If you are injured as a result of a dangerous or defective product, you can reasonably expect that each defendant will assert several defenses either to limit their liability or to reduce the amount of your monetary recovery. If you are a plaintiff asserting a Decatur personal injury claim based on product liability, it is important that you understand the potential defenses available to each defendant that could weaken your case. By anticipating the defendant’s arguments, you can be proactive by addressing your case weaknesses in a favorable light.

Defenses To A Product Liability Claim

These are just some of the defenses that can you can reasonably expect from an insurance company or a defendant in a personal injury case based on product liability. These can be either a complete defense or a mitigating factor in any assessment of liability or monetary recovery.

• Improper use. This refers to a situation where you purchase a product and either misuse the product or does not use the product for its intended purpose and is injured. As an example, a plaintiff purchases an over-the-counter medication, takes five times over the proper dosage and becomes ill. Plaintiff’s misuse of the product may negate any claim that the plaintiff has against the defendants.

• Sophisticated user. This refers to a situation where you are much more sophisticated than the average consumer. An example would be a physician who administers a procedure with a surgical tool that injures the plaintiff. The doctor, as part of his defense, sues the manufacturer of the surgical tool. Since the risks of the surgical procedure were either known or should have been known to the physician because the risks were known within the medically accepted practices, the physician would probably not be successful in their claim against the manufacturer.

• Lack of proximate cause. This refers to a situation when the defendant’s product did not actually cause your injury. As an example, a plaintiff is injured while on a ladder that has a proper warning. The plaintiff admits during testimony that he did not read the warning. In this case, the plaintiff would probably not have a claim since there was a clear warning on the ladder that the plaintiff did not heed.

• Assumption of the risk. This refers to a situation in which you purchase and use a product knowing how dangerous it is. For example, a plaintiff learns of a steering wheel defect in their vehicle and continues to drive the vehicle anyway and is injured. The fact the plaintiff continued to drive the vehicle knowing it was unsafe could be a defense or a mitigating factor to plaintiff’s personal injury claim if the defective steering wheel caused or contributed to the accident.

• Product was not in the chain of distribution. This refers to a situation where a product was never placed in the market place and was not intended to reach the consumer. As an example, a manufacturing company produces a forklift for its own use at their plant and not for commercial use. This would be a valid defense since the product was not in the stream of commerce.

• Statute of limitations. There are rules as to how long you have to file a lawsuit. If you wait too long to file a claim or a lawsuit, you claim will be extinguished, or non-existent. Pursuant to Illinois statute 735 ILCS 5/13-202, you have two years from the date of the accident or injury to file your personal injury suit.

• Statute of Repose. Similar to a statute of limitations, there are laws where you are barred from filing a lawsuit after a specified period of time has run from the occurrence of some event other than the injury that gave rise to your personal injury claim. Thus, even if you file suit within the two-year statutory limitations for your personal injury case, you could be barred from filing a product liability claim if the product has existed for a certain amount of years. In Illinois, 735 ILCS 5/13-213 permits you to assert a product liability claim in your personal injury case within:

• 12 years from the date of first sale, lease or delivery of possession of the product by the seller or
• 10 years form the date of first sale, lease or delivery of possession of the product to its initial user, consumer, or other non-seller, whichever period expires first.

You are barred from asserting a product liability claim in your personal injury lawsuit if the period expires. The exception is if the manufacturer expressly warranted or promised the product for a longer period and your action was brought within that period.

• Spoliation of evidence. This refers to a situation where you fail to preserve the evidence necessary to prove your case. For example, a plaintiff buys an over the counter medication and claims that it did not have a proper warning. Plaintiff throws out the bottle of medication before it can be tested or otherwise used as evidence in a legal proceeding.

• Unavoidably unsafe products. This refers to a situation where a product is unsafe from inception. Examples would be a firearm or a fire producing product. The mere fact the product is so inherently dangerous could be a defense or mitigating factor to liability.

• Failure to mitigate damages. When you are injured, you have a duty to lessen the severity of your damages. For example, a plaintiff’s leg was injured as a result of a defective product. Plaintiff does not seek proper medical attention or take his or her physician’s advice about the healing process. As a result, the plaintiff’s condition worsens. Plaintiff’s failure to seek proper medical attention or abide by the physician’s orders could be a defense or a mitigating factor in any products liability claim.

What You Can Do To Be Proactive

There are several things you can do to avoid some of the defendant’s potential defenses or have a strong argument against the insurance company or defendant’s defense tactics to your product liability claim.

• Heed your physician’s advice. If you are injured, be sure to seek medical attention and to heed your physician’s advice as to the healing process.

• Be sure to preserve all evidence. That includes any physical evidence, such as vehicle parts or bottles, and any other evidence that could support your claim. Speak with your attorney about what steps to take to ensure that the evidence is properly preserved.

• Do not wait too long to file your claim. Make sure that you understand the deadline to file your claim or lawsuit and file ahead of time, if you can. By speaking to an attorney soon after your accident, your attorney will be able to determine the potential defendants and strategize regarding your potential claims. This includes determining whether the statute of repose could bar your product liability claim.

• Be candid with your personal injury lawyer. Be clear with your attorney as to any actions you may have taken which may have contributed to your injuries. The fact that you are candid with your lawyer will help your lawyer better prepare your claim and could improve the chances of your success in your case.

• Be sure to gather evidence in your case at the direction of your attorney. Do not conduct an independent case investigation or evidence gathering without your attorney’s advice. Your attorney may already have a game plan and you want to make sure that the evidence and witnesses in your case are handled properly.