Obviously, if an attorney has been hired to investigate potential sources of compensation for an injured client, and if it appears that a product defect may have contributed to the client's injuries, his duty should include inquiry into a potential products case. The evidence required to prove a general auto negligence case, and the methods for preserving it can be very different from what is required to prove a products liability claim.If the product is not properly preserved and a products liability case is later filed, the manufacturer will argue that the case should be dismissed due to spoliation of evidence. Under these circumstances, if the vehicle is later determined to have contributed to the client's injuries, the attorney may face a possible action for malpractice by the client.Therefore, any time it appears likely that a client's injuries may have been caused by a defect in a vehicle or one of its components, it is imperative that the attorney take immediate action to preserve the claim and evidence that will be required to prove the products liability claim.The basic steps to preserve the product and evidence related to the product will be discussed in Section IV below

II. THRESHOLD QUESTIONS

Your analysis as to whether a potential products liability exists should begin with
the following three threshold questions:

1. Has your client suffered catastrophic injuries?

   Products liability actions are very expensive to prosecute. The strategy of many product manufacturers and sellers is to fight a “war of attrition”. They are aware that the resources of the Plaintiffs’ law firm that is footing the bill for each case are typically more limited than their own, and know that disparity will result in some claims never being filed.

   It is not only the vehicle with the potential defect must be saved. All other vehicles involved in the crash must be similarly preserved, along with any trailers, boats, or campers that any of the accident vehicles may have been pulling. In addition, in many cases it is necessary to purchase an exemplar vehicle that your experts can inspect to learn what a component may have looked like before the crash, and it may even be necessary to perform destructive testing on the exemplar vehicle. This often gets very expensive; nevertheless, unless all of this evidence is preserved in the same condition it was in at the time of the accident, it may be impossible to later prove that the accident was caused by an automotive defect. All of these factors make it generally impracticable to pursue product defect cases in the absence of catastrophic injuries and significant economic losses to offset the cost.

2. Do you have the product?

   Having the product in a product liability case is as essential as having the body in a murder case. While this is understandable in a manufacturing defect case, arguably, it should be possible to use an identical exemplar product in a design defect case. Nonetheless, it is extremely difficult and the great exception to succeed on a products claim if you are not in possession of the product.

3. Is your case barred by a statute of limitations or statute of repose?

   In the products liability area, many states have statutes of repose in addition to statutes of limitation that can also act as a complete bar to a claim. Statutes of repose provide that no action for a product defect can be filed beyond a certain period of years, typically 10 to 12 years, after the product entered commerce. It is critical to determine whether your state has a statute of repose, the number of years the statue covers and the date on which your client’s product entered commerce. Numerous factors can affect the exact date on which the statute of repose period will begin and there are constitutional challenges that can and should be made to statutes of repose in appropriate circumstances. However, in general, these statutes will be strictly enforced. If you believe your client may have a products liability claim and if you are anywhere near the statute of limitations or statute of repose date (or if you are in doubt about the date), you must preserve your client’s claim.

III. POTENTIAL CLAIMS INVOLVING VEHICLES

The following is a list of some common defects that have been litigated with some
regularity that you may refer to when analyzing your cases for the potential of a products liability claim. Keep in mind that there are many other defects that are not so commonly the subject of litigation, or perhaps that have not been litigated at all yet, but are nonetheless defects that may warrant filing a products liability action.

1. Instability

   In a vehicle rolls over on the road without the help of road conditions such as potholes, debris, edge drop offs, etc., the vehicle may have a stability defect. Rollovers occur most frequently in SUVs due to their high center of gravity and narrow track width. Instability will almost always be a design defect claim.

2. Defective Tires

   Defects in tires can be manufacturing defects, such as incorporation of foreign material into the tread during manufacturing, design defects, such as tread designs that are more likely than others to “unzip” and separate from the tire walls, and warning defects, such as the failure to specify to correct amount of tire pressure. Another possible warning defect that has not gained much “traction” yet is the failure to specify expiration dates to prevent the sale of aged tires that have a much greater likelihood of failing. Anytime something happens in a tire that causes the driver to lose control of the vehicle, a tire defect claim should be considered.

