If you have been injured by a defective product you probably already know all the ways that the injury has impacted your life. Maybe you see a fast and easy settlement as the quickest route to getting your life back together after the injury. Whether you have been approached with an offer of settlement by one of the parties responsible for your injury, or are thinking about approaching that party to demand compensation, you should be aware of complications that can arise in settling your products liability claim. Moreover, you should consult with an experienced attorney before proceeding.

Products Liability Cases: The Basics

Products liability law requires that the manufacturer, distributor, and/or seller of a product bear responsibility for injuries caused by that product if the product is defective in its design, manufacture, or marketing. A product can be defective in a number of ways. If a product is marketed with inadequate instructions or warnings as to foreseeable risks it is defective. If a product is manufactured with a flaw, but the design and marketing of the product are fine, it is called a manufacturing defect. If a product is designed in such way that it is foreseeable that injury could result, and if the risk of injury could have been reduced by an alternative design, then a product is said to be defective in its design. When looking at alternative designs, the court will look at the costs associated with the alternative designs, whether the proposed alternative would in fact have reduced the foreseeable risks of harm associated with the product, and whether the failure to use the alternative design made the product unreasonably unsafe at the time it was manufactured. If a product is defective in the way that it was marketed, manufactured, or designed, and someone is injured as a result of that defect, then the manufacturer, distributor and/or seller of the product are usually liable, or responsible for the consequences of the defect. If you are considering settling your products liability claim, you need to think about three general issues: liability, damages, and subrogation. Each of these issues has a particular impact when settling your claim.

Settlement Issues: Liability

When we speak of liability we are really talking about who is going to take responsibility for the product that injured you. As you might imagine, a products liability case can include not only the manufacturer, distributor, and/or seller of a product but also the manufacturer, distributor and/or seller of component parts which were defective and which contributed to the injury. Before discussing settlement with any of the parties, you need to identify all of the parties that might bear some responsibility for your injury. Identifying the manufacturer might be as easy as looking at the product label. You probably also will know who you purchased the product from. But what happens if these companies are no longer in existence? You may find, for example, that one of the potential defendants in your case has been sold, merged into another company, spun off, dissolved, or gone into bankruptcy. In the case of mergers, sales or spin offs, you will need to determine who the corporate successor is. In the case of dissolution or bankruptcy, you will need to determine whether there is any way that you can still file your claim.

It is important to identify and include all the responsible parties still in existence because settling with just one defendant may operate to release all of the other possible defendants. Many states have laws which are known generally as "joint and several" liability laws. Under these laws all the defendants are responsible for all of the damage. The way that these laws work varies from state to state, but basically, if there are four potential defendants in a case and one of those potential defendants is no longer in existence or is in bankruptcy, the other three must pay for the missing defendant's share of damages. Also, when settling your claim with one defendant, you need to word your release of liability as to that defendant carefully in order to preserve the joint and several liability of the other defendants.

Settlement Issues: Damages

Once you have identified all the parties who bear some responsibility for your injury, you need to determine what your damages are. This is not as simple as adding up your medical bills and time lost from work. Most states have specifically identified damages that are allowed in cases of personal injury due to product defect. Generally, these damages can include past and future medical and nursing bills, past and future wage loss, past and future pain and suffering, past and future emotional distress and embarrassment, past and future loss of consortium, as well as past and future expenses associated with the injury such as having to hire work done that you can no longer do. Some of these damages require proof from an expert. For example, usually you will need a doctor to say that you are likely to incur future medical expenses. The doctor will also need to outline the nature and frequency of those expenses. Similarly, with respect to wage loss, you may need to have a doctor say that you are permanently disabled and an economist to demonstrate what you lost in wages and benefits.

When an injury from a defective product results in death, the damages may be limited by statute to those items considered monetary in nature. The reason for this is that the wrongful death claim is considered a claim on behalf of the heirs and next of kin of the deceased rather than the deceased himself. Thus, the pain and suffering of the decedent may not be considered relevant for purposes of settlement in some states. In addition, many states require the appointment of a personal representative who will represent the heirs and next of kin in the settlement negotiations. Once the settlement is made it often needs court approval in order to be effective. Finally, usually the court will require the filing of a petition for the distribution of the wrongful death proceeds. A claim on behalf of a minor is similar to a wrongful death claim in that it too requires the appointment of a representative, generally known as a guardian, and the filing of a petition for approval and distribution of minor settlement proceeds.

Settlement Issues: Subrogation

As noted above, the items of damages for which you may claim compensation include medical expenses and lost wages. Perhaps you are wondering whether you really need to be concerned about those items since your medical bills are paid by your insurance company or employer and your lost wages were paid by your employer through workers' compensation. The answer is yes, and the reason is, in a word, subrogation. In essence, subrogation means that if an insurance company or your employer has paid for a portion of your damages, then the insurance company or employer is entitled to receive that money back when you settle. The idea is that it is unfair for you to get money to pay medical bills that have already been paid by someone else, namely your insurance company.

As a practical matter, the way that subrogation works is that the insurance company that pays your bills files a subrogation claim against your case. The claim states the amount of money paid for lost wages or medical bills. The insurance company knows about the claim because you are supposed to send a notice of your claim to all the potentially interested parties, such as your medical or disability insurer and your employer. The notice allows the insurance company or employer to attend the settlement negotiations so that it can protect its interests. You might be able to structure the terms of your settlement to exclude the interests of the insurance company and/or employer. With this type of settlement you basically settle around their interests and allow them to deal directly with the defendants.