10 Tips for Negotiating Compensation in a Defective Product Claim

You can recover losses caused by defective product injuries. Use these tips for negotiating compensation from the product manufacturer.

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 sustain 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.

By following the basic steps to negotiating a personal injury claim, you should be able to recoup your losses from the manufacturer’s insurance company.

Here we give you tips for establishing a product liability claim, communicating with the insurance company, and negotiating compensation with the claims adjuster.

Tip 1: Establish a Basis for Your Claim

You have the right to seek compensation for injuries caused by defective products, but first you must establish a valid claim.

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.

There are three general categories of product defects:

  1. Design defects are mistakes or fundamental flaws in a product. The flaws 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 to use the product safely 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 design defect 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.

Every product liability case is different.  You can always consult a personal injury attorney to discuss the value and strength of your claim.

Tip 2: Seek Immediate Medical Attention

The sooner you establish a connection between your injuries and the defective 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.

Tip 3: Watch Out for the Statute of Limitations

Each state has a set of rules for different types of legal actions. The Statute of Limitations is the legal deadline for filing a lawsuit. The deadline in your state for certain types of injury claims might be different than for product liability claims.

For most claims, the statute begins to run on the day you were injured by the defective product.

Pay attention to the statutes that may apply to your claim. Even if you have no intention of filing a lawsuit, the manufacturer and their insurance company won’t give you the time of day after the statutory deadline has expired.

The statute of limitations is separate and distinct from the product’s warranty.

Tip 4: Put the Manufacturer on Notice of Your Injury Claim

When you decide to handle your injury claim without an attorney, you’ll need to put the manufacturer on notice of your claim.

If the manufacturer’s contact information isn’t on the product packaging, you can probably find it online. You don’t have to wait for your injuries to heal before contacting the company.

Calling the company is the first step. You can also send a certified letter, but in this era of instant communications, a telephone call will do just fine.

Your call will typically go to the customer service department. Tell them what happened, how the product was defective and the injuries you sustained. It’s okay to say you are still in treatment for your injuries.

Once you give notice of injury, you’ve started the claim process. You’ll either be told to submit your complaint in writing or that someone will be contacting you shortly.

Either way, it won’t be long before you receive a call from a representative of the company’s insurance carrier. Usually, you’ll get a call or letter from the claims adjuster assigned to your claim.

Tip 5: 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
  • 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

You’ll 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 important information at your fingertips.

Tip 6: Gather Evidence to Support Your Claim

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.

Other evidence that can support your claim includes:

  • Medical records: Request copies of all your medical bills and records, and gather receipts for out-of-pocket expenses like medications, bandages, etc.
  • 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.
  • Witness statements: Get a written statement from anyone who saw the injury event or its aftermath, even if the witness is a family member.
  • Lost wages verification: Get a wage loss statement on company letterhead from your employer detailing the days you missed work because of your injury.

Tip 7: Calculate the Value of Your Claim

You probably won’t know the full value of your injury claim when you first notify the manufacturer of your injury.

You’ll calculate the value of your injury claim after you’ve completed your medical treatment and gathered all your medical bills, receipts, and a lost wage statement from your employer.

Be sure to use the actual cost of your medical and pharmacy bills in your calculations, even if healthcare insurance covered some or all of the cost.

In the meantime, tell the adjuster you don’t want to discuss settlement while you’re still receiving treatment for your injuries.

Tip 8: 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 9: 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 the 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 nuisance value payout.

When you can negotiate with patience and persistence, you should be able to reach a compromise settlement that covers all your injury-related hard costs and includes compensation for your pain and suffering.

Tip 10: Get Help When You Need It

It’s always prudent to talk to a personal injury attorney from the start. Rest assured you can consult an attorney at any point during your negotiations with the insurance company.

When you’ve recovered from relatively minor injuries caused by a defective product, you can probably negotiate a reasonable settlement on your own. However, if negotiations get stuck, it’s good to know you can get the help you need.

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

Most injury attorneys don’t charge for their initial consultation, and there’s no obligation on your part to hire the attorney after a consultation.

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 >>