Chapter 12 - Products Liability

statue of repose applicable to products liability actions in Texas

15 years; therefore, a plaintiff must file the products liability lawsuit before the end of 15 years after the date of sale of the product by the defendant, regardless of when the plaintiff's cause of action accrues (comes into existence)

product liability statute of limitations period under legal theory of strict liability

2 years after day cause of action accrues

Who may properly sue the manufacturer or seller of a defective product under the theory of negligence?

Any person who sustains injury or damage to other property as a result of the defective product

In tort law, how is risk of loss allocated?

By tort law, without parties' agreement

Plaintiff in misrepresentation - DTPA cases

Consumer (as defined under DTPA)

Plaintiff in breach of express or implied warranty - DTPA

Consumer, as defined under DTPA

DTPA

Deceptive Trade Practices Act

plaintiff's burden of proof in common-law fraud products liability cases

Defendant made a material representation [regarding the product] the representation was false when making the representation, the defendant knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion the defendant made the representation that the plaintiff act on it the plaintiff acted in reliance on the representation the plaintiff thereby suffered injury

Plaintiff's burden of proof in Breach of express warranty - UCC

Defendant-seller either: 1. made an express affirmation of fact or promise regarding the product; 2. gave an express description of the product; or 3. provided a sample or model of the product 1, 2, or 3 above became part of the basis of the bargain the buyer relied upon 1, 2, or 3 above the product failed to comply with 1, 2, or 3 above the buyer was injured by the product's failure to comply with 1, 2, or 3 above the failure was the proximate cause of the buyer's injury

Plaintiff in Breach of express warranty - UCC

Direct buyer of the product not a remote (subsequent) buyer of the product, unless the seller made the express warranty transferable to subsequent buyers (*TX legislature has left it up to the courts to decide, on case-by-case basis, whether persons other than direct buyers can sue for express or implied warranties)

Defendant-manufacturer in common-law negligence case (product liability)

Manufacturer of product or component when manufacturer: negligently designed or manufactured the product or component; failed to conduct a reasonable inspection of or test the finished product or component; and/or failed to package and ship the product or component in a reasonably safe manner and/or manufacturer that used defective component prepared by another when manufacturer... failed to take reasonable care to obtain the component from a reliable source; and/or failed to make a reasonable inspection of the component before incorporating it into the product

legal theories most applicable to other users

Negligence strict liability common-law fraud federal statute, depending on statute

Plaintiff in common-law negligence case (product liability)

Plaintiff (direct purchaser, remote purchaser, other reasonably foreseeable user of the product)

Plaintiff's burden of proof in breach of implied warranty of fitness for a particular purpose

The defendant sold the product to the plaintiff The defendant had reason to know: any particular purpose - that is, one that differed from ordinary use - for which the product was required at the time of contracting; and the buyer's reliance on the defendant's skill or judgment to select or furnish a suitable product the product was not fit for such particular purpose the plaintiff notified the defendant of the breach the plaintiff suffered injury

plaintiff's burden of proof in misrepresentation - DTPA cases

The plaintiff was a consumer The defendant used or employed a "false, misleading, or deceptive act or practice in the conduct of any trade or commerce," as defined by the DTPA the plaintiff relied on such act or practice to the plaintiff's detriment such act or practice was a producing cause of economic damages or mental anguish damages to the plaintiff

common legal theories for products liability actions in Texas:

Tort theories contract theories federal-law theories

In Texas, plaintiffs commonly assert breach-of-warranty actions under 1 of 2 statutes:

UCC DTPA

class certification requires proof of the following:

a common issue of law and fact exists among the class members the claims and defenses of the proposed representatives are typical of the claims and defenses of the other class members; so many potential claimants exist that it would be impractical to join them in one action as separate plaintiffs; the proposed representatives will fairly and adequately represent the interests of every member of the class; and the representatives will give adequate notice of the lawsuit to all potential class members (usually by mailing notices, placing ads in newspapers, and establishing websites)

Consumer definition under DTPA

a person or entity that sought or acquired, by purchase or lease, any goods or services (except business consumers with assets of $25 million or more)

express warranty

a seller's explicit representation (orally, in writing, or by way of a sample model) regarding the quality or condition of a good

foreseeable misuse design defect

absence of a design precaution protecting the plaintiff from dangers arising when the product is put to use other than intended by the manufacturer when that other use is reasonably foreseeable

safety feature design defect

absence of a safety feature when the expense of installing one would be relatively minimal compared to 1. the product's cost and 2. the magnitude of danger that exists without the safety feature

products liability action

any action or cause of action that is: against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage [and, under some theories, also pure economic loss] caused by a defective product

