Author: Anthony Baratta
Whenever catastrophic injury occurs (for example death, paralysis, burn injuries, brain injuries) a product liability case should be considered. The question is, did the product itself cause or contribute to the injury? Without the product, there is no case. So, don’t destroy or get rid of the product.
Take the above image as an example. The blender catches on fire and you suffer serious burn injuries. All circumstances of that injury must be investigated including whether the blender was defectively designed or manufactured? That question cannot be answered without the blender. A lawyer experienced in handling products liability cases will preserve the blender in a safe location, arrange for a non-destructive inspection of the blender by engineers hired by the lawyer along with engineers for the blender company, buy an exact replica of the blender for testing by hired experts, and have the blender available as evidence at trial. The failure to preserve the blender is called spoilation of evidence and a Plaintiff will not be able to prove the case without it, and the defense is unable to defend itself without it.
This seems like simple advice but it is not so easy to implement in practice. Usually, and correctly so, the immediate response to a catastrophic injury is to obtain medical treatment. Preservation of life is much more immediately important than preservation of evidence. So what should be done?
There is unavoidable and terrible physical, emotional and economic consequences to death and catastrophic injury. Health insurance, disability insurance, car insurance, and life insurance are tools we use to protect ourselves and our families from such devastation. The personal injury lawyer is a similar tool to be used. An experienced personal injury lawyer will know how to preserve what is important to investigate a potential case. So, my simple advice is to immediately contact an experienced personal injury lawyer after an event that causes injury. There is no obligation, once evidence is properly preserved, to pursue a claim. Take time to make that choice. But, if you wait to make that choice before you preserve the evidence, you may lose the chance to make that choice.
Here are the steps we at Baratta Law follow when we are contacted by a client whose family member or loved one has suffered a catastrophic injury:
1. We go to the scene
2. We interview witnesses
3. We document with photographs and video
4. We retrieve the product (cars, boats, trucks, ATVs, UTVs, propane tanks, blenders, etc.) or put the person holding the products on notice to preserve and not destroy it
5. Hire engineers to inspect the product
6. Search for similar incidents with the same or similar product
7. Communicate with product liability lawyers around the country to learn about other similar incidents
Let me tell you the story of a single vehicle crash involving a rented truck that resulted in a fire and burns to the driver over 50% of his body. The lawyer initially hired by the burned driver did not consider a products case. Instead, that lawyer focused on the events of the crash which were reported by the driver as he was cut off by another driver causing him to lose control and crash into a guardrail, causing the truck to turn on its side and catch on fire. The initial lawyer sought to bring an uninsured motorist claim against the trucker’s own insurance company for the conduct of the phantom, or uninsured, vehicle that caused the crash. But that insurance was minimal. Also, the lawyer brought a workers compensation case against the driver’s employer, but that claim would not pay for anything other than medical bills and lost wages.
The injuries were catastrophic and what had been recovered by the initial lawyer did not compensate the burned driver for his pain and suffering, lost future earning capacity and future medical expenses. The initial lawyer asked for our help. We immediately demanded that the trucking company, which had taken possession of the truck, preserve it and allow us to inspect it with our engineering and fuel safety experts. Fortunately, the truck was still available for inspection. Ultimately, we were able to prove a defective design of the truck-the fuel tank had been placed in a position such that it could be easily penetrated in a crash allowing for a fuel leak and fire to erupt. After hard fought litigation, spending hundreds of thousands of dollars to prosecute the case, and on the eve of trial, we were able to recover over $8,000,000.00 in a settlement for our client.
If a product liability case had not been considered and investigated, the burned driver would have not received fair or just compensation for the devastating injuries he was caused. But our client, and the initial lawyer, were both lucky that by the time we were hired, 6 months after the crash, the truck was miraculously still available to be inspected. Not everyone who does not take immediate action to preserve evidence is so lucky.
So, rule number 1 in any catastrophic injury or death case: make sure to preserve ALL the evidence as soon as possible. And hire the right lawyer.
