Product Liability Issues

Fairfax Injury Lawyer Brien Roche Addresses Product Liability Issues

Brien Roche

Product Liability Issues Need To Be Thoroughly Understood

The basic principles of safe product design are:

  • Design out the defect so that the hazard is eliminated.
  • If the hazard cannot be designed out, then build in safety devices such as guards and locks so as to prevent injury.
  • Provide warnings if such are necessary.

In the course of product liability litigation there are a number of recurring issues:

  • The no prior accident defense.
  • Deciding to sue or not to sue a foreign manufacturer.
  • The state secrets defense.
  • The government contractor defense.
  • Has a standard been violated.

In most product liability cases the defendant will attempt to assert that there is no evidence of prior accidents.  That defense may be subject to a lack of foundation objection.  To rely upon that defense the defendant must establish that if there had been prior accidents the defendant would have known about them because there was in place a mechanism to check on the safety of the product and to determine whether or not there had in fact been accidents involving the product.  The mere fact that the defendant has shown that there is no evidence of any prior accidents may be a result of there being no record keeping system in place to record complaints or to record actual accidents that are reported.  That foundational evidence must be established before evidence of a lack of prior accidents should be admissible.  In general, in order to lay the proper foundation for a defense of no prior accidents the defendant must show:

  • It likely would have known of those prior accidents if they had occurred. 
  • The number of  units sold and the extent of prior use.
  • The proposed testimony must relate to substantially identical products used in similar circumstances.

Another recurring issue in product liability litigation is the need for suing a foreign manufacturer who may have physically put the product together or had some substantial role in putting it together.  The ability to sue such a manufacturer is dependent upon whether or not that potential defendant has purposefully created minimum contacts with the jurisdiction where the suit is pending so that it would reasonably anticipate being brought into court in that jurisdiction.  If that threshold requirement cannot be met, you may not be able to bring the defendant before the Court.  More importantly, however, if the distributor and/or assembler of the product is within the jurisdiction of your court you may not need that foreign manufacturer.

In product liability litigation involving products made for the federal government it is not  unusual for the  manufacturer to assert the state secret privilege.  That privilege is a common law evidentiary rule that protects information from discovery when disclosure would be contrary to the national interest.  This rule, however, in some instances becomes more than simply an evidentiary privilege as it may be used by the defendant if the privilege itself would deprive the defendant of a valid defense, i.e. there is evidence that the defendant cannot present because of the state secret privilege. 

A related defense is the government contractor defense which turns on whether the government approved reasonably precise specifications for the product, the product conformed to those specifications and the  manufacturer warned the government about dangers in the use of the product that were known to the manufacturer but not to the government.

The standards that apply to a product may be governmental (state or federal codes) or non-governmental. Non-governmental standards are published by the American National Standards Institute (ANSI), Underwriters Laboratory (UL) and the American Society of Safety Engineers.

For more information on issues in product liability claims see the other pages in the site dealing with product liability.

If you have been injured as a result of a product defect and feel as though you have a claim for relief, contact us. Brien Roche is a Fairfax, Virginia and Washington D.C. product liability attorney.

For more information on product liability see the pages on Wikipedia.

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Product Liability Issues

Contact Us For A Free Consultation

Contact Us For A Free Consultation