We are picking up our discussion of the legal theories of product liability. As we explained, the plaintiff — or the plaintiff’s attorney — must answer “yes” to at least one of four questions about the claim. The first two, reviewed in our April 23 post, addressed negligence and warranties.
The subject came up in the wake of the “60 Minutes” exposé on laminate flooring sold by Lumber Liquidators Inc. This case is unusual, because the trouble hasn’t stopped with the laminate flooring.
After the story aired, the company offered free test kits to consumers that were worried about unsafe levels of formaldehyde in their flooring. A California lawsuit, however, claims that the test kits were lacking: The tests did not meet the standards set by the state’s air quality regulators.
The same legal theories would apply in a test kit lawsuit. The claimant would have to answer “yes” to the two questions discussed in our last post and the following two, as well:
Was there misrepresentation about any potential safety hazards linked to a product? This is where claims of false advertising fall, the “snake oil” claim, when the consumer pays for an elixir that not only fails to cure his gout but causes an ulcer.
Finally, was the product unreasonably dangerous? This is strict liability. Here, there is no negligence to speak of, but the manufacturer, distributor and merchant may be liable simply for putting the product into the stream of commerce. The courts — California courts, in particular — adopted the theory of strict liability in order to protect the public at large from dangerous products.
Lumber Liquidators continues to respond that “60 Minutes” used an inappropriate testing method. The Consumer Product Safety Commission managed to remain neutral while saying that they would not be using the news show’s testing method; the agency says the method does not replicate how the laminate flooring is used in a home.
To date, the CPSC has not issued a recall or requested that Lumber Liquidators issue a voluntary recall.
Insurance Journal, “Lumber Liquidators Sued in California Over Formaldehyde Home Test Kits,” Pamela MacLean, April 1, 2015
The Free Dictionary, “Product Liability,” accessed April 17, 2015