Product Liability - The Top 30 Hooks!
September, 2005
by Michael S. Errera and Dean S. Rauchwerger
Choosing the “right hooks” in litigating your product liability case makes the crucial difference in maximizing success. Below is a bottom-line punch list of the hooks that must be explored if you are to be on the winning side, as a plaintiff with the burden of proof to show an unsafe or unreasonably dangerous product or as a defendant with the burden to defend the product and its manufacturing, marketing and post-sale practices.
Product Design – Is There a Defect?
Does the product design conform to all legal, regulatory and industry standards & good manufacturing practices? Does the design meet “state of the art?”
Was the design challenged effectively by comprehensive failure testing and analysis under foreseeable field conditions, use and misuse? Has the product prototype been tested? Has the product been sufficiently tested and/or approved by any independent testing facilities? Has the expected life of the product been determined?
Does the product design properly minimize risk by design and/or product warnings, instructions and literature?
Are the dangers of the product outweighed by the product benefits (risk-utility analysis)?
Is there a reasonable, alternative design that is feasible and safer?
Does the product design incorporate appropriate safeguards and safety devices to minimize the risks? Examples include emergency shutoffs, interlock devices, protective shields, sensing and alarm devices, integrated design features, etc.
Product Manufacture – Is There a Manufacturing Defect?
Does the product fail to meet design specifications and product approval requirements? Are bogus or sub-standard parts or materials being used?
Does the manufacturing defect extend to multiple productions or evince a systemic lack of quality or manufacturing control?
Are there adequate manufacturing quality control/assurance and inspection policies, procedures and practices?
Are There Defective Warnings, Literature & Instructions?
Are there complete and accurate warnings of the dangers, risks and hazards posed by the product?
Are the warnings and instructions adequately conveyed – i.e., are they in simple English and adequately displayed?
Are the product instructions adequate to avoid foreseeable misuse?
Can the manufacturer show that the intended product literature was, in fact, disseminated? Did the product promotional and advertising materials go too far?
Was There Adequate Post-Manufacturing Conduct?
What is the extent of liability for inadequate repair, service, overhaul and customer support?
Have the product literature, instructions and warnings been updated in conformity with increased product knowledge and state of the art?
Has the manufacturer adequately investigated substantially similar incidents and undertaken remedial measures, where appropriate?
Is the manufacturer exposed to product recall, corrective action or Consumer Product Safety Commission duties?
End User’s Conduct – Was It Reasonable?
Did the end user fail to use reasonable care in using the product?
Did the end user knowingly “assume the risk”?
Was the product substantially altered or modified without manufacturer approval?
Was the product properly maintained and serviced?
Additional Legal Issues:
Was the alleged defective product the proximate cause of the accident? Was there an intervening cause?
Are the state law claims preempted by federal law?
Is the claim barred by applicable statutes of repose or limitation?
Has the claimant complied with UCC notice requirements?
Are the liability claims effectively disclaimed or limited by contract?
Is the manufacturer saved from liability by the “government contractor” defense?
Other Practical Considerations:
Have the “smoking gun” documents been uncovered and the critical testimony been developed? Have the best-suited experts been selected to tell your technical story?
If the primary target defendant is insolvent, are any successor entities on the liability hook? Have all responsible parties in the chain of distribution been identified and considered as potential parties to the litigation?
Is there available liability coverage? Are any applicable indemnity or hold harmless arrangements in play?
There are many product liability hooks - the key is to be mindful of the “right hooks” to put into play and when. You must focus discovery and litigation efforts in the context of your case theory to give you the edge you need to prevail at the various pivotal points. •
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