William Sweeney

Many people have died because a pharmaceutical company rushed an unsafe drug to market without testing it thoroughly. Others have died after consuming tainted food that was improperly prepared or not adequately inspected. Additional examples of unsafe products include vehicles and machines that are poorly designed or manufactured with a defect.

A products liability lawsuit can result from the loss of a loved one when the fatality is caused by negligence in the design, manufacture, or testing of a product. If someone is injured or dies as a result of a defective product, they may have grounds to file a lawsuit against the manufacturer, wholesaler, or distributer, depending on the type of defect. The two primary categories of product defects under federal law are design defects and manufacturing defects.


Manufacturing defects, which are caused by an error in assembly, are not intended to be part of the product. This type of defect will typically only be found in a small percentage of a company's manufactured goods. Based on the theory of strict liability, a manufacturer is liable for any manufacturing defects that occur as a result of faulty construction, regardless of whether they took care throughout the manufacturing process. The plaintiff needs to prove that the defect allegedly responsible for their injury or death was present at the time of departure from the factory where the product was produced.


A design defect is a flaw in the original design of a product that causes it to be unreasonably dangerous and creates a hazard for potential users. This type of defect will typically be found in all of a company's manufactured products.


Under California Code of Civil Procedure §377.60, a wrongful death lawsuit may be filed by the personal representative of the deceased's estate. The damages that are recoverable according to statute are, under all the circumstances of the case, such damages as may be just, but may not include damages recoverable under California Code of Civil Procedure §377.34 (See Deceased’s Survival Action damages below). Courts have interpreted the wrongful death statute to mean that the family can ask for compensation due to loss of support, loss of services, funeral and burial expenses, loss of companionship and sexual cohabitation. However, it is important to note that punitive damages are not recoverable under the wrongful death statute.


A survival cause of action can be filed by the estate's personal representative. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. If the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Under California Code of Civil Procedure §377.30, a cause of action that survives the death of a person passes to the decedent's successor in interest and is enforceable by the decedent's personal representative. In the typical survivor action, the damages recoverable by a personal representative on a decedent's cause of action include "the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement."

Essentially, the survival statute allows one to "step into the shoes" of the deceased and recover the damages the deceased person would have been entitled to had they lived, including medical expenses and lost wages, as well as penalties, punitive or exemplary damages.

More specifically, damages that can be recovered by the estate in the decedent's survival action are limited to "the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." (Emphasis added). Therefore, punitive damage claims can survive the death of the injured party. However, that is true only if the decedent survived the accident, however briefly, or if property of the decedent was damaged or lost before death.


While no amount of money will bring back a loved one, strong and competent legal representation may help to offer closure and to ease the financial stress involved after such a loss. To speak with me during a free initial consultation, call me, William K. Sweeney, toll free at 800-575-9610 or locally at 760-989-4820. You can also send me an email by completing an online contact form. I represent clients throughout the state of California and others who reside outside the state who require counsel for interests in California.

DISCLAIMER: The information contained herein and your receipt or use of it (1) is not provided in the course of and does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter. The hiring of an attorney is an important decision that should not be based solely upon website communications or advertisements. Use of and access to or any of the e-mail links contained within the site do not create an attorney-client relationship with the user or browser.