Defendant in breach of express or implied warranty - DTPA

any person or entity that breached an express or implied warranty relating to those goods or services

Defendant in misrepresentation - DTPA cases

any person or entity that engaged in a "false, misleading, or deceptive act or practice in the conduct of any trade or commerce"

plaintiff in common-law fraud products liability cases

any purchaser or user whom the defendant intends, or has reason to expect, to act in reliance upon the misrepresentation in the type of transaction at issue

In addition to Texas-law theories, a plaintiff in a product liability action may, under certain circumstances, sue under

applicable federal statutes, which may provide additional standards by which a product or its manufacturer may be measured and additional remedies

rationale of economic loss rule in Texas

avoid confusing tort law (which historically has focused on personal injury and property damages) and contract law (which historically has focused on pure economic loss)

Texas products liability actions - Contract theories

breach of express warranty - brought under UCC or DTPA breach of implied warranty - brought under UCC or DTPA

breach of implied warranty - UCC. 2 types of implied warranties

breach of warranty of merchantability breach of implied warranty of fitness for a particular purpose

Plaintiff in breach of implied warranty of fitness for a particular purpose

buyer of the product who relied on the defendant's skill or judgment to select or furnish a suitable product

In contract law, how is risk of loss allocated?

by parties' agreement

Texas products liability actions - federal-law theories

certain federal statutes, if applicable

Basic parameters of products liability are governed by

chapter 82, Texas Civil Practice and Remedies Code

fen-phen case

class of persons contracted heart-valve disease and/or pulmonary hypertension brought a products defect action against American Home Products (now Wyeth) regarding its weight-loss drugs collectively referred to as fen-phen. 2002, the court approved a 3.75 billion settlement on behalf of the plaintiffs who had suffered heart valve disease

comparative causation

common-law defense of pure comparative causation devised by the Texas Supreme Court to apply to strict liability actions

legal theories most applicable to defects not unreasonably endangering persons or other property

common-law fraud misrepresentation-DTPA express warranty implied warranty federal statute, depending on statute

legal theories most applicable to pure economic loss

common-law fraud misrepresentation-DTPA express warranty implied warranty federal statute, depending on statute

Texas products liability actions - tort theories

common-law negligence strict liability common-law fraud misrepresentations - brought under DTPA

examples of federal products liability or consumer-protect statutes

comprehensive environmental response, compensation, and liability act (CERCLA) consumer product safety act consumer product warranty act/Magnuson-Moss warranty act flammable fabrics act federal food, drug, and cosmetic act federal hazardous substances act household refrigerator safety act poison prevention act public health smoking act

design defect (generally)

condition that renders a product unreasonably dangerous as designed, taking into consideration its utility and the risk involved in its use. For a design defect to exist, there must have been a safer alternative design

Texas Deceptive Trade Practices-Consumer Protection Act (DTPA)

consumer-protection statute enabling consumers of goods or services to recover from defendants for misrepresentations and other deceptive trade practices without having to prove all the onerous elements of common-law fraud

certify the class

court order that the selected representative class members be permitted to sue on behalf of the entire class

second collision crashworthiness

courts have generally held that this collision is also reasonably foreseeable

consequential damages

damages that do not necessarily flow from that type of breach of warranty in question and are not anticipated to apply to all plaintiffs generally, but instead are peculiar ["special"] to the particular plaintiff

plaintiff's burden of proof with respect to common-law negligence

defendant was negligent in manufacturing, designing, or marketing the product such that at the time it left defendant, the product had a manufacturing defect, design defect, or marketing defect Defendant's negligence proximately caused the occurrence and/or plaintiff's injury in question

product liability statute of limitations period under legal theory of federal statute

depends on federal statute

manufacturing defect

deviation in a product's construction or quality from its specifications or planned output in a manner that renders is unreasonably dangerous

pure economic loss (benefit-of-the-bargain damages a/k/a contract damages) are normally calculated as follows:

difference between the value of the product as accepted by the buyer; and the value the product would have had if it had been as warranted

examples of pure economic losses in products liability cases

diminution in product's value (value as warranted [-] value as received) cost to repair or replace the product loss of profits caused by the product

