By Kevin M. Quinley
Want to win product liability claims? The foundation of winning lies in a good investigation. Let's look at some practical tips in approaching product liability investigations. Follow these three steps to turbo-charge your product liability claim investigations:
Tip #1: Get the product. Assume a claim arises before litigation has started. Typically, a medical device manufacturer first learns of a claim through a hospital or physician complaint, either by phone or mail. The first step is to obtain the product involved in the accident or injury. This way, the investigator—the manufacturer, insurer, claim adjuster, or defense attorney—can examine it early and assess whether an accident was due to genuine device failure or to some other factor, such as failure to read or heed the instructions, physician technique, or poor patient selection.
Since the consumer owns the product, unless he or she relinquishes it, astute manufacturers will make it easy and attractive for customers to return products which have been involved in an accident or claim. The techniques include:
- Requesting return of the product, so that you can examine it and make sure no further accidents occur;
- Offering to exchange the old product for a new one;
- Offering to refund the purchase price in exchange for returning the product;
- Making return of a product easy by offering to pick it up, to pay for shipping and handling charges;
- Offer some premium, such as another product, or discount off the purchase of another product.
These approaches are not only useful for regaining possession of the device in question. They also build customer goodwill and lower the odds of facing a formal claim for damages. In the final analysis, though, it is up to the product buyers whether or not to return the product and if they refuse these inducements, the device company has a tougher job in getting early access to the product for examination and testing. Persistence and creativity may pay off here, however.
Tip #2: Observe common-sense after obtaining the product. Once you get the product, tag it and keep records of when and where you store it for chain of custody purposes.
Do not undertake any testing without first clearing it with your insurer or your attorney. They may want safeguards in place to make sure that test results are privileged, especially if the test results turn out to be unfavorable. "Privileged" communications means that they are confidential and do not have to be divulged or disclosed.
The author handled one claim involving a motorized three-wheeled scooter. The lawsuit claimed that it flipped and tipped going up an incline. The claimant's head injuries were very severe, and the elderly woman who rode the scooter later died. Mid-way into the litigation, we learned to our horror that the manufacturer had—post accident—conducted a homemade experiment to try to re-enact the accident. Neither the product liability insurer nor the defense attorney were aware of this "testing." Unfortunately, the tests did replicate the flip-over. At this point, we began worrying, fearful that the tests, which were not protected by attorney-client privilege—would be disclosed and cripple our liability defenses. We thereafter settled as quickly and as cheaply as we could.
Moral: Do not test on your own without first discussing it and clearing it with your insurer or attorney.
Tip #3: Identify the device. If you cannot obtain the product in question, the next best option is to gain access to it to inspect it.
A product inspection should aim to:
- record the model, lot, and serial numbers;
- confirm or rule out the identity of the actual product manufacturer;
- get good color photographs;
- check for signs of product abuse, misuse, or shoddy maintenance. For example, a worn, scuffed or jerry-rigged product condition may imply certain defenses which the manufacturer can employ.
Often, despite best efforts, a device manufacturer may not be able to obtain possession of the product. Perhaps the end users do not trust you enough to relinquish it. Or, they realize that it could be a crucial piece of evidence. If the claim is not yet in a lawsuit phase, an attorney may be reluctant to relinquish the product, lest someone else lose or alter it. Sometimes no one has the device because it has been lost, destroyed, discarded or consumed.
Usually, the medical device inspection occurs at the office of a lawyer. In other cases, the product inspection may be in the home of the claimant/consumer-user. Or the device inspection may be at a hospital or a physician's office. After the device manufacturer obtains permission it often helps having the inspection performed with a technical or product representative from the manufacturer. Typically, these persons have much greater expertise than even the best attorney or claims adjuster. They will know what to look for in assessing whether or not a product incident involves a device defect or malfunction, or is due to some other cause.
These three steps will lay a strong foundation for product liability defense and may provide sufficient ammunition to keep you out of court.
Kevin M. Quinley, CPCU, is Senior Vice President, Risk Services, MEDMARC Insurance Co., Fairfax, VA. He can be reached at firstname.lastname@example.org.