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The litigious nature of our society coupled with an organized effort by plaintiffs’ counsel to advertise and solicit claims through TV, radio, the Internet, and otherwise has resulted in a dramatic increase of product liability claims filed in state and federal courts throughout the country. It is now commonplace for all types of products — ranging from consumer goods and workplace equipment to pharmaceuticals and medical devices — to be the subject of a product liability claim. The defendants in such a claim typically include the manufacturer and distributor of the item and may extend to rebuilders, reconditioners, sellers of component parts, and others.

The essence of a product liability claim is that the product contained a defect when it left the hands of the manufacturer and that the defect caused the plaintiff to suffer a personal injury. “Defect” in the product liability context means that there was something in the manufacturing design or warning of the product which caused the product to be not reasonably fit, suitable, and safe for its intended purposes. The viable legal theories depend on state law and often include negligence, strict liability, breach of express and implied warranties, and, sometimes, fraud.

The defense of a product liability claim begins with a thorough analysis of the complaint. Often, a plaintiff’s pleading lacks the specificity required to withstand a motion to dismiss. In other instances, the complaint pleads causes of action that fail as a matter of law. Early motion practice should be considered. Depending on state law, there are also a variety of defenses available to the defendant including comparative negligence, assumption of the risk, state of the art and federal pre-emption. Product liability claims often raise complex issues and require the retention of scientific and technical experts to defend them.

The defendant should consider the following when evaluating counsel to defend a product liability claim: prior experience and demonstrated competence in the field; knowledge of the relevant sate product liability law; familiarity with the venue and local judges; and trial experience.

Beth S. Rose, Product Liability Practice Group Chair

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