Overview
Hedrick Gardner’s Products Liability Practice Group combines decades of experience defending manufacturers, distributors, and retailers in claims for bodily injury and wrongful death, property loss, and economic loss. Our attorneys have a deep commitment to serving our clients, and providing them with guidance and support that begins prior to litigation during product recalls and loss investigation, and continues through discovery, dispositive motions and trial.

We have defended matters in virtually every county in North Carolina as well as all three federal courts in North Carolina, the three specialized Business Courts in North Carolina, and the Fourth Circuit Court of Appeals.  Our lawyers have also tried to verdict cases in Virginia, South Carolina, Alabama, Arkansas, Oklahoma, and Puerto Rico. Additionally, lawyers in the Products Liability and Life Sciences Practice Group have expertise as national counsel in medical device litigation, multi-district litigation, and class action defense.

Products liability law in North Carolina is primarily governed by statute, specifically by Chapter 99B of the North Carolina General Statutes, which begins by confirming that North Carolina does not adhere to the strict liability standard in products liability cases, as do most other states.  Read more.

Representative Matters

Cases or matters referenced are for illustrative purposes only, and do not represent the lawyer’s or law firm’s entire record. Each case is unique and must be evaluated on its own merits. The outcome of a particular case cannot be predicted based upon a lawyer’s or law firm’s past results. Prior results do not guarantee a similar outcome.

We regularly represent manufacturers, distributors, and/or retailers of:

  • Automation, motion-control, and computerized manufacturing and processing products:
    • Lead counsel for international automation control manufacturer and its distributor in litigation arising from the ConAgra Foods Plant explosion which included three wrongful death claims and in excess of 30 severe personal injury claims filed in multiple lawsuits.  We were able to resolve the case for an extremely nominal settlement after establishing the lack of defect in our clients’ products and no viable theory of liability against our clients.
    • Lead counsel for manufacturer of an industrial conveyor system that allegedly caused injury to plaintiff rendering her a paraplegic.  Case settled prior to trial after extensive discovery.
    • Lead counsel for owner of a dump truck lift that collapsed and caused extensive damage to plaintiff’s dump truck.  (Case settled at mediation.)
  • Recreational products:
    • Lead counsel for manufacturer of tree stick stand used to hunt deer with respect to Plaintiff’s claim of negligence, breach of warranty, and design defect arising out of failure of cam buckle strap on strap of stand causing plaintiff to fall from tree during use and fracture his spine.  Plaintiff dismissed his case pending in United States District Court for the Western District of North Carolina following written discovery served on Plaintiff and prior to the deposition of Plaintiff’s expert witness.
    • Representation of national retailer in litigation alleging design and manufacturing defects in sporting goods product and claims for inadequate product warnings.  Product allegedly failed during normal use by the plaintiff, causing significant permanent vision loss.  (Case settled immediately before trial after extensive expert testimony failed to support product defect claims.)
  • Consumer products:
    • Lead counsel for the manufacturer of a portable electric heater in litigation arising from a fire that took the lives of two small children.  Allegations were that the heater was negligently designed and did not contain proper safety mechanisms that would turn the appliance off in the event it tipped over.  Through expert testimony, we were able to establish that the heater was manufactured in accordance with all safety regulations and furthermore established that there was no evidence to support the contention that the heater tipped over and that the cause and origin investigation by local authorities was not conducted in accordance with standard NFPA protocol.
    • Represented a national manufacturer of marine recreational products as part of national litigation involving personal injury resulting from the use of a “Kite Tube”.  The product was pulled behind speed boats and then raised into the air as the boat reached certain speeds.    Allegations against client including claims of inadequate or incomplete warnings, manufacturing defect and breach of express and implied warranties.  The case was resolved as part of a global settlement following the filing of Chapter 7 Bankruptcy by the client.
    • Lead counsel for manufacturer of a clasp on a dog leash that broke and blinded plaintiff in one eye.  (Case settled prior to trial after extensive discovery.)
  • Electrical products and components
  • Industrial machines, equipment and components:
    • Lead counsel for manufacturer of diamond saw blade in connection with worker’s third party action against manufacturer for severe personal injury sustained following worker’s severe hand injury sustained from use of client’s saw blade in conjunction with Mikita angle grinder.  Claimant did not file a lawsuit after testing of the angle grinder revealed that claimant was using the angle grinder improperly and installed the saw blade backwards.
    • Lead counsel for manufacturer of temperature and pressure relief valve on gas hot water heater in custom designed house of National Hockey League player in North Carolina state court action following flood of house.  Subrogated property carrier alleged negligence, breach of warranty, and a design defect on the part of our client proximately caused a flood after temperature and pressure relief valve allegedly failed and hot water heater continuously flooded house from the attic to the basement.
    • Lead counsel for mechanical and structural grade steel tubing manufacturer in North Carolina state court action alleging negligence, breach of warranty, and design defect arising out of Plaintiff’s fractured spine sustained after tubing component of hammock collapsed when Plaintiff sat in hammock.  We obtained a favorable result for our client in this matter after destructive and chemical testing disclosed a substantial likelihood that that the failed tube at issue was not a tube our client manufactured.
    • Lead counselor for distributor of boring equipment attached to a tractor to bore holes under roads, driveways, or sidewalks.  Plaintiff suffered serious injuries to an arm and hand while operating the equipment.  (Obtained summary judgment at the trial court level, and eventually settled the case for an extremely nominal amount during an appellate mediation.)
  • Pharmaceutical drugs and medical devices:
    • Lead counsel for a manufacturer of a medical device in a wrongful death action concerning a minor child.  Allegations are that the child’s death was caused by the failure of several products, including our client’s Pulse Oximeter, that were intended to warn child’s caregivers in the event a ventilation device failed and the child’s blood oxygen level dropped.  Case will involve extensive use of expert witnesses including those in the fields of product design, electrical and life expectancy.
  • Food products:
    • Lead counsel for distributor of frozen fish filets, which were alleged to have caused scromboid fish poisoning to a restaurant customer.  The case resolved following discovery for a nominal amount.
    • Lead counsel for local restaurant chain in case involving a claimant who allegedly bit into a bone particle in hamburger.  The case resolved following discovery for a nominal amount.