plaintiff in breach of implied warranty of merchantability

direct buyer of the product any remote buyer of the product, per Texas case law

Plaintiff in strict liability products liability cases

direct purchaser remote purchaser any user of the product in its intended or reasonably foreseeable use who sustained personal injuries or damage to other property

examples of circumstances giving rise to the affirmative defense of disclaimer of warranty under both UCC and DTPA regarding breach of implied warranty of merchantability

disclaimer included word "merchantability" and, if in writing, was conspicuous

examples of circumstances giving rise to the affirmative defense of disclaimer of warranty under both UCC and DTPA regarding breach of implied warranty of fitness for a particular purpose

disclaimer must be in writing; and disclaimer must contain the words "there are no warranties which extend beyond the description on the face hereof"

in contract law, what types of loss are mainly involved?

economic loss

advantages of class actions

eliminates the need for each plaintiff to file an individual suit or be personally involved in the courtroom process prevents the court system from being overwhelmed by a myriad of suits allows individuals to be represented whose minimal recovery might have otherwise precluded them from finding an attorney

common arguments against strict liability

empirical evidence of strict liability's effect on product safety is lacking the pendulum has swung too far in favor of consumer protection and should reach a more moderate position so that manufacturers will not be unduly hampered in their efforts to meet consumer demands or to innovate with new products

not recoverable damages in Breach of express warranty - UCC; breach of implied warranty of merchantability - UCC; breach of implied warranty of fitness for a particular purpose - UCC; and breach of express or implied warranty - DTPA

exemplary (punitive) damages

legal theories applicable to failure to give UCC notice and disclaimer of warranty

express warranty, implied warranty, federal statute, depending on statute

2 types of warranties

express/implied

negligence (products liability)

failure to use ordinary care, that is, failing to do what a company of ordinary prudence would have done under the same or similar circumstances or doing that which a company of ordinary prudence would not have done under the same or similar circumstances

implied preemption

field preemption; conflict preemption

recoverable damages in misrepresentation - DTPA cases

for innocent violation: economic damages (defined by the DTPA as pecuniary damages, including cost of repair or replacement) for knowing violation: economic damages, up to 3 times that amount (treble damages, or statutory "additional" damages); and mental anguish damages For intentional violation: economic damages, up to 3 times that amount; and, mental anguish damages, up to 3 times that amount

with respect to marketing defect (a/k/a defective warning), when does duty to warn normally not exist

if the defendant either knew or should have known of the danger at the time it manufactured or sold the product. Obviousness of danger is a factor courts consider, but it does not necessarily preclude a duty to warn

exception to repose period is granted if

if the defendant expressly warranted in writing that the product had a useful safe life of longer than 15 years, the plaintiff must file the lawsuit before the end of the number of years warranted after the date of the sale of the product by that seller

with respect to marketing defect (a/k/a defective warning) - when manufacturers may owe post-sale duty to warn:

if, after selling or distributing the product, they discover a product is hazardous

2 types of implied warranty

implied warranty of merchantability implied warranty of fitness for a particular purpose

warranty of fitness for a particular purpose

implied warranty that a product is suitable to be used for a noncustomary or extraordinary purpose. The warranty arises when the seller , at the time of contracting, has reason to know... any particular purpose for which the buyer requires the product; and the buyer's reliance on the seller's skill or judgment to select or furnish a suitable product to meet that purpose

producing cause

is an actual cause (cause-in-fact) of harm, regardless of whether that cause is also a proximate cause

marketing defect (a/k/a defective warning)

lack of adequate warnings of a product's dangers that were known or should have been known to the manufacturer or seller when the lack of adequate warnings rendered the product unreasonably dangerous as marketed

Plaintiff must assert a product liability claim under an applicable:

legal theory

incidental damages

losses, such as out-of-pocket expenses, incurred by the buyer in mitigating his or her damages caused by the seller's breach of warranty

examples of consequential damages

lost profits resulting from the defendant's breach of warranty; personal injury caused by the product; damage to other property caused by the product

proper defendant in a products liability lawsuit is

manufacturer and/or seller of the product

defendant in strict liability products liability cases

manufacturer or seller engaged in the business of selling, reselling, or leasing the defective product (as opposed to making only occasional sales)

