Preserving the Evidence: Never Give Up a Defective Product

26 Feb, 2016
By: Donald W Fohrman
Preserving the Evidence: Never Give Up a Defective Product
  • A product defect exists or the product was inherently dangerous.
  • The injuries are a result of the defect.
  • The injury occurred while using the product according to instructions.
  • They didn’t misuse the product.

If an injured person has any hope of proving any of these elements of their case, they must remember the most important thing about successfully pursuing a product liability claim: Never give up the product – never return the product to the manufacturer.

In recent years, drugs and medical devices have been getting the bulk of product liability press. These cases present product-related injuries, but a wide variety of other product cases are far more common. Injured men and women regularly seek treatment due to appliance, tool and auto malfunctions. Children are injured due to improperly designed and manufactured toys, furniture, and nursery equipment. Defective product details are regularly documented on the Consumer Product Safety Commission website,

What is a Product Defect?

A defective product can involve more than just a glitch or a malfunction that causes injury. A product defect includes a range of situations.

  • Design and manufacturing defects
  • The product is not fit for the intended use
  • Packaging defects or labeling errors
  • Inappropriate marketing or advertising
  • Faulty maintenance

Preserving Product Liability Evidence

Products cause injuries every day. It’s up to the injured party to preserve and document the evidence that can aid their Illinois personal injury lawyers in successfully filing a lawsuit or presenting an informal claim for damages.

Medical treatment

When a person believes they have been injured by a defective product, medical treatment should be the first consideration. A doctor or hospital visit confirms the injuries. An injured party’s version of the incident is usually documented by the medical staff. Medical records also preserve information on the date and time of the injury and the date and time of treatment.

Claim documentation

A product injury incident scene should be treated similarly to an auto accident scene. The information generated from the date and time of the incident should be documented and organized in a file for future presentation to the Illinois personal injury lawyers who will handle the case. The claim folder should include:

  • Photos of the product immediately after the incident
  • Receipts, instructional brochures, packaging and anything else related to the product
  • The injured person’s written account of the occurrence
  • Witnesses statements
  • Manufacturer information and correspondence
  • Medical bills and reports

Notice to the responsible parties

When a product-related injury occurs, the injured person must make a report to the persons responsible for placing the product on the market. Those parties may include:

  • The manufacturer, whose name is printed on packing and marketing literature
  • The distributor, who might also be listed on the package
  • The retail outlet where the product was purchased
  • Any business involved in the chain of distribution that placed the product for sale
  • If the product has been altered, the person who altered it
  • Any company that regularly maintained the product

Insurance company investigation

Businesses should have liability insurance that covers product liability claims. Major manufacturers often self-insure for product liability and other exposures. This allows deniability control over claims. As with auto accidents or slip and fall cases, a claims adjuster or some other claim representative will conduct an investigation to determine liability for the faulty product. They will begin by asking for a written or recorded statement as to how the injury occurred.

An injured person should never give up the product

The most crucial part of a product liability adjuster’s job is convincing the injured party to give up the allegedly defective product. The manufacturer wants the defective product to confirm or disprove an alleged defect. The insurance company wants it to evaluate the injury claim and set a claim reserve. An injured party and their Illinois personal injury lawyers will need it for similar reasons. Once a product is turned over to an adjuster or some other liability representative, the proof that a defect exists is out of the injured party’s hands.

Once the product has changed hands, it diminishes the possibility of independent product testing. Manufacturers who test their own products may produce biased results. A tester might perform destructive testing, a process that tears down the product. When this takes place the re-assembly might not duplicate the defect.

When an injured person does give up a defective product, it should be under circumstances that allow continued control. An individual may contract to have their own expert test for a defect. It can be costly, but if the injuries are serious, it can be worth the price.

Category: Personal Injury

About The Author

Photo of Donald W Fohrman
After completing law school Donald became an assistant Attorney General for 7 years and was assigned to the Industrial Commission Division. During that time he spent evenings establishing his own firm. Donald became a founding partner of a large workers’ compensation/personal injury firm but decided to leave the firm in 1990 to start a smaller “boutique” firm with the belief that bigger isn’t always better!
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