3. Roof Crush

   A “roof crush” claim is actually a claim that the vehicle is defective due to a lack of structural crashworthiness. Anytime the side pillars of a vehicle collapse or deform enough to allow the roof to be pushed several inches into the passenger compartment or to be pushed sideways, leaving the passenger exposed, you should consider whether a roof crush claim would be appropriate. While there is no general rule about how many times a vehicle should be able to roll over and maintain the integrity of the roof structure, certainly, the greater the number of times the vehicle rolls over, the more difficult it is to prove a structural crashworthiness defect. Roof Crush claims can be either design defects, such as where the specified pillar strength is inadequate to support the weight of the vehicle in a rollover, or a manufacturing defect, such as where the roof structure and was not welded in as many spots or in the spots specified, or the welding material was inferior.

4. Seat Failure

   Anytime your accident involves a seat that has either dislodged from its position or collapsed forward or backward, you should investigate the possibility of a defective seat claim. A seat back failure scenario involves a seat the collapses backward during an accident and either injures the passenger immediately behind the seat, or allows the occupant of the collapsed seat to slide backward and be ejected out the rear window or hatch. Again, a seat failure case can involve a design defect, such as where the seat is not designed with sufficient strength to withstand foreseeable forces, or a manufacturing defect, such as where inferior bolds are used to secure the seat in place.

5. Defective Child Safety Seats

   The child safety seat should be thoroughly examined and investigated in any accident in which a child properly restrained in a child seat is injured in an accident. In addition to potential design and manufacturing defects, car seat manufacturers frequently fail to provide adequate instructions on the proper installation of child seats, resulting in seats that fail. An astounding number of child safety seats are improperly installed or are in service despite having been recalled.

6. Defective Seat Belts

   There are a myriad of ways seat belts can fail and result in unnecessary injuries. These defects may manifest themselves in excessive internal injuries caused by “jack knifing over a lap only belt, strangulation by the seat belt, head or neck injuries resulting from striking the roof of the car while wearing a lap and shoulder belt, injuries resulting from “submarining” out from under the belt, etc.

   Some seat belt defects include “unlatching” or “partial latching” defects. An unlatching defect can occur when the latch becomes unlatched as a result of the inertia of the crash. Unlatching can also occur as a result of “inadvertent” unlatching, such as where the occupant in an accident sequence comes into contact with the seat belt mechanism and unlatches it. The Federal Motor Vehicle Standards require manufacturers to design seat belts to “minimize the potential for accident release” . Some seat belts installed, for example, in certain Toyotas, Nissans, Mitsubishis and Mazdas, have a buckle with a “third position” which is neither fully latched or unlatched, but creates the impression it is latched.

   Seat belts can also be defective due to webbing that stretches or tears, allowing excessive slack in the belt. A seat belt can be defective as a result of “spooling”, where the belt “spools out” allowing slack in the belt during an accident. Excess slack in the seat belt can also result from incorrect geometry, mounting seat belts on doors that can open or deform during an accident thereby allowing the passenger to move excessively during an accident. A seat belt system may be defective if it does not include a pretensioner, a device that is triggered to automatically remove any slack in the belt immediately upon impact or after a sudden change in directional forces. Pretensioners are very commonly used in vehicles in Europe but are only slowing being integrated into U.S. vehicles.

7. Airbag Defects

   Airbags can cause injuries in a number of ways. Airbags can be overly aggressive, deploying with greater than necessary force that causes greater injury than would have occurred without an airbag. Aggressivity is typically a design defect. Airbags can also have either design or manufacturing defects that cause them to inadvertently deploy, to deploy late or fail to deploy under conditions in which they should. Airbags can also be defectively designed with a deployment threshold (the speed at which the vehicle is moving when the airbag deploys) that is so low it creates a risk of greater harm from the deployment of the airbag itself than would be expected from an impact at that speed. Government statistics show that accidents at speeds less than 12 to 15 miles per hour rarely result in life threatening injuries. Due to the possibility of life threatening injuries being caused by airbag deployment, especially to children, short-statured women and occupants relatively close to the airbag when it deploys, the airbag should not be designed to deploy below the speed at which the impact of the accident is likely to result in life threatening injuries.

