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Products Liability: Pre-Litigation and Investigation

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Victims who’ve suffered losses as a result of defective products have the right to seek compensation for their damages by pursuing civil injury lawsuits based on products liability. While victims have a right to recover damages, compensation is never guaranteed – especially when corporate defendants and insurance companies do all they can to pay victims as little as possible.

Overcoming legal obstacles like these requires the insight and experience of proven personal injury lawyers. At Biren Law Group, our award-winning Father-Son legal team leverage decades of experience and extensive resources to help clients address the most challenging aspects of their claims.

In many cases, and especially in those involving products liability, this means making the right moves during pre-litigation investigations and discovery to preserve evidence, get the right experts on board, and effectively determine liability.

5 Components of a Products Liability Investigation in California

Though there are many moving parts in products claims, and while every case is different, there are a few key areas of focus that demand prompt attention. These include:

1. Product Preservation

Preserving evidence is a crucial part of preparing a products liability case. Without a product, it can be extremely challenging, if not impossible, to prove a case. The product itself will allow experts and juries to make a connection between a defect and a victim’s injuries, and should be treated as the most important piece of evidence in your claim.

Victims who suspect accidents and injuries were caused by a defective product should preserve the product and related evidence as best as they can. This means:

  • Keep the product or as much of its parts, pieces, and packing as possible.
  • Do NOT repair or replace the product, or discard broken components.
  • Save any manuals and instructions that came with the product, if possible.
  • Keep receipts from the purchase of the product, as well as any reports and records from the accident and medical treatment you received.
  • Take or save photos and videos of the product and any property damage and / or injuries it caused.

While victims can preserve a product by simply not throwing it away or safely storing it in their homes, this may not be a sufficient preservation method should it come time to pursue legal action. In order to avoid potential disputes from the defense and chain-of-custody issues, victims should retain counsel as soon as possible so the product can be properly preserved.

  • If a product is in a Plaintiff’s possession and control, working with an experienced attorney can ensure the product is moved to a professional evidence facility where it can be securely and safely stored, and accessed by experts, the Defense, or the Court when necessary.
  • If the product is not in a Plaintiff’s possession or control, victims can work with attorneys to send a preservation of evidence demand as soon as possible. For example, if the defective product is a piece of industrial machinery owned by a company, court procedure can be used to obtain permission to inspect the machine before the owner repairs or replaces it. In some cases, an attorney may purchase the product and move it to an evidence preservation facility (such as when a wrecked vehicle is in a salvage yard), or ask the court to prevent the opposing party from using, changing, or repairing the defective product until litigation is resolved.

Although the best course of action will vary depending on the particular product and the type of product liability case, working immediately to preserve a product not in your control is crucial. However, it can be a difficult task that requires legal intervention and the assistance of experienced counsel.

By working with legal representation, Plaintiffs can follow court procedure to put a Defendant or insurance company on notice. If a Defendant or insurance company fails to preserve evidence after notice to do so, they can be sanctioned if the evidence is lost or altered (Cedars-Saini Medical Center v. Superior Court (1998) 18 Cal.4th 1).

In the event a Defendant alters or destroys evidence, spoliation of evidence rules may provide Plaintiffs with legal remedy, such as a Court instructing the jury to presume destroyed evidence is damaging to the party that destroyed it, or preventing the opposing party from presenting defenses to the claim.

2. Consulting Experts

Hiring the appropriate experts for your case is crucial, as they can provide insight and testimony to:

  • Evaluate the merits of a potential claim and likelihood of success;
  • Establish that a design defect, manufacturing defect, or marketing defect was the cause of a Plaintiff’s injury;
  • Prove a product could have been designed in safer way; and / or
  • Prove damages and scope of a victim’s past and future losses.

To address these issues, various experts and specialists may be used, including:

  • Medical experts: In cases where a particular defect is obvious or already well-established, all that may be required are medical experts who can provide their opinions about a victim’s injuries, how it has impacted their lives, and what, if any, medical issues they will face in the future. In addition to proving damages, medical experts may also be used to demonstrate links between certain products and a Plaintiff’s injuries (i.e. proving a connection between products containing harmful substances and the development of an illness).
  • Industry experts: If a Defendant disputes liability or there are uncertainties regarding the nature of a defect and how it caused harm, it may be necessary to work with experts who have sufficient understanding, training, and experience in a relevant field or specialty. Depending on the product and the case, this may be a manufacturing expert who understands industrial machinery and workplace operations, a civil engineer who has designed roads and infrastructure, or a motor vehicle industry expert who can explain best practices for designing and testing vehicle components, among other specialists.
  • Engineering experts: Engineers and other highly skilled professionals can help juries better understand how certain products function (or should function) by explaining complex matters of physics, architecture, biology / physiology, or structural integrity, or concepts involving mechanical, electrical, automotive, audio, computer, communications, agricultural, or chemical engineering. Consulting an engineering experts can elicit needed insight to pursue viable claims, and help prove how a product caused injuries and / or why a product is defective.

Products cases can be won or lost based on expert testimony, which is why it’s crucial to work with experienced attorneys who have established connections with qualified specialists, and a network of resources to property vet and prepare experts crucial to your case. Plaintiffs’ attorneys who handle products cases should also know how and when to keep experts apprised of new information and documentation obtained during investigations in order to obtain continuous insight about any potential impact on a claim and its ultimate outcome.

Similarly, attorneys who have experience working with expert witnesses can prepare questions for experts used by the Defense, as well as arguments to rebuttals based on a Defendant’s expert testimony.