Defendant in Breach of express warranty - UCC

manufacturer or seller of the product who made the express warranty

Defendant in breach of implied warranty of fitness for a particular purpose

manufacturer or seller who has reason to know both: any particular purpose for which the product was required at the time of contracting; and the buyer's reliance on the manufacturer or seller's skill or judgment to select or furnish a suitable product

defendant in common-law fraud products liability cases

manufacturer or seller who made the misrepresentation regarding the product

in a products liability case, the plaintiff has the burden to prove that the product causing the injury had one of what 3 types of defects?

manufacturing defect design defect marketing defect (a/k/a defective warning)

Defendant in breach of implied warranty of merchantability

merchant who manufactured or sold the product

what type of tort is fraud

misrepresentation-based

pecuniary

monetary

pure economic loss - general definition

monetary loss caused by a breach of contract - normally, failure to receive the monetary "benefit of the bargain"

pure economic loss definition in products liability cases

monetary loss relating to the defective product itself caused by defendant's breach of contract or warranty.

treble damages, or statutory "additional" damages

money above and beyond actual damages

legal theories applicable to affirmative defense of proportionate responsibility

negligence common-law fraud misrepresentation-DTPA implied warranty federal statute, depending on federal statute

a defendant may assert proportionate responsibility under Chapter 33, Texas Civil Practice and Remedies Code, as an affirmative defense to a products liability action if the action is based on one of the following theories:

negligence common-law fraud misrepresentation-DTPA; and breach of implied warranty, but only to the extent action is for death or personal injury damages, not for pure economic loss

legal theories most applicable to direct purchasers

negligence strict liability common-law fraud Misrepresentation-DTPA express warranty implied warranty federal statute, depending on statute

legal theories most applicable to personal injury or damage to other property

negligence strict liability common-law fraud express warranty implied warranty federal statue, depending on statute

legal theories most applicable to defects unreasonably endangering persons or other property

negligence strict liability common-law fraud federal statute, depending on statute

legal theories most applicable to remote purchasers

negligence strict liability common-law fraud implied warranty federal statute, depending on statute

legal theories applicable to statute of repose and statute of limitations

negligence strict liability common-law fraud misrepresentation-DTPA express warranty implied warranty federal statute, depending on statute

in tort law, what is the purpose of remedy (damages)

negligence: to place the plaintiff in the position he or she would have occupied had the tort not occurred strict liability theory: to 1. protect the public from dangerous products and 2. allocate the risk of loss to manufacturers/sellers who are better able than consumers to bear the risk

Defendant - non-manufacturing retail seller in common-law negligence case (product liability)

non-manufacturing retail seller that negligently: participated in design of the product; altered or modified the product; installed the product or had the product installed; and/or failed to provide an adequate warning or instruction about the product if that seller exercised substantial control over the content of that warning or instruction non-manufacturing retail seller regardless of fault if: the manufacturer of the defective product is insolvent or not subject to the jurisdiction of Texas courts

failure to give DTPA notice of any claim

not complete affirmative defense; instead, grounds for abating (suspending) a DTPA lawsuit until the plaintiff complies requirement: the consumer must give written notice at least 60 days before filing suit advising the person in reasonable detail of the consumer's specific complaint; and the amount of economic damages, damages for mental anguish, and expenses, including attorneys' fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant failure to give this required notice can form the basis of a plea in abatement of the suit (or motion to abate the suit) until the plaintiff complies with the notice requirement

disclaimer of warranty

oral or written statement intended to limit a seller's liability for defects in the product sold (must be made before completion of transaction)

constitutional basis of preemption

per article VI, clause 2, of the U.S. Constitution, the federal laws of the United States "shall be the Supreme Law of the Land". Accordingly, in products liability cases, sometimes a federal law will preempt a particular state law

seller

person engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof

manufacturer

person who both designs, formulates, constructs, rebuilds, fabricates, produces, compounds, processes, or assembles any product or any component part there of; and places that product or any component part thereof in the stream of commerce

UCC definition of merchant

person who dealt in products of the kind or otherwise by its occupation held itself out as having knowledge or skill peculiar to the practices or products involved in the transaction

Recoverable damages in a products liability case (depending on legal theory asserted)

personal injury death damage to property other than the defective product itself pure economic loss

In tort law, what types of loss are mainly involved?

