I recently received a message from a woman inquiring whether she had a valid defective products lawsuit because she bought a brownie that had an unidentified, hard foreign substance in it, and she was upset. She hadn't even cracked a tooth.


As you might well surmise, there are several problems with this fact scenario.


First, if you haven't been hurt, you have no defective products case - at least not in New York. Leaving aside for the moment that suffering actual, demonstrable damages is a technical prerequisite to a valid claim, consider the following: when a judge will ultimately ask, "So what happened to you?" your answer has to be something significantly more than "Nothing really. I was just really upset."


Second, if you can't identify what caused your injury, you can't prove your case. Stated differently, the plaintiff bears the burden of proving both that the defendant's product was defective, and that the defect in the defendant's product caused her injuries. (For additional information on this topic, please see "The 5 Ways to Prove Your Defective Products Lawsuit Under New York Law"). In this instance, the woman didn't know what the foreign substance was, and therefore, she had no way of proving that the defendant should be responsible for it.


In truth, the first prong bothers me far more than the second. Why would anyone think that they might have a claim worth pursuing if they weren't actually hurt? Such a case, assuming a lawyer would be willing to take such a case on, would - at least in my book - rank as a frivolous lawsuit.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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