At Biren Law Group, we work with a range of experts who assist our team in evaluating products to determine how they are defective, how they harmed our clients, and what our chances of success in litigation look like. These evaluations help shape our arguments and investigations, and provide the necessary insight to support our clients’ claims throughout the life of their case.

3. Obtain Other Investigations

Serious accidents will often result in various reports and documentation, be they from Police, the Fire Department, Emergency Medical Responders, or other government agencies. For example:

  • If a case stems from an industrial accident or an accident involving a worker, regulators from the Occupational Safety and Health Administration (OSHA) will often conduct investigations. Though these investigations focus on regulatory violations and potential citations against employers, their findings may be beneficial if government regulators or third-party experts find a defective product to be the underlying cause.
  • If an accident occurs on the job and the Plaintiff is eligible to receive workers’ compensation benefits, the employer’s insurance carrier may conduct a subrogation investigation and be willing to share it with the Plaintiffs’ counsel. Union representatives may also be a source of helpful information.
  • Accidents involving auto defects may give rise to accident reports compiled by responding law enforcement officers. These reports can contain information that is helpful for Plaintiffs who pursue legal action, including information about what occurred, and the names and contact information of the parties involved.
  • If a product is of a specific type or regulated by a government agency or private regulatory body, related investigations or studies from these sources can be an essential source of information. This could include information crash testing data from an agency like NHTSA (the National Highway Traffic Safety Administration), record of prior incidents from OSHA, the FDA, FMCSA, or the CPSC, and various reports or studies from other entities into matters of compliance, industry recommendations, safety, and cost-effective remedies to dangerous conditions associated with the same or similar products involved in a case. In some cases, performing a patent search can reveal whether a manufacturer, or manufacturers of other similar products, have developed methods of creating safer products.

Information from third-party sources can be an invaluable source of evidence, and provide guidance to Plaintiffs’ attorneys as they continue to investigate and prepare a case. Though there are means of obtaining information directly from defendants, Plaintiffs’ attorneys should not expect Defendants, and particularly those in products liability cases, to be forthcoming with an abundance of helpful information.

4. Identify & Speak With Witnesses

Witnesses can play a valuable role in any personal injury case. As part of pre-litigation investigations, an experienced attorney can identify witnesses who saw the accident, and interview them about how the product was used and how it may have malfunctioned or caused injury. If it is helpful to the case, witnesses can also be statementized.

Other “witnesses” may also prove helpful. This could include various persons from the Defense, such as a product manufacturer, a distributor, or a retailer responsible for the product, or persons involved in processes that brought the product to the Plaintiff, such as an employer or supervisor.

5. Discovery

Discovery is the formal process during which information and known facts are exchanged between both parties in a case. The process functions as a means to obtain and disclose the evidence and position of each side of a case so all parties involved can make informed decisions about their available options.

Discovery can be a powerful tool for developing the themes and arguments of a claim, and can shape negotiations and settlement offers, or decisions to move forward with trial.

No matter what type of products liability claim is involved, a well-prepared Plaintiffs’ attorney is one who goes into discovery knowing what law will be given to jurors at trial, and what evidence needs to be obtained and provided to satisfy the jury instructions (i.e. those contained in CACI 1200). Some common methods of discovery are described below.


Interrogatories are written questions submitted by one party in a case to the other, who must answer them. In products cases, interrogatories can be a useful tool for obtaining critical information, and making the Defense work and be alert to meritorious cases.

Interrogatories can help elicit information about:

  • Any prior accidents and / or claims involving the same or comparable products (i.e. warranty claims, personal injury lawsuits, government investigations, or past failures involving substantially similar, dissimilar, or different products, etc.)
  • The history of the product’s design and the people involved, including product research and development, crash testing, design alternatives, etc.
  • Critical documents such as engineering plans, correspondence regarding repairs, alterations and revisions, modifications, maintenance, etc.

Demands for Production of Documents

Plaintiffs’ attorneys who handle products liability cases should attempt to obtain every available document regarding the product involved, and may do so by submitting a demand for production of documents.

Per California Code of Civil Procedure (CCP) § 2031.280, the party who receives a demand must produce requested documents by the requested date and in a form in which such documents are ordinarily maintained, unless requested otherwise. These demands can seek:

  • Any and all documents which discuss the design and manufacturing process.
  • Internal memos, meeting minutes, reports, summaries, and other recorded correspondence or documents regarding a product.
  • Documents regarding proposed or actual revisions / changes to the product.
  • Documents regarding any complaints about the product.
  • Information regarding recalls or patents.
  • Warnings, instructions, and any revisions
  • Documents about prior accidents and claims.
  • Documents of remedial measures (in strict liability claims)

As mentioned, Defendants are apt to stonewalling requests for documentation and information in products cases, which is why Plaintiffs’ attorneys should be prepared to bring at least one motion to compel discovery.


Because Defendants in most products cases are companies, the most efficient way to obtain critical testimony is by setting a subject matter deposition, combined with a demand for production of documents.

A deposition is an out-of-court statement given under oath by parties involved in the case. In subject matter depositions, the Defendant has to produce the most knowledgeable or qualified person to speak on the subject.

Once attorneys obtain as much information as possible through informal investigation, discovery, and a subject matter deposition, key people with involvement in the development or production of the product can be deposed. Retained experts should be kept apprised of the information obtained through deposition in order to continually assess the strengths and weaknesses of a claim, and provide attorneys with insight and guidance about moving forward.

Questions About Your Products Case? Biren Law Group Can Help.

Biren Law Group has recovered millions for victims of defective products, and is readily available to help victims, families, and fellow attorneys evaluate the merits of their potential case. Based in Santa Monica, our legal team proudly serves clients across Los Angeles and Southern California. Call or contact us online to speak with an attorney.