The Product Liability Case
| Publication year | 1997 |
| Pages | 3 |
1997, March, Pg. 3. The Product Liability Case
Vol. 26, No. 3, Pg. 3
The Colorado Lawyer
March 1997
Vol. 26, No. 3 [Page 3]
March 1997
Vol. 26, No. 3 [Page 3]
Articles
The Product Liability Case
by Michael E. Oldham
by Michael E. Oldham
Product liability cases are extraordinarily interesting and
challenging. They offer a unique combination of legal
technical, and damage issues. Because they frequently require
the retention of qualified experts, the practitioner enjoys
the opportunity of learning fascinating details of discrete
products and industries. The successful prosecution or
defense of the product liability case requires early and
prompt investigation of facts, analysis of applicable legal
issues, and control and preservation of key evidence. This
article is presented as an aid to counsel enjoying their
first encounter with a products case, and for experienced
counsel who are interested in reviewing a case approach
recommended by one of their peers
GETTING STARTED
Preserve the Product
The alleged defective product is the most important piece of
evidence, and the failure to obtain control of it, or
allowing it to be altered, may have devastating consequences
The loss or alteration of the product can impair or prevent
proof of product defect, potential defenses, or undermine a
party's credibility with both judge and jury. Spoliation
of evidence is the failure of a party in control or with
potential to gain control, knowing a defect will be claimed,
to prevent or deliberately cause the loss or alteration of
the product to the prejudice of other parties. This may
result in serious sanctions, including dismissal. It is also
important to identify what constitutes the product or product
environment for the purpose of establishing a defect and the
elimination or proof of other causes. For example, counsel
should preserve the car, not just the alleged defective seat
belt; or the house that burned, not just the alleged
defective toaster.
Videotaping or photographing the product and its use
environment may not, if the party has control or the right of
control, be sufficient if the opponent has not had the
opportunity for examination. In particular, the practitioner
should guard against disassembly or alteration (for example,
by testing) of the product by overzealous persons, such as
experts or investigators. If the product is at risk of
repair, alteration or destruction, timely notice must be
given to all persons or entities that could conceivably be
involved in future litigation and a mutual examination or
test arranged. The preservation of the product is perhaps the
most important action an attorney can take on behalf of his
or her client, and as the growing body of case law
unfortunately demonstrates, preservation of critical evidence
is frequently neglected or treated cavalierly.1
Investigate and Determine Significant Facts
After insuring that the product's post-accident condition
has been preserved, an early thorough investigation should
determine product function and performance characteristics
(all printed information provided on or with the product and
the observed or personal operation of identical products).
The investigation also should uncover sale, use, maintenance,
and alteration information, through all attendant witnesses
and documents (repair bills, operation logs, maintenance
logs, purchase invoices, and hour meter readings). The focus
should be on the product's performance, leading up to and
at the time of the event. This must include facts observed or
recorded by eyewitnesses, scene witnesses, police officers,
investigators, photographers, tow truck drivers, paramedics,
and others (official reports and private accident reports,
newspaper accounts, artifacts, or marks left at the scene
during the event). The scene should be visited and evaluated
by both counsel and experts as soon as practicable. Cautious
nondestructive evaluation of the product is also imperative
during this phase of case development.
The results of these endeavors will provide counsel with the
facts necessary to evaluate the merits of any potential claim
or defense. A preliminary determination of "defective
and unreasonably dangerous" can be made by comparing the
quality of the product's performance at the time of the
injury-causing event to other objective criteria, including
the manufacturer's own specifications; the performance of
similar products under substantially similar conditions;
design, industry or governmental standards; and the state of
the art. Public information about product malperformance may
be available from governmental agencies that collect such
data.
Selection and Use Of an Expert Witness
A liability expert is necessary for virtually all product
cases, and prompt retention can be of significant benefit.
Expert witnesses can help guide and analyze the
investigation, product examination, the discovery,
determination of defect, selection of theories of liability,
affirmative defenses, and determination of causation. Experts
are especially critical in cases involving extraordinarily
technical issues.
However, counsel should use caution in providing information
to experts. Generally, anything testifying experts hear or
review is discoverable. Therefore, never provide testifying
experts privileged, work product, or other information that
would not otherwise be subject to discovery or disclosure.
Although consulting experts may be protected from discovery,
if they later become testifying experts, their files and
anything they "considered" will generally be
discoverable. Trial experts must be disclosed in accord with
the Colorado Rules of Civil Procedure.2
Expert testimony is generally required to prove design
defect.3 Experts must be qualified and may not speculate.4
The careful selection and preparation of expert witnesses is
critical. In a case involving firearms identification, the
Colorado Supreme Court held that an expert's failure to
verify his research methods or the accuracy of his work
constituted a proper basis for excluding his opinion.5 The
practitioner also must understand the tests that may be
employed by Colorado courts to determine the admissibility of
novel scientific evidence.6 Moreover, experts may be
impeached by prior inconsistent deposition testimony given in
another case.7 Such experts may not express an opinion
regarding the condition of a product unless a proper
foundation is laid to show the product was in the same
condition when they saw it as at the time of the accident.8
Consider Application of Statutes Promptly
In addition to preservation of evidence, factual
investigation, and expert retention, counsel must consider a
number of preliminary legal issues that may influence the
existence and quality of any claim or defense. These issues
include whether or not: (1) a statute of limitations has run;
(2) a statute of repose bars the action; (3) preemption by
federal action exists; or (4) special statutes are
applicable.
Statutes of Limitation
All strict liability and negligence actions against
manufacturers or sellers of products must be brought within
two years after the claim for relief arises,9 generally
including the second anniversary of the date of injury.10 The
statute of limitations governing all other actions in tort,
including actions for strict liability, negligence, and
failure to warn, also is two years.11 A cause of action for
injury to person or property accrues on the date both the
injury and its cause are known, or should have been known, by
the exercise of reasonable diligence.12
Warranty actions are controlled by a three-year statute of
limitations for all contract actions under the Uniform
Commercial Code ("UCC").13 A cause of action for
breach of any express or implied warranty accrues on the date
the breach is discovered, or should have been discovered by
the exercise of reasonable diligence, ordinarily at the time
of tender of delivery, unless there is a warranty that
extends to future product performance (as distinguished from
a warranty to repair or replace).14
Wrongful death actions are governed by a two-year statute of
limitations.15 Actions for wrongful death accrue on the date
of death.16
Statute of Repose
Under Colorado law, manufacturers, sellers, and lessors of
new manufacturing equipment are protected by a seven-year
statute of repose. No action may be brought on a claim
arising more than seven years after such equipment was first
used for its intended purpose, unless the claim arises from
injury due to a hidden defect or prolonged exposure to
hazardous material.17 "New manufacturing equipment"
is not limited to machine tools used in the manufacturing
process and, consequently, the statute provides courts with
some flexibility in its application.
The determination of whether the defect is hidden has been a
significant issue in cases involving the application of the
statute. For example, in one case, even though an electrical
transformer was "new manufacturing equipment," the
action was not barred because it arose from a hidden defect
present at the time of manufacture, which was not discovered
and could not have been discovered until the entire
transformer was cut in half after the accident.18
Conversely, it has been held that the failure to guard an
open and obvious danger on a conveyor does not constitute a
hidden defect. The hidden defect must be one that creates the
unreasonably dangerous condition that was not readily
apparent or discoverable by a reasonably prudent user.19 In a
case involving an unguarded trigger on a hockcutter used in a
slaughterhouse, the court (while also holding that this
device was manufacturing equipment) held that the dangerous...
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