personal injury, property damage

not recoverable damages in misrepresentation - DTPA cases

physical pain and suffering damages physical impairment damages disfigurement damages loss of consortium damages exemplary damages (the "treble" or "statutory additional" damages substitute for exemplary damages when the violation is knowing or intentional)

products liability theory of recovery in Texas

plaintiff cannot sue simply for "products liability". Rather, a plaintiff must sue under an applicable legal theory

express preemption

preemption occurring when Congress has explicitly stated the extent to which its pronouncements will preempt state law

conflict preemption

preemption occurring when a state law conflicts with a federal law, making compliance with the federal law impossible or blocking the U.S. Congress's purposes and objectives

field preemption

preemption occurring when a state law purports to regulate a field of activity that Congress intended the federal government exclusively to regulate

preempt

prohibit, supersede, or supplant

structural design defect - what manufacturers are not required to do

prove the most durable design or make products that last forever. Rather, their obligation is to make their products reasonably safe

recoverable damages in Breach of express warranty - UCC; breach of implied warranty of merchantability - UCC; breach of implied warranty of fitness for a particular purpose - UCC; and breach of express or implied warranty - DTPA

pure economic loss (benefit-of-the bargain damages a/k/a contract damages) consequential damages incidental damages

damages in common-law negligence case AND strict liability (product liability)

recoverable: personal injury damages; damages to property other than the defective product itself; exemplary (punitive) damages, if the plaintiff can prove the defendant acted with malice, gross negligence, or actual fraud not recoverable: pure economic loss (damages relating to the defective product itself), per Texas's economic loss rule

damages in common-law fraud products liability cases

recoverable: personal injury damages; damages to property other than the defective product itself; pure economic loss; exemplary (punitive) damages not recoverable: generally none

implied warranty

representations as to a product's qualities that are not expressly stated but instead are implied by law

examples of "false, misleading, or deceptive acts or practices in the conduct of any trade or commerce" as defined by the DTPA

representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they did not have representing that goods or services were of a particular standard, quality, or grade, or that goods were of a particular style or model, if they were of another failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed

economic loss rule in Texas

rule barring plaintiffs from recovering pure economic loss in the following 2 types of tort cases: negligence actions; and products liability actions claimed under theory of strict liability

examples of circumstances giving rise to the affirmative defense of disclaimer of warranty under both UCC and DTPA regarding all implied warranties:

seller used oral or written expressions like "as is," "with all faults," or other such language

common arguments in favor of strict liability

sellers of defective products, rather than consumers, should bear the cost of compensating tort victims for the injuries they sustain from such defective products because manufacturers are in a better position to bear such costs sellers should be made to internalize the cost of any injuries their products inflict, forcing them to incorporate the cost of liability into the products themselves and thereby raising the market price of the product. Consumers, when faced with the higher cost of such products, will arguably purchase cheaper and presumably safer products the sophistication of modern products precludes the average consumer from pinpointing the act of negligence responsible for her injuries. Under strict liability theory, since consumers are relieved of the burden of providing this specific act, more consumers will be able to recover, and manufacturers will be deterred from producing unsafe products

characteristics of comparative causation

source of law: common law applicable theory(ies): strict liability comparative scheme: pure comparative: plaintiff recovers damages reduced by own percentage of causation even if percentage is 51% or greater

characteristics of proportionate responsibility

source of law: statute applicable theory(ies): negligence, common-law fraud, misrepresentation-DTPA, breach of implied warranty comparative scheme: modified comparative: plaintiff recovers damages reduced by own percentage of fault, but recovers $0 if percentage is 51% or greater

actionability of innocent misrepresentations under DTPA

still actionable, although the statute allows certain additional recoveries if the defendant made them knowingly or intentionally

legal theories applicable to affirmative defense of assumption of risk

strict liability federal statute, depending on statute

legal theories applicable to affirmative defense of comparative causation

strict liability federal statute, depending on statute

3 variations of design defect

structural design defect safety feature design defect foreseeable misuse design defect

structural design defect

structural weakness caused by defendant's choice of materials that fail to make the products reasonably safe

class action

suit in which a few representative members of a larger group of persons suffering similar harm (the class) sue the defendant on behalf of the entire group

ordinary care (products liability)

that degree of care that a company of ordinary prudence would use under the same or similar circumstances

warranty

that portion of a sales contract in which the seller vouches for the quality or condition of a good to include the buyer to purchase it

in strict liability products liability cases, the plaintiff need not prove

that the defendant was negligent or had any culpable mental state with respect to the product (because it is strict liability - proving of fault not required)

