Academic journal article Defense Counsel Journal

Utilizing Statutory Defenses for Potential Product Liability Claims

Academic journal article Defense Counsel Journal

Utilizing Statutory Defenses for Potential Product Liability Claims

Article excerpt

Attorneys practicing in the product liability field should be aware of all statutory affirmative defenses to product-related claims and how those defenses inform product manufacturing and marketing, as well as the benefits to clients of early preparation for litigation. This article informs the product liability attorney preparing a client to roll out a new product.

A firm grasp of product liability defenses is essential both in preparing for future claims against the client for product failure or defect and in preparing the product for market in a fashion tailored to minimize potential liability. Accordingly, this article has two focuses. The first focus is on the front end of the product roll out when clients should be advised to expend resources up front to prepare for and reduce the cost of future litigation. The second focus is on the back end of a product's life on the market where familiarity with product liability affirmative defenses benefit a client faced with litigation. The recommendations presented apply to any product roll out, but are particularly pertinent for an inherently dangerous product.

I. INTRODUCTION (1)

This article is intended to inform the product liability defense attorney preparing a client to roll out a new product. A firm grasp of product liability defenses is essential both in preparing for future claims against the client for product failure or defect and in preparing the product for market in a fashion tailored to minimize potential liability.

This article has two distinct focuses. The first focus is on the front end of the product roll out when clients should be advised to expend resources up front to prepare for and reduce the cost of future litigation. Investing resources prior to product roll out also may enable the client to assert an advice of counsel defense in certain jurisdictions to preclude punitive damages.

The second focus is on the back end of a product's life on the market where familiarity with product liability affirmative defenses benefit a client faced with litigation. This article also includes specific applications to inherently dangerous products because these products present more daunting product liability concerns. (2)

The recommendations presented in this article apply to any product roll out. These recommendations are especially relevant, however, to the roll out of an inherently dangerous product. Attorneys practicing in this field should be aware of all statutory defenses and how those defenses inform product manufacturing and marketing, as well as the benefits to clients of early preparation for litigation.

II. ADVISING THE CLIENT PRIOR TO PRODUCT ROLL-OUT

Identifying potential sources of product liability and minimizing exposure to product liability claims through advising the client prior to entry into the marketplace can be the difference between product success and failure. Highly visible recent cases of product defects illustrate the dangers in products both seemingly benign and inherently dangerous.

For instance, in 2007 the discovery that lead-based paint was used in plastic toys made for preschool-aged children led to a nationwide recall. (3) The recall involved 967,000 toys of 83 different types. (4) More recently, Wal-Mart recalled about 39,000 key chains due to a risk of lead exposure. (5) The charms on the key chain contained high levels of lead, which is toxic if ingested and can cause adverse health effects. (6) Similarly, Hewlett-Packard recalled approximately 367,000 fax machines in June 2008 because of an internal electrical component failure which could cause overheating of the product, posing a risk of burn or tire. (7) The impact on the manufacturers of the negative press and future litigation connected to the recalls will be substantial.

Inherently dangerous products, such as high tech self-defense devices, present further exposure issues. In 2007, a 47-year-old Denver real estate agent died when a police officer shot him with a supposedly non-lethal stun gun manufactured by Taser International. …

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