Our lawyers also represent:

  • Chemical companies:
    • Lead counsel for manufacturer of liquid drain opener following an incident where the claimant received burns to his arms and legs while working on plumbing.  The claim was resolved prior to litigation following meetings with the claimant and his attorney.
    • Representation of an international manufacturer of cast polypropylene films in the United States District Court for the Western District of North Carolina in connection with Plaintiff’s claims of improper design of film, breach of contract, and breach of warranty resulting from our client’s supply of allegedly defective automobile transit tape causing tape melt on several thousand new automobiles and alleged damages of $800,000.00.  Case settled after extensive written and oral fact and expert discovery.
  • Clients in fire and explosion litigation:
    • Lead counsel for manufacturer of air brake control valve on freight trailer that allegedly failed during shipment of clothing causing cargo fire and alleged damage in excess of $1,000,000.00.  Following destructive testing of the air brake control valve, the subrogated property carrier did not file a lawsuit to recover the proceeds of the property policy insuring the cargo.
    • Lead counsel for retail seller of gas propane logs in North Carolina state court action alleging negligence, breach of warranty, and design defects in logs after Plaintiffs’ home destroyed by fire with alleged cause and origin from gas propane logs purchased from client.
    • Lead counsel for mobile home manufacturer in consolidated cases involving 6 claims for wrongful death and 5 claims for bodily injury resulting from a mobile home fire.
    • Representation of distributor of fuel delivery control products in litigation alleging claims for negligence, breach of warranty, and inadequate warning or instruction arising out of propane truck explosion resulting in two fatalities and serious personal injuries.  All claims against the client were dismissed after fact and expert witness depositions.
    • Representation of furnace manufacturer in case alleging product and component failures resulting in fire and significant property damage.  Claims against client resolved for nominal amount after discovery and expert depositions.
    • Lead counsel for international industrial equipment manufacturer and its distributor in litigation arising from the West Pharmaceuticals plant explosion which included six wrongful death claims and dozens of claims for personal injury.  Case against client was resolved for nominal settlement payment before the end of discovery and depositions.
    • Lead counsel for installer of gas furnace in extremely serious case brought by plaintiff after gas explosion and fire in her rental home resulted in burns over 60% of her body.  Case settled at pre-suit mediation for substantially less than the policy limits.
    • Lead counsel for defendant apartment renter in large lawsuit resulting from an extensive fire at defendant’s apartment complex. Plaintiff alleged that fire was due to defendant’s boyfriend failing to extinguish a cigarette on the balcony. Developed alternative theory as to how fire could have started through expert witnesses and critical review of plaintiff’s evidence.  Case settled prior to trial at mediation.
    • Lead counsel for manufacturer of tree stick stand used to hunt deer with respect Plaintiff’s claim of negligence, breach of warranty, and design defect arising out of failure of cam buckle strap on strap of stand causing plaintiff to fall from tree during use and fracture his spine.  Plaintiff dismissed his case pending in United States District Court for the Western District of North Carolina following written discovery served on Plaintiff and prior to the deposition of Plaintiff’s expert witness.
    • Lead counsel for manufacturer of air brake control valve on freight trailer that allegedly failed during shipment of clothing causing cargo fire and alleged damage in excess of $1,000,000.00.  Following destructive testing of the air brake control valve, the subrogated property carrier did not file a lawsuit to recover the proceeds of the property policy insuring the cargo.
    • Lead counsel for manufacturer of diamond saw blade in connection with worker’s third party action against manufacturer for severe personal injury sustained following worker’s severe hand injury sustained from use of client’s saw blade in conjunction with Mikita angle grinder.  Claimant did not file a lawsuit after testing of the angle grinder revealed that claimant was using the angle grinder improperly and installed the saw blade backwards.
    • Lead counsel for retail seller of gas propane logs in North Carolina state court action alleging negligence, breach of warranty, and design defects in logs after Plaintiffs’ home destroyed by fire with alleged cause and origin from gas propane logs purchased from client.
    • Lead counsel for manufacturer of temperature and pressure relief valve on gas hot water heater in custom designed house of National Hockey League player in North Carolina state court action following flood of house.  Subrogated property carrier alleged negligence, breach of warranty, and a design defect on the part of our client proximately caused a flood after temperature and pressure relief valve allegedly failed and hot water heater continuously flooded house from the attic to the basement.
    • Lead counsel for mechanical and structural grade steel tubing manufacturer in North Carolina state court action alleging negligence, breach of warranty, and design defect arising out of Plaintiff’s fractured spine sustained after tubing component of hammock collapsed when Plaintiff sat in hammock.  We obtained a favorable result for our client in this matter after destructive and chemical testing disclosed a substantial likelihood that that the failed tube at issue was not a tube our client manufactured.
    • Lead counsel for mobile home manufacturer in consolidated cases involving 6 claims for wrongful death and 5 claims for bodily injury resulting from a mobile home fire.
    • Lead counsel for international automation control manufacturer and its distributor in litigation arising from the ConAgra Foods Plant explosion which included three wrongful death claims and in excess of 30 severe personal injury claims filed in multiple lawsuits.  Case involved the retention of multiple expert witnesses to evaluate products and issues relating to cause and origin of the explosion.  We were able to resolve the case for an extremely nominal settlement after establishing the lack of defect in our clients’ products and no viable theory of liability against our clients.
    • Lead counsel for a manufacturer of a medical device in a wrongful death action concerning a minor child.  Allegations are that the child’s death was caused by the failure of several products, including our client’s Pulse Oximeter,  that were intended to warn child’s caregivers in the event a ventilation device failed and the child’s blood oxygen level dropped.  Case will involve extensive use of expert witnesses including those in the fields of product design, electrical and life expectancy.
    • Lead counsel for the manufacturer of a portable electric heater in litigation arising from a fire that took the lives of two small children.  Allegations were that the heater was negligently designed and did not contain proper safety mechanisms that would turn the appliance off in the event it tipped over.  Through expert testimony, we were able to establish that the heater was manufactured in accordance with all safety regulations and furthermore established that there was no evidence to support the contention that the heater tipped over and that the cause and origin investigation by local authorities was not conducted in accordance with standard NFPA protocol.
FAQ