8. Door , Window and Glass Defects

   While windshields are typically made of laminated glass that is designed to hold together and prevent occupants from going through the windshield during an accident, side and rear windows are typically made of less expensive tempered glass that is designed to shatter into small pebbles upon impact. Consequently, passengers are much more frequently ejected through the side and rear window openings when the use of laminated glass would have prevented their ejection.

   Additionally, passengers are more likely to be ejected from vehicles with rear lift gates due to the rate of failure of lift gates and latches during an accident. Door hinges and latches, especially the sliding doors on vans, are also susceptible to breaking and deforming during an accident, allowing the doors to open and creating a portal for ejection of occupants. Additionally, opening or deformation of doors during an accident can make door mounted seatbelts completely ineffective in the event of an accident.

9. Fuel System Defects

   Any time an accident results in a fire, it is worthwhile to investigate the cause of the fire to determine whether it resulted from a fuel system defect. A very common design defect in fuel systems is placement of the fuel tank in locations vulnerable to puncture in an accident. The safest place for a fuel tank is inside the frame so that the frame can act as an additional layer of protection for the fuel tank. Fuel tanks can also be designed and/or manufactured so that the filler pipe that runs from gas cap to the fuel tank is improperly connected or insufficiently flexible to remain attached upon impact, causing fuel to get outside the fuel system. Fires can also be caused by the improper placement of other flammable and combustible materials in vulnerable positions which might allow them to come in contact with sparks or super heated surfaces in the engine compartment.

   If the occupants in a vehicle survived the crash with only minor or non-life threatening injuries in the initial impact only to be severely injured or killed by a subsequent fire, you may have a good fuel system defect case.

IV. FIRST STEP IN A POTENTIAL CLAIM: PRESERVE THE PRODUCT!

Leaving a vehicle sitting around in a salvage yard while you investigate a potential products liability claim would be similar to a drug agent leaving a bag of cocaine laying around at the crime scene or in the seat of his car while he investigated a potential crime. If you are going to practice in the products liability area, you must have procedures in place and a staff trained to carry them out to the letter or you open yourself up to a serious risk of committing legal malpractice. If you have been engaged by a client who may have a products liability claim and do not intend to pursue that claim personally, you must still make sure that your client’s evidence has been preserved either by immediately engaging products liability counsel or by arranging for the preservation of the evidence yourself. The final part of this presentation will address the practical aspects of preserving your clients’ evidence and claims.

1. Preservation of Accident Vehicles

   The first step after identifying a potential products case is to ask the question, “Where is the vehicle?" If the client doesn't know, and the crash was recent, the vehicle can usually be found after a few calls to the property insurance carrier, the investigative agency, or the vehicle's owner who may, if they don’t know where the vehicle is, may have information about the towing company that was at the accident scene and took the vehicle.

   Immediately after locating the vehicle, the attorney should fax a A "Do Not Destroy" letter to the facility where the vehicle is being kept. The letter will put the recipient on notice that the vehicle is evidence in a potential product liability suit, and that the vehicle must not be altered, destroyed, or released. The letter should also convey a request to take immediate possession of the vehicle and agree to pay for the salvage value if necessary. Duplicate copies should be faxed to the carrier and to the vehicle owner. The attorney should then very quickly follow up the letter with a phone call to make arrangements to take possession of the vehicle. A copy of a “Do Not Destroy Letter” is attached as Exhibit 1.

   The importance of acting quickly to preserve the vehicle cannot be overemphasized. Most property insurance adjusters have strict procedures that require them to move their wrecked vehicles through the system as quickly as possible to save on storage costs. Often, unless the carrier receives "A Do Not Destroy" letter, the vehicle will be sold and scrapped within 30 days after the crash. Therefore, it is imperative that the vehicle is immediately preserved.

   Once arrangements have been made with the carrier, the attorney must take physical possession of the vehicle. Towing on a hook can damage the vehicle and cause shifting and jarring of parts, so the vehicle should be towed on a dolly to a locked facility. No one other than the plaintiffs' law firm should have access to the vehicle. This prevents needless chain of custody issues and other potential issues of evidence tampering or spoliation of evidence, that sometimes arise when multiple parties in a suit have shared access to a vehicle.

