6 Tips for Proving a Product Liability Claim: Collect the Right Evidence

Winning a product liability case begins with gathering compelling evidence. Use these 6 tips to help build a strong claim for compensation.

Product liability is a generic term for the legal responsibility of manufacturers, retail stores, wholesalers, distributors, and other businesses for injuries their products may cause.

Injuries caused by defective products don’t always lead to a full-blown lawsuit. If you or a family member sustained minor injuries from a defective product, you might be able to get fair compensation directly from the manufacturer. In most cases, that means dealing with the manufacturer’s insurance company.

How to Determine if You Have a Product Liability Claim

Good evidence is vital to any successful injury claim. Here’s the relevant evidence you need to build a strong product liability claim, and why you need it.

6 Tips for Proving Product Liability:

  1. Seek Immediate Medical Attention
  2. Write Down Everything
  3. Gather Evidence of Product Liability
  4. Watch What You Say to the Adjuster
  5. Keep Your Cool While Negotiating
  6. Get Help When You Need It

How to Determine if You Have a Product Liability Claim

When someone is injured by a defective product, the manufacturer may be “liable”, meaning responsible, for the injured victim’s damages. These damages include hard costs like medical bills and lost wages, and also for general damages like physical pain and inconvenience.

Any type of defective product can cause bodily harm. Car parts, furniture, tools, appliances, medications, workplace machinery, and more, are examples of products that have been the focus of product liability lawsuits.

There are state and federal laws, as well as complicated legal theories involving product liability. But for most minor injury claims, establishing liability boils down to showing exactly how the product was defective.

Three general categories of product defects:

  1. Design defects are mistakes or fundamental flaws in a product. The defective designs are usually built into the product when it’s manufactured or occur during later design modifications.
  2. Manufacturing defects happen because of errors in materials or mistakes in building the product. The design may be correct, but something went wrong in the manufacturing process.
  3. Marketing defects (“Failure to Warn”) happen when the manufacturer doesn’t provide the consumer with enough information for safe use of the product or fails to accurately state a product’s benefits.

Think about how you were injured.  If the product malfunctioned, it may be hard to tell if it was caused by a defective product design or a manufacturing defect. However, the simple fact that the product malfunctioned might be all you need for your claim.

You might also have a case if the instructions weren’t clear for using the product or failed to warn you about what to avoid while using the product.

Tip 1: Seek Immediate Medical Attention

The sooner you establish a connection between your injuries and the dangerous product, the better. See your primary care provider or go to an urgent care center.

Be sure to tell every care provider exactly when, where, and how you were injured. That means telling your primary doctor, the tech who takes x-rays, and any other specialist who examines you during recovery.

It’s very important for your medical records to link your injuries to the defective product.

Keep all your medical appointments and follow your doctor’s advice to the letter. Failing to mitigate your damages by ignoring the doctor’s orders to rest, go to therapy, or take medications can undermine your injury claim.

Tip 2: Write Down Everything

Create a detailed diary of every event and communication related to your injury claim. Begin your diary with the purchase date of the defective product and the details of the product, such as name, model number, serial number, and anything else that identifies the product.

Continue your diary with dated entries regarding:

  • The circumstances of your injuries and time of the accident
  • Medical treatment, including provider names, type of treatment, location of treatment
  • Your first call to the manufacturer, including whom you spoke with and what was said
  • All subsequent communication with the manufacturer or the insurance company

Your diary should document your daily pain levels, loss of mobility, activity restrictions, sleep disturbances, and any other way the injuries have impacted your quality of life and activities of daily living.

Use your diary to keep track of offers and counteroffers throughout the negotiation process, all the way through settlement. You will negotiate with more confidence and credibility when you have a documented record at your fingertips.

Tip 3: Gather Evidence of Product Liability

Don’t wait to decide on a product liability action before taking steps to protect and collect evidence. You may not know for months if your injury will turn into a lawsuit. Regardless, you’ll need to prove your case by proving your injuries were directly caused by the defective product.

Hold onto the defective product and any packaging that came with it. If you have the original receipt, make copies and keep the original in a safe place. Don’t clean the product or take it apart.

Ideally, put the defective product into a sturdy storage bag or tote bin and keep it in a safe place. Do not hand it over to the manufacturer or their insurance company unless instructed to do so by your own product liability attorney.

Many jurisdictions have strict liability laws, meaning it’s enough to show that a product caused harm. You won’t have to prove negligence.

You don’t need to prove manufacturer negligence, but you will have to show:

  1. Your injuries were directly caused by the defective product
  2. The scope and long-term effects of your injuries
  3. You did not contribute to causing your own injuries

Types of Evidence to Support a Product Liability Claim

Medical records: Request copies of all your medical bills and records, and gather receipts for out-of-pocket expenses like medications, bandages, etc.

