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Physical Injury in Product Liability Cases

What Is a Defective or Unsafe Product?

Filing a Product Liability Lawsuit

How Complicated Is a Product Liability Case?

Defective Product Evidence

Q. What is a defective or unsafe product case?

A. Product liability refers to the fact that a manufacturer of a product is liable or responsible for design defects which can cause the product to be dangerous to the user. Product liability involves some type of defect in the design or manufacture of a product. The defect must make the product unreasonably dangerous for its actual use or any reasonably foreseeable use. A manufacturer may also be responsible for failing to provide adequate warnings about the product. Examples of product liability cases might include defective airbags in an automobile, defective tires (as recently occurred with respect to Firestone tires and Ford Explorer vehicles), defective medical devices (such as the Sulzer-Medica Hip Implant) and Fen-Phen (a diet drug where claims were brought against American Home Products for failing to adequately test and warn physicians and consumers concerning risks of taking the medication).

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Q. How complicated are product liability cases?

A. Product liability cases are frequently extremely complex and expensive to pursue. These cases often require hiring numerous expert witnesses. Evaluation of thousands and sometimes hundreds of thousands of documents may be necessary. The expense of investigating and litigating a product liability case can easily exceed $100,000. For these reasons, attorneys normally do not handle product liability cases unless the damages are severe enough to justify the tremendous investment of time and money.

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Q. How long do I have to file a product liability lawsuit?

A. In Arkansas, the statute of limitations in a product liability case is three years from the date that the person knew or should have known he or she suffered injury. There are potential exceptions which either shorten or lengthen the time within which a lawsuit must be filed. For this reason, anyone who feels that they may have a product liability case should immediately contact an attorney. From a practical standpoint, time is very important in terms of preserving the defective product, interviewing witnesses, and taking other steps to ensure that all important evidence is secured. Injuries which occur in other states may be subject to different statutes of limitations, some of which may be as short as one year.

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Q. How quickly should I contact an attorney?

A. To be safe, you should talk to an attorney as soon as possible, especially if the injuries are severe or a death has resulted. All too often valuable evidence disappears, witnesses move, memories grow dim, and the practical ability to prove your case may diminish. If you are still being treated by a physician, an attorney can also provide you with guidance concerning your medical care and help you deal with unpaid bills and getting needed treatment.

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Q. What if the product was manufactured outside of the United States?

A. Generally, companies who sell products within the United States are subject to being sued in our courts. As a further protection to the consumer, the distributor or supplier of the product can also be held legally responsible. In other words, if Walmart sells a defective product which was manufactured in China, Walmart could be held responsible to the consumer.

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Q. Must I have some type of physical injury in order to bring a product liability action?

A. Most product liability actions involve serious injury or death. A product may, however, cause injury to property. An example might be a defective space heater which short circuits and causes a home to burn. In this instance, the property owner could bring a products liability case against the manufacturer or supplier of the heater.

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Q. What if I don’t have medical insurance and am concerned about paying my medical bills, or I am concerned about getting treatment that I need?

A. Even if the insurance company for the party at fault agrees that their insured was responsible, the insurance company will seldom pay your bills unless and until you settle the case. In the meanwhile, the medical providers will look to you for payment and will turn you over to a collection agency if you do not pay. The fact that the treatment was the fault of someone else does not relieve you of primary responsibility for the bill. To assist you, your attorney may be able to provide a “letter of protection” to the medical provider or the collection agency, getting them to stop collection efforts in return for an agreement to pay the bill out of any settlement or judgment. If you need additional treatment, an attorney may be able to assist you in finding a medical provider who will treat you in return for a letter of protection.

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Q. Will it cost me any money to bring a product liability claim?

A. The Brad Hendricks Law Firm, like most others, usually handles product liability cases on a contingency fee basis. We advance the costs of investigating and taking the case to trial and receive a percentage of the settlement or judgment when funds are recovered. If no funds are recovered, then there is no fee and the law firm normally absorbs all expenses associated with the case. An attorney could be hired and paid an hourly rate, but this is extremely rare because of the tremendous investment of time and expense associated with product liability cases.

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Q. Can I make a claim for punitive damages?

A. Punitive damages are only available in instances of intentional misconduct or instances of extreme recklessness or “gross” negligence. Most cases of negligence are not obviously reckless or gross enough to qualify for punitive damages, but if the court makes punitive damages available to be awarded by the jury, they may award punitive damages to punish the wrongdoer and provide an example to discourage others from similar conduct. The financial worth of the defendant may also be considered by the jury. An example of punitive damages might be to punish a trucking company for knowingly allowing an alcoholic to operate an eighteen wheeler, or to punish a physician for operating on a patient while under the influence of drugs, or to punish a drug company for placing profits above safety in warning physicians about its product. Some states have limitations on the rights of a jury to award punitive damages.

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Q. Are there alternatives to going to court?

A. Alternate dispute resolution (ADR) is a growing area of the law. Is it generally voluntary but can be court ordered. There are two types of ADR. One is mediation, which is a settlement conference conducted by a trained mediator. Any settlement negotiated in mediation must be agreed to by all sides. Arbitration is another form of ADR. In this instance the parties agree upon an arbitrator (normally an attorney and frequently a former judge) who will serve as the judge and jury and decide issues of fault and award damages. The findings of the arbitrator are normally binding on all parties.

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Q. How long does it take for a case to go to trial once it has been filed?

A. When someone files a lawsuit they get in line with everyone else who has a lawsuit pending. Normally the courts try to schedule the oldest cases first, but any scheduling has to take into account the trial schedules of all of the attorneys who are involved. Also some judges travel to different courthouses and only hold trials during certain times of the year, rotating the same courtroom among other judges. Criminal cases normally have priority over civil cases and may result in a civil case being postponed or “continued” to a new trial date. The complexity of the case may also have an effect on how soon a trial date can be obtained. It is easier to schedule a one-day trial than a trial which will last two or more weeks. Waiting for their day in court can be a very frustrating experience for a litigant, especially if the trial date is rescheduled several times. Since there are so many different variables, this is a question which really must be answered on a case by case basis by your attorney.

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Q. Is technology important to my case?

A. Technology is more and more important in today’s world. Lawyers now use case management software to track deadlines and to provide reminders, as well as document damages, witnesses, and valuable case data. Research available over the internet and CDs replace the massive legal libraries that once were necessary. Intraoffice e-mail and internet e-mail allow for rapid and efficient communication—often better then utilizing the telephone. Letters and documents may be e-mailed, edited, and returned, avoiding the delays of the postal service and the inability to edit fax transmissions. Laptop computers can carry images of massive numbers of documents and depositions. During trial the laptop and digital projector can be used to present video depositions, exhibits, and visual aides to assist the jury in understanding often complex and technical issues. Generally, the more complex the case and the more serious the damages, the more technology can be used to maximize the odds of winning and the amount of the verdict. You should ensure that the firm you hire has the necessary technology to present your case in the most effective way possible.

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Q. What should I look for in hiring an attorney to represent me in a product liability case?

A. Since these cases are time consuming and expensive, it is important that you select a firm with sufficient resources, both in terms of staff and finances, with which to aggressively pursue your case. Furthermore, it is important that the attorneys representing you are experienced in handling product liability cases.

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Q. Why should I hire The Brad Hendricks Law Firm?

A. Our attorneys have handled complex product liability cases for more than twenty years. We have the ability to finance these cases and the staff to aggressively pursue the manufacturers and distributors of defective and unsafe products.

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