7 Tips to Negotiate Higher Injury Compensation in a Product Liability Case

Increase your compensation for a defective product claim. Learn how to negotiate higher payment for your inconvenience and emotional distress.

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

Product liability claims for serious injuries are complex cases. They should be handled by a skilled attorney to get anywhere near the amount of compensation deserved.

However, minor injury claims can often be settled by negotiating with the manufacturer’s insurance company. If you’ve already negotiated your hard costs, we’ve laid out some tips that might help you get fair compensation for your inconvenience and emotional distress.

Tip 1: Manage Your Expectations

The insurance business is just that – a business. The claims adjuster’s job is to save the insurance company’s money and protect the interests of the product manufacturer. As nice as they might seem, when adjusters negotiate a claim, they won’t give away one dollar more than is absolutely necessary.

If negotiations have gotten past your hard costs, the insurance company has probably accepted at least some liability for the actions of their insured, although they won’t come right out and admit the manufacturer did anything wrong.

Instead, the adjuster might say they’re willing to pay some of your claim as a “goodwill” gesture, but they will dig in their heels if you ask for more than your actual expenses from the injury.

Your best chance at convincing the adjuster to boost your compensation is to carefully describe the pain and distress your injury caused, and back it up with evidence.

Tip 2: Include All Your General Damages

Insurance adjusters never value pain and suffering as highly as the injury victim does. That said, no one knows better than you how your injury has impacted your daily life.

The phrase “pain and suffering” has become a euphemism for what insurance companies call general damages, meaning harm you suffered in ways that have no objective measurement.

General damages can include:

Your general damages claim should be in proportion to your physical injuries. Adjusters are always on the lookout for exaggerated injury claims and won’t hesitate to deny your claim if you don’t seem credible.

Tip 3: Ask for a Reasonable Amount of Money

You can calculate the value of a minor injury claim by adding up your hard costs, then adding one or two times that amount for pain and suffering.

It never hurts to ask for the higher end of your calculation in your initial demand for compensation, with the understanding that you’ll negotiate down from there. Sometimes you’ll need to come way down to settle your claim.

Example: Injured Fingers from Defective Stair Climber

Sam was assembling a new stair climber for his home gym. As he was attaching one section to another, the connector failed, pinching his fingers between two pieces of metal.

Sam went to urgent care to treat his injured fingers. X-rays ruled out any fractures and Sam did not need stitches. The injured fingers were treated with antibiotic ointment and some band-aids. Sam was given a tetanus shot and told to use ice packs for a day to reduce uncomfortable swelling.

Sam notified the manufacturer of the defective exercise equipment of his intent to file an injury claim. He was later contacted by an adjuster from the manufacturer’s insurance company.

Sam didn’t miss any work. His “hard costs” for medical care added up to $800, including the X-rays. He added two times that amount ($1,600) for “pain and suffering” and made an initial settlement demand of $2,400.

Sam didn’t expect to get much over his hard costs for injuries that only needed a few band-aids, but he knew it was a smart negotiation tactic to work down from a higher (but not ridiculous) number for the best results.

After some back and forth with the adjuster, Sam settled his injury claim for $1,500. Because Sam has evidence of spending several hours at urgent care, and pictures of his cut and swollen fingers, the adjuster agreed to pay the $800 in hard costs and an additional $700 for Sam’s discomfort and inconvenience.

Tip 4: Gather Evidence to Support Your Damages

It’s up to you to give the insurance adjuster a good reason to pay anything over your hard costs for minor injuries.

The more evidence you can provide about your physical discomfort, emotional distress, and injury-related inconvenience, the easier it is for the adjuster to justify a bigger payout.

Evidence to support “pain and suffering” might come from:

  • Notes in your medical records detailing your pain, itching, swelling, or other physical manifestations of your injuries
  • Doctor’s orders restricting you from lifting, using your arm, or bearing weight on your foot or leg
  • An injury journal, with dated entries about your pain levels, reactions to medications, and sleep disturbances
  • Witness statements describing the event of your injury, or subsequent need for assistance with activities of daily living
  • Time-stamped receipts and records indicating long hours spent at medical appointments or urgent care

Tip 5: Emphasize How the Injury Affected Your Life

Even relatively mild injuries, like smashed fingers or toes caused by a defective product, can affect your activities for days or even weeks. Without exaggerating, you can use vivid language to describe how your injuries impacted your life.

Backed up by your medical records and other evidence, describe how the pain from your injuries and the limitations ordered by your doctor interfered with your normal activities of daily living.

Your pain and suffering might include:

  • Side effects of medications, like nausea or diarrhea
  • Having to avoid sunlight because of skin reactions
  • Inability to use your dominant hand for writing, typing, or other activities
  • Inability to prepare meals
  • Inability to care for elderly parents or young children
  • The discomfort of using crutches
  • Needing help with bathing and dressing
  • Inability to engage in intimacy with your partner (loss of consortium)

Tell the adjuster that you would not have gone through any discomfort or inconvenience had it not been for the injuries caused by the defective product.

Tip 6: Be Willing to Compromise

The first hurdle is getting the adjuster to agree to pay your hard costs, including:

  • Medical bills
  • Out-of-pocket expenses (e.g. medications, bandages, crutches, etc.)
  • Lost wages
  • Transportation expenses (e.g. mileage and parking fees for medical appointments)
  • Damaged personal items (e.g. eyeglasses or clothing)

So long as the adjuster is covering your expenses, you won’t be taking a loss, but it’s reasonable to continue negotiating for more.

The insurance adjuster isn’t obligated to pay anything for pain and suffering, but you can probably persuade the adjuster to pay a little more by negotiating with patience and persistence.

Professional negotiators know that settling requires compromise on both sides. How much you’re willing to compromise is up to you. But always look at the big picture before refusing a settlement offer.

The manufacturer, through the insurance company, is probably willing to settle your minor injury claim as a customer service gesture, without admitting fault for any product defects.

If negotiations fail, your only option may be to file a lawsuit against the manufacturer.

A lawsuit will change everything. For example, you will:

  • Sue the manufacturer, not the insurance company
  • Face off against an army of corporate defense lawyers
  • Likely be accused of wrongfully using the product

Lawsuits against big manufacturing companies are expensive and time-consuming. Corporate litigation can drag on for years.

Tip 7: Get a Professional Legal Opinion

Don’t wait for negotiations to fall apart before consulting an experienced personal injury attorney. You can talk to an attorney at any point throughout your claim negotiations.

You can make better decisions after getting a professional legal opinion on the value of your claim and the pros and cons of a lawsuit.

Sometimes all it takes is a call from your attorney to quickly settle an injury claim with the manufacturer’s insurance company.

Most injury attorneys don’t charge for their initial consultation, and there’s no obligation. It costs nothing to find out what a skilled 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 >>