Your analysis as to whether a potential products liability exists should include a careful analysis of the following two practical concerns:
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.
The time involved in investigating the possibility a product defect exists can also be prohibitively expensive. The pool of qualified experts available to discuss any particular type of product defect is small, and in many instances, these experts are in a position to name their own price for working on your case, particularly if they have experience working for the specific manufacturer on the specific product at issue. A typical case going to trial involving vehicles or vehicle components, the costs of the expert witnesses alone ranges from $200,000 to $300,000.
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 costs.
2. Do you have the product?
Maintaining possession of the product that failed in a product liability case is as essential as having the body in a murder case. The plaintiff in a products liability lawsuit bears the burden of proving the existence of a defect in a strict products liability lawsuit and that the defendant failed to act reasonably in designing or manufacturing the product under a negligence theory. This burden often proves to be impossible if the plaintiff no longer has possession of the product.
However, it bears noting that the mere fact that the product has been lost does not mean that you should automatically reject the case. Florida case law provides evidentiary tools that may allow you to seek a remedy for your client even if you do not have the product under the right circumstances. The best tool for doing so is the inference established in Cassisi v. Maytag Co., 396 So. 2d 1140 (Fla. 1st DCA 1981), which held that “when a product malfunctions during normal operation, a legal inference . . . arises . . . and the injured plaintiff thereby establishes a prima facie case for jury consideration.” To learn more about the Cassisi inference, check out our recent article, “The Past, Present, and Future of the Cassisi Inference in Automotive Products Liability Cases.”
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