   The facility where the vehicle is stored must be secure, covered, and protected from the elements. Unless the vehicle is kept in such a facility, the attorney may again face allegations of malpractice for spoliation of evidence. Exposure to weather causes vehicles to rust and deteriorate which often alters critical evidentiary elements. For example, a single hair in a headliner, which might be the crucial fact in identifying the cause of a client's injury might not be preserved if left exposed to wind and weather. Or, as another example, exposed steel belts in a tread separation case can quickly corrode if exposed to moisture, completely losing their evidentiary value. Mini-warehouse units are generally a safe location to store vehicles, unless the firm has access to a larger secure facility.

2. Preservation of the Accident Scene

   Preserving the scene in a potential products action requires a more extensive process than that used by most local investigators, police agencies and even your state’s Highway Patrol. Typically, unless there is a fatality, highway patrol crash reports will only include a sketch of the scene and a skeletal outline of the facts. Even with a Homicide Investigation Report there is RARELY sufficient documentation to gather the level of detailed information that will be required by the better experts who testify for plaintiffs against the automotive industry. Similarly, most local accident reconstruction experts will fail to adequately document the scene with the level of detail and specificity needed by higher-end design engineering experts.

   Of utmost importance to properly preserve the scene is the timing of the site visit. Every day that passes after an accident, evidence is lost. As soon as the attorney determines that there is a possible auto products case, a team should be sent to the scene to document all of the evidence both on-road and off-road. The team should be familiar with survey equipment and use the equipment to carefully measure all on and off-road gouge marks, yaw marks, skid marks, etc. The scene should also be carefully surveyed both at the immediate crash site and well upstream of the crash. This information will become important when recreating the accident sequence and may also be important in resolving conflicts or refuting eyewitness evidence regarding the accident.

3. Preservation of Scene Debris or Other Evidence

   All remaining physical evidence or vehicle debris located at the scene should be carefully collected, bagged, marked, and coordinated on the survey report. This evidence should also be documented on a chain of custody chart with the initials of the person responsible for collecting and documenting the evidence noted.

   For certain cases, such as tread separation case, there should be an exhaustive search for any missing component parts that may have contributed to the accident. A piece of missing tread for example, may have been easily missed by the highway patrol officers., but found a day later by a careful investigative team. In the case of a tire blow out or tread separation, any and all pieces of tread found should be collected. Your experts will have no difficulty discerning whether any of the pieces of tread collected came from tires that were not involved in your accident.

   Finally, the entire scene should be thoroughly photographed and videotaped. There should be at least one photo taken of each piece of evidence or debris that is found at the scene prior to its collection. The photograph should be adequately marked or taken with an identifying number in the photograph to enable easy correlation to the survey. This will reflect the location at the scene where the evidence is found. When filed, all photographs should be clearly marked and dated with the name of the person who took the photos clearly identified.

4. Witness Interviews

   Witness interviews should also be conducted as soon as possible. The investigating officers who were present on the scene following the accident must be interviewed. It is most helpful to have the investigating officers meet the attorney at the scene to walk through their recollection of the events and the evidence. If possible, it is most beneficial to obtain recorded statements. Similarly, interviews and recorded statements from all other eyewitnesses should be obtained if at all possible.

5. Disposition of Evidence

   It is essential to take precautions in disposing of vehicles and evidence both after the successful conclusion of a case or after declining to prosecute a case after the initial investigation. Under both circumstances the attorney should fully explain the situation to the client, explain that the evidence will be released unless the client wishes to make arrangements to have the evidence preserved and that, if the evidence is not preserved by the client, the client will be unable to further pursue a products liability claim. To the extent there are other victims of the same crash, the attorney should also put the other potential victims on written notice before any evidence is released.

V. CONCLUSION

Personal injury cases that involve potential product liability issues are fraught with peril for the attorney who fails to diligently preserve and handle evidence. However, with a proper investigation, not only will the client's potential case be preserved, but the plaintiff's attorney will have a huge information advantage over the defendant should a lawsuit be filed.