Product liability has long been the subject of lawsuits.  Many of us remember the days when McDonald’s coffee didn’t have the disclaimer: Caution.  Contents may be hot embossed on its lid, but a 1992 lawsuit changed that.  Some called the suit frivolous.  After all, when one orders coffee one should expect it to be hot unless, of course, they’ve ordered iced coffee.  But the jury disagreed, awarding a total of roughly $2.9 million to the plaintiff.

Recently, The Law Blog posted a report of a scientific study linking lead exposure in childhood to violent behavior later in life.  Reading that study, we wondered whether in the next decade or two we’ll begin to see lawsuits from the families of toddlers who sucked too long on their lead paint-tainted toys before they were recalled.  Our guess is yes, there will be lawsuits but we doubt they will be winnable.  Here’s why.
 
The difference here would be proving knowledge of the potential harm.  In the McDonald’s case, it was shown that the fast-food chain regularly maintained coffee temperatures 45 degrees to 55 degrees higher than coffee typically served at home, and that in the decade that preceded the lawsuit, McDonald’s had received roughly 700 claims related to coffee burns.
 
In the tainted toy scenarios, the companies manufacturing and/or distributing the toys thus far have not been shown to have had specific knowledge that lead paint was used, and they cooperated with the Consumer Products Safety Commission in recall and replacement efforts.  In addition, the earlier cited study considered children exposed to lead paint as part of their daily living conditions.  We believe it would be nearly impossible to link the relatively low-levels and short-term lead exposure from the toys to violence without further scientific study.
 
In terms of product liability in criminal defense versus civil litigation, there was a recent Illinois case in which a defendant attempted to blame a product – medication he was prescribed and taking – as a causal factor for his criminal behavior.  The jury didn’t buy it and the defendant was convicted.  A lawsuit against the pharmaceutical company and the prescribing physician, however, wouldn’t have surprised us.
 
Before moving forward with a civil action, read our post that considers the question When does it make sense to file a lawsuit?