to provide appropriate warnings or instructions, it can be difficult to know how to move forward. Product liability cases are complex, and generally require a significant investment of resources. This is understandably daunting to most people, particularly while they are dealing with the impact of a serious injury or the loss of a loved one.
A law firm with a background in product liability claims can help by:
- Assessing available claims
- Identifying possible responsible parties
- Retaining experts and investigators to build your case
- Managing complicated procedural requirements
- Building a strong case on your behalf
You don’t have to go it alone. Call 800-298-0111 right now to schedule a free consultation and learn more about how we can put our experience to work for you.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.