Do I need to retain an attorney, and how soon should I?
That’s a great question. It’s my belief that an injured party by defective product should hire an attorney or should seek the advice of attorney as soon as possible. One, because often times, these companies or the insurance companies for these companies try to reach out to the injured party and quickly try to resolve those cases for pennies on the dollar. And these injured parties are often either injured in a state where they’re not thinking clearly, or they don’t know their rights, they don’t know what they’re entitled to recover for. So they’re settling their cases or resolving their cases without properly knowing what their rights are. And these companies try to take advantage of that situation. So, that’s step one, is to get a good attorney between you and the insurance company and the defendant so that you don’t give away something or give up your rights.
Second, it’s important to hire an attorney early or consult with an attorney early, because evidence needs to be reserved. In product defect cases, the product itself and other evidence often gets thrown away, or destroyed, or changed, or modified someway after the accident. So it’s critical for the injured party to hire an attorney or consult with an attorney, so that evidence can be preserved. Because sometimes in cases that evidence is critical to the success of the case. And in addition to that, the law is complex in these types of cases, and these companies hire big law firms with lots of money and lots of attorneys to litigate these cases. And I don’t believe a reasonable person could adequately represent themselves without proper counsel. So it’s, in my opinion, very important to have a top-notch plaintiffs law firm fighting for you in a product defect case.
And what about time limits? Do I need to sue within a certain period of time?
Alright, that’s another great question. So, in California, an injured party or the relatives of someone that was killed by a dangerous product have two years from the date of the injury or the death to file a lawsuit to recover. So again, a plaintiff’s attorney needs to be consulted quickly and early in that process, so that the evidence can be preserved, but also so that the case can be investigated, and other evidence in research can be done prior to that two-year deadline.
And you mentioned earlier a product liability case involving an aerosol spray. Let’s say the damage is accumulative. Is there a time that I need to file after I find out I’ve been injured from that?
That’s correct. You have to file when you’re either injured or you discover, using reasonable and due diligence, that a certain product caused my injury. So while you might not know for sure whether or not the product was responsible for your injury, you have a duty to go out and find the evidence, find the facts to determine whether or not that happened. So in some circumstances, a plaintiff can recover beyond, or file a lawsuit for wrongful death or personal injuries based upon a dangerous product, if they couldn’t, using due diligence, have discovered that the product was the cause of their injury.
You mentioned also that the seller of the product, not just the manufacturer, might be liable. Does the seller have to be aware that the product is defective in order to be also responsible?
No, the seller is not. The law around product liability is a function of society, and it’s a policy determination that the State of California has made that the companies that are in the chain of custody, from the designer to the manufacturer to the distributor to the seller, are in a better position to bear the risk of those dangerous products, as opposed to hanging the plaintiff that is injured out to dry. So while the seller might, in some people’s mind, be innocent in a case, that doesn’t absolve them of liability, because oftentimes these sellers buy products from overseas, manufacturers and companies where US law cannot reach. And in that case, if the seller wasn’t responsible, then the only viable other party would be the manufacturer. In a country like China, the plaintiff would not be able to recover a dime. So, as a society and as a state, we have made a public policy determination that we would rather the seller bear the responsibility for that dangerous product, as opposed to the plaintiff being unable to recover at all.