Q:  Does North Carolina follow the “economic loss rule?”

Yes.  With few exceptions, negligence claims are barred where the only damage sustained is damage to the product itself.  In that situation, claimants are limited to claims for breach of contract or breach of warranty.

Q:  Does North Carolina recognize strict liability in products liability cases?

No.  Although most other states adhere to strict liability in products liability cases, North Carolina is one of the few states that does not.  Instead, products liability cases in North Carolina are governed by Chapter 99B of the North Carolina General Statutes, which is largely based on principles of negligence.

Q:  Can a distributor or retailer face liability for a products liability claim where the distributor was not involved with the design or manufacture of the product?

If the product remained in a sealed container throughout the time it was possessed by the distributor or retailer, then the “sealed container defense” found in N.C. Gen. Stat. §99B-2(a) insulates the distributor or retailer from liability. However, this defense only applies when the manufacturer or distributor is subject to jurisdiction on the North Carolina courts.

Q:  What are the consequences of a product being designed or manufactured in a foreign country?

The original product manufacturer is not subject to jurisdiction of U.S. federal and state courts in many of the cases in which products are manufactured in foreign countries. In such an event and absent contractual language allocating the risk of liability in an indemnification clause or otherwise, the importer steps into the shoes of the foreign designer/manufacturer and faces liability just as the designer/manufacturer would if based in the U.S.

Q:  What is the statute of limitations applicable to products liability claims in North Carolina?

Products liability claims are not viable if filed more than three years after the claimant knew or should have known of the alleged loss.

Q:  Is there a statute of repose applicable to product liability claims in North Carolina?

Yes.  North Carolina recently modified its  statute of repose to state that products liability claims are barred if filed more than 12 years after the product was initially purchased for use or consumption.  In the past, the applicable statute of repose period was six years.

Q:  In what contexts is preemption applicable in products liability cases?

Preemption may act as a defense to state law claims where a federal statutory scheme addresses standards applicable to products in a certain field.  For example, pharmaceuticals and medical devices that go through the FDA’s extensive pre-market testing are immune from product liability claims under state law.

Q:  Are products liability cases removable to federal court?

In many cases, yes.  Product designers and manufacturers often have grounds for removing cases to federal court based on diversity jurisdiction, given that product designers and manufacturers are often based in different states than the home state of the claimant.

Q:  What are the most common and significant defenses to product liability claims?

Common defenses to products liability claims include contributory negligence, product alteration/modification, and open/obvious hazard.

Q:  Can breach of warranty claims be brought against a manufacturer by a remote end user?

Yes.  According to N.C. Gen. Stat. § 99B-2(b), an end user may bring a breach of implied warranty claim against a manufacturer even though there is no privity between the manufacturer and end user (i.e., lack of privity of contract is not a defense to product liability actions in North Carolina).