Case Preparation Issues
If you have been injured by a defective or dangerous product, it is important that you consult an experienced product liability attorney as soon as possible. Product liability cases are often quite complex, and will require an attorney's expertise from the beginning, in order to ensure all relevant evidence and potential claims are preserved. The following discussion describes some of the steps and considerations that will be taken in the preparation of a product liability action.
The early days following an accident can often be critical in setting the stage for a successful product liability action. The first priority when someone is injured by a defective or dangerous product, after the necessary medical treatment is obtained, is to call an experienced product liability attorney who will make sure that all evidence is preserved. The product that injures a potential plaintiff must be secured immediately to ensure its availability later, which will be necessary in proving a product liability claim, and to guarantee that its condition will not be changed, which can adversely affect one's case.
The defective product should be locked in a facility that you and/or your attorney controls. Never dispose of the product that injured you, unless it presents a risk of immediate harm. Do not sell or give the product to any investigator before consulting an attorney. Major manufacturers carefully read newspapers and often attempt to secure evidence in order to deny plaintiffs the ability to pursue claims.
If the product cannot be secured immediately, put everyone on notice, including tow-truck operators, wrecking yards, and police impounds that they must take every step to preserve the product, which is evidence, and that the failure to do so will subject them to liability for allowing evidence to be destroyed. When the product is in the possession of a third party or one of the potential defendants, your attorney might immediately file an action for a temporary restraining order and a preliminary injunction to avoid alterations to or destructive testing of the product.
Your attorney will want to obtain the complete history of the product, and will seek to determine the date of the original sale, identity of the dealer, distributor, subsequent purchasers, lessees and users. It is important to locate the instruction booklet, assembly booklet, warranties and all other written material that accompanied the new product at the time of the original sale and distribution. You might also be asked to help your attorney determine whether the product was modified or otherwise changed after it left the possession of the manufacturer and distributor and, if so, the identity of the persons or entities that made the modification, and the dates involved.
A successful product liability case will usually require the assistance and testimony of an expert. Typical types of experts retained in product liability cases are engineers, safety experts, and medical professionals. Finding a qualified expert early in the litigation process is usually the major factor in successfully proving a plaintiff's case.
Expert engineering testimony is often crucial to proving that a design or manufacturing defect in a product caused the plaintiff's injuries. In addition to utilizing engineering testimony, your attorney might rely on the testimony of psychologists or experts specializing in the field of human factors. This is because sometimes, a strict engineering approach fails to consider that a product must be designed not only to work, but also so that people can safely use it. A biomechanical analysis can reveal a hidden danger for the unwary user or a practical way to prevent injuries, based on an understanding of human tendencies and behaviors.
While either side in a trial, or even the court itself may call upon expert testimony, guidelines of expert witness ethics should always be headed.
In appropriate cases, expert testing, either destructive or nondestructive, of the product at issue may be necessary to determine whether there is evidence that the product failed or could fail in the manner alleged by the plaintiff.