A driver is injured when a component in his vehicle breaks down due to a design defect. A woman suffers injury when an implanted medical device fails to perform. A child on medication has an adverse reaction that the manufacturer knew could occur but failed to disclose. All these may amount to product liability cases.
Do I have a case?
In New York, a person injured by a defective product may be able to sue under any of several theories:
- Negligence, where the defendant failed to act reasonably in the design, testing, manufacturing, inspecting, marketing, or selling the product.
- Breach of express warranty, where the product did not perform as advertised.
- Breach of implied warranty, where the product was not fit for the ordinary purposes for which such goods are used.
- Strict liability, where manufacturers and sellers are liable for manufacturing flaws, design defects and inadequate warnings.
Whether your case fits into one or more of these categories can be determined only through careful investigation of the facts. That’s why it’s important to consult an attorney before it’s too late to bring a lawsuit.
Do I still have time to bring a lawsuit?
Statutes of limitations impose time limits for bringing a lawsuit. If you miss the statute of limitations deadline, you cannot bring a claim even if the facts are on your side.
The time to bring a product liability claim’s statute of limitations will vary depending on the legal theory involved. Cases based in negligence or strict liability must be brought within three years of the date of the injury complained of. For cases involving exposure to toxic substances, the time to bring a lawsuit runs from when the injury was discovered, not when the victim was exposed to the substance.
A case based on breach of warranty must be brought within four years of the delivery of the product. This means that, where the product passed from manufacturer to distributer to retailer before being delivered to the consumer, the limitations deadline may differ as to each potential defendant.
What happens after a consultation?
The first step in any product liability investigation, even before bringing a lawsuit, is to obtain the product at issue and any documents that came with it, such as package labels or instructions and disclosures included inside the packaging.
Another important preliminary step is to review the relevant medical records, not just to evaluate the injury but, in cases of drug or toxic substance exposure, to determine when exposure occurred and when the injury was discovered. Complete and accurate copies of the relevant medical records must be obtained.
We then examine the records and, if there appears to be a product defect which caused injury or death, we are able to represent you in connection with the case.
Once a case is begun, there is extensive pretrial discovery. This is where the parties exchange all relevant evidence. The parties will also have to appear for depositions, and answer questions under oath. These are usually done in a conference room rather than in court, but the transcripts of such depositions can be evidence at trial. Injured parties also usually have to appear for an examination by a physician hired by the defendants, who are entitled to confirm the injuries claimed.
Pursuing a personal injury action always requires retaining expert medical witnesses who can and will support the plaintiff’s claims at trial.
In many product liability cases, where numerous consumers were injured by the same product and therefore have similar cases, courts often consolidate cases from all over the country into one venue. This makes the discovery process more efficient in such large cases. It also means, however, that your case may be heard in a court far from New York State. Proceeding through “multidistrict litigation,” as this is called, is a concern for your attorneys. But the plaintiffs should know that the progress of their individual case may be affected by a court’s scheduling of several other similar cases.
While cases may settle before trial, it has been our experience that the best way to achieve a satisfactory settlement for a client is to be fully prepared and ready to proceed to trial.
At the end of discovery — which can run a year or more, especially in multidistrict litigation — the parties may get a trial date. That will likely be months away, during which the parties might reach an agreement to settle the case, or one party might prevail in a motion for summary judgment and win the case without going to trial.
If you think you may have a product liability claim, contact the DelliCarpini Law Firm for a free consultation. We’ll answer all your questions and determine whether you have a claim. Contact us online or call us at 516.307.8818.