Uniform Commercial Code (UCC) - Sales

the commercial statute governing sales of goods in Texas, codified in Title 1, Chapter 2, Texas Business and Commerce Code

calculating the deadline to sue: the deadline for filing a products liability lawsuit is the earlier of:

the day before the 15-year repose period expires; or the day before the limitations period applicable to the specific type of damages or legal theory expires

plaintiff's burden of proof in breach of implied warranty of merchantability

the defendant sold or leased a product to the plaintiff the product had a defect causing it not to function adequately in the performance of its ordinary function for the plaintiff the product had this defect at the time it left the defendant's possession the plaintiff notified the defendant of the breach the plaintiff suffered injury

plaintiff's burden of proof in strict liability products liability cases

the defendant was engaged in the business of selling, reselling, or leasing the product that caused the harm (as opposed to making occasional sales) the product had a [manufacturing, design, or marketing] defect when sold or leased the product was unreasonably to the user or consumer in its intended or reasonably foreseeable use the product was intended to and did reach the consumer without substantial change in the condition in which it was sold the product was a producing cause of physical harm to the user or consumer or damage to the user or consumer's property

common defenses asserted to the allegation of safety feature design defect

the defendant's product is as safe as the competition's. Problem with this defense - though often successful, this defense may not succeed if the entire industry has been negligent in the installation of safety devices the danger was so obvious that the plaintiff could or should have protected himself or herself even in the absence of any safety device. Problem with this defense - obviousness of the danger is 1 factor courts consider, but most courts will not automatically dismiss the need for protective devices just because the defect is obvious

with respect to marketing defect (a/k/a defective warning), courts balance the following factors:

the likely number and severity of accidents that could be avoided by having a warning or instruction; and the difficulty of providing such warnings and instructions

assumption of risk is an independent affirmative defense to a products liability action only if

the plaintiff claims it under the theory of strict liability. however, in products liability actions whose theories are subject to the defense of proportionate responsibility, i.e., negligence, common-law fraud, misrepresentation-DTPA, and implied warranty, whether the plaintiff assumed the risk of harm by using the product is one of the facts the factfinder may consider in determining the plaintiff's percentage of fault

Plaintiff's burden of proof in breach of express or implied warranty - DTPA

the plaintiff was a consumer (as defined under DTPA) the defendant breached an express or implied warranty regarding those goods or services the breach was a producing cause of economic damages or damages for mental anguish to the plaintiff

in contract law, what is the purpose of remedy (damages)?

to place the nonbreaching party in the position he or she would have occupied had the other partie complied with contract terms - i.e., to give him or her the benefit of the bargain

the most applicable legal theory for asserting a particular products liability claim depends on:

type of plaintiff type of product defect; and/or type of loss

product liability statute of limitations period under legal theory of express or implied warranty

under UCC: for pure economic loss-within 4 years after day cause of action accrues, unless contract expressly provides for shorter limitations period, which in any event cannot be less than 2 years after cause of action accrues; for personal injury damages or damages to other property - possibly within 2 years instead of 4 Under DTPA: day the DTPA violation occurs; or day the consumer discovers or, in the exercise of reasonable diligence, should discover the occurrence of the DTPA violation

warranty of merchantability

warranty implied by a merchant who is in the business of selling that kind of product that the product... is fit for the ordinary purpose for which it is used; and is within the variations permitted by the sale agreement, of even kind, quality, and quantity, within each unit and among all units involved; and is adequately contained, packaged, and labeled as the (sale) agreement may require; and conforms to the promises or affirmations of fact made on any container or label

when class actions are appropriate

when a widely distributed product injures a large number of people

product liability statute of limitations period under legal theory of negligence

within 2 years after day cause of action accrues

product liability statute of limitations period under legal theory of misrepresentation-DTPA

within 2 years after the later of day the DTPA violation occurs; or day the consumer discovers or, in the exercise of reasonable diligence, should discover the occurrence of the DTPA violation

product liability statute of limitations period under legal theory of common-law fraud

within 4 years after day cause of action accrues

failure to give UCC notice: complete affirmative defense to breach-of-warranty action

within a reasonable time after the buyer discovers or should discover any breach, the buyer must have notified the seller of the breach the plaintiff's failure to give this required notice is an affirmative defense that, if proved, completely bars the plaintiff from recovering under the UCC