A “marketing defect” can be the basis of a products liability lawsuit when a manufacturer or seller does not warn a consumer about a dangerous characteristic of a particular product. Although not as common as other types of product liability suits, a serious example of this type of litigation is the Medtronic Infuse Bone Graft litigation. A product can be defective, even if a particular product does not meet the legal definition of being defective because of a design defect or a manufacturing defect. An injured person can establish the existence of a marketing defect by proving:
A risk of harm may arise from either the producer’s intended use or a reasonably anticipated use. What must be shown to prove a marketing defect is:
- knowledge of or foreseeability of a risk of by the product seller at the time the product is marketed,
- lack of a warning or instruction that makes the product unreasonably dangerous to the product’s consumer and
- link between the failure to warn and the product user’s injury.