Frequently Asked Questions About Product Liability Law, Part III, by Clifford Law Offices’ Partner Richard Burke

Question: Do I need to have the product to file a product liability case?
Rich: For all practical purposes, yes. And I certainly caution consumers to keep and preserve any product that they believe have caused them injury as a result of any defective design. That’s unquestionably the most important aspect of any product liability case. The product is going to be evaluated by us and our experts to determine why the product was defective and how it gave rise to injury. When a lawsuit is filed against a product manufacturer, their lawyers are certainly entitled to inspect the product as well, and one of the first things that really occurs in these types of cases is to have an inspection of the product by both sides. So it is very important to preserve the product and for all practical purposes it is essential to have it in order to successfully prosecute a product liability case.
Question: Who can be held responsible in a product liability case? The retailer or manufacturer?
Rich: The short answer is both. Frequently, and probably more often than not, the manufacturer is the entity that is really responsible or has a good part of the responsibility because they are involved in the design and the manufacture of the product. They frequently are the ones that have designed and placed any warnings on the product itself or the product packaging. However, in Illinois, the retailer or the seller of a product can certainly be held responsible, as well, in many circumstances. If you think about it, it’s really the retailer who is the entity who most likely has had the most recent, and sometimes only, contact with the actual consumer who gets injured. So, particularly with motor vehicles, it’s the retailer that often has persuaded a consumer to purchase a particular vehicle by emphasizing certain features of the vehicle and perhaps not explaining fully all of the risks that might exist in a vehicle, or any other type of product for that matter. So, definitely, a retailer or seller of products can also have responsibility.
Question: What type of inspection of the product do you conduct as a part of an evaluation of a product liability case?
Rich: The nature and scope of the inspection certainly varies depending on the particular product. In any case, certainly there is an initial inspection that consists primarily of a visual-type inspection. Often it involves taking pictures and taking measurements. Sometimes activating or turning on a product. That is usually a preliminary type of inspection. Secondly, in almost all product liability cases, there is a more detailed inspection where some component part of the product is taken apart or dismantled so that experts hired by both sides can have an even closer look at the design of the product, and make a determination as to why the product failed and why it gave rise to injury. Those type of inspections certainly should not be done until a lawsuit has been filed and both sides are involved in a case. When I say both sides, I mean the attorney on behalf of the injured consumer and the attorneys for the manufacturer or seller of a product. That is what we refer to as a destructive inspection of a product, where it literally is dismantled to some extent, and usually there is a protocol or procedure that is agreed upon by lawyers for both sides to accomplish a proper dismantling of the product.
Question: Can a person who is injured by a product be successful in a product liability case, even if he or she did not personally buy the product or if he or she was not using the product?
Rich: Certainly a person has to be using the product in order to bring any type of product liability claim. The exception there would be if you are an heir of somebody who has been killed. But with respect to the first part of that question, yes, it does not necessarily matter if you personally have purchased the product. We often see passengers in vehicles injured, and they are not the owner of the car or the truck or the SUV, but they are fully entitled to bring a product liability claim if they have been injured as a result of some defective or unreasonably dangerous condition in that vehicle. Essentially the law protects users of products as long as they are using it in an expected manner and are doing so generally in accord with the directions and instructions on the product.