The bills and receipts should reflect the full cost of your medical expenses, even if your private health insurance or workers’ compensation insurance covers some or all of your medical costs.

Photographs: Take photographs of your injuries after they occur, and throughout the healing process. Also take pictures of the defective product from every angle. If applicable, take close-up pictures of the defective part of the product.

If there may be surveillance or security videos that captured the malfunctioning product as your injuries occurred, the custodian of the video (like an employer or store owner) should be put on notice to preserve evidence. A spoliation notice should be sent as soon as possible after your injury, before the films are lost or destroyed. Later, your attorney can issue a subpoena to get copies of the video to use as evidence in your case.

Witness statements: Get a written statement from anyone who saw the injury event or its aftermath, even if the witness is a family member.

Ask the witness to describe in detail when, where, and what they saw happen. Everything they can recall experiencing is important. Was there a crackle or pop? Crashing or banging? Did they smell burning? Hear screams? Feel heat?

Lost wages verification: Get a wage loss statement from your employer detailing the days you missed work because of your injury.

Be sure you have a corresponding note from your doctor directing you to stay off work, even if your employer doesn’t require a “sick note” for absences. Also, the medical records should include your medical provider’s determination that your physical injuries prevent you from working, and for how long.

Tip 4: Watch What You Say to the Adjuster

The first conversation you have with the adjuster can set the tone for the rest of the negotiations. The adjuster will confirm your identity, usually by asking for your name and address. You do not have to provide your social security number or any other confidential information.

The adjuster might ask for permission to record your statement. You are not obligated to provide a recorded statement.

If you decide to give a recorded statement, be very careful. The adjuster will ask lots of questions or may even make statements and ask if you agree.

Anything you say in a recorded statement can be used against you.

Keep in mind the adjuster is trained to find ways to deny your injury claim. For example, they might try to get you to say something that could be construed as an admission that you weren’t using the product correctly.

The adjuster might ask about your injuries and the names of your medical care providers. You will have to share your injury-related medical information with the insurance company, but only provide a limited authorization.

Insurance companies are notorious for asking claimants to sign “blanket” medical release forms that give them the right to sift through all your medical records going back five or ten years. They are fishing for health information, like preexisting conditions they can use as an excuse to deny your claim.

Tip 5: Keep Your Cool While Negotiating

Every claim adjuster has a different negotiation style. Some adjusters come off as rude and abrupt, while others might seem friendly and sympathetic.

Don’t let an obnoxious adjuster bait you into losing your cool. By the same token, don’t let the “sweet” adjuster fool you into confiding information that can be used against you.

The adjuster is never your friend, regardless of their demeanor. Their job is to look out for the insurance company and to protect the manufacturer of the defective product.

  • Stay calm and speak clearly. Make sure to have your thoughts organized before the call.
  • Don’t come across as angry or belligerent. Take a deep breath and stick to the facts of your claim. If you can stay professional, the adjuster will know they can’t manipulate you.
  • Don’t sound frantic or give compromising information. For example, don’t tell the adjuster you are having financial difficulties. They’ll just hold off until you’re desperate enough to accept a low settlement offer.

When you can negotiate with patience and persistence, you should be able to reach a compromise settlement. Your final payout should cover all your injury-related expenses and your pain and suffering.

Tip 6: Get Help When You Need It

You may have more than one cause of action arising from your defective product case, such as breach of warranty and other theories of liability. It pays to discuss your case with a product liability lawyer.

When you’ve recovered from relatively minor injuries caused by a defective product, you may decide to negotiate on your own. However, if negotiations get stuck, it’s good to know you can get the help you need. You can consult an attorney at any point during your negotiations with the insurance company.

Sometimes all it takes is a call from your attorney to get the adjuster to make a fair settlement offer on a smaller claim.

Severe injuries or wrongful death caused by defective products are complex, high-dollar tort claims. You’ll need experienced product liability attorneys to take on a corporate giant who will fight your claim with an army of defense attorneys.

Further, an established product liability law firm will have the financial stability to advance the cost of mechanical experts, product engineering specialists, and other expert testimony necessary to win your case in court. They will also be prepared to take your case through the court of appeals, your state’s supreme court, or federal court, if necessary.

Most injury attorneys offer a free consultation to the injured party. There’s no obligation and if you do hire an attorney, they will typically work on a contingency fee basis, meaning they don’t get paid unless you settle or win your injury case.

It costs nothing to find out what an experienced personal injury attorney can do for you.

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>