Lawyer Monthly Magazine - March 2020 Edition

Bart Jay Robey Legal Game Changers Bart Jay Robey, Chubbuck Duncan & Robey, P.C. What are the defenses to product liability? In Oklahoma, there are numerous defenses to a product liability claim, including but not limited to, alteration of a product, voluntary assumption of a known risk, unforeseeable/abnormal misuse, state of the art design, or the product complied with or exceeded mandatory safety standards or regulations. Is the statute of limitations a defense in a product liability case in Oklahoma? It is. In Oklahoma the statute of limitations for a product liability claim is two years from the date of the injury or incident. The discovery rule can toll this period in certain circumstances. What if something else caused the plaintiff’s injury? In order to maintain a product liability action, a party must establish a defect existed in a product which made the product unreasonably dangerous. The defect is required to have existed at the time the product left the manufacturer’s control. Further, the claimant must establish that the identified defect caused the injury. In addition to the defenses discussed above, lack of causation is fatal to a claim of product liability. Thus, it is imperative to not only evaluate any and all defenses, including affirmative defense, to a product liability claim – but it is equally critical to evaluate all other potential causes to the incident, independent of the claimed defect. Product injuries are pretty common. Companies have a responsibility to ensure that the product they sell is safe for public use – this means no exploding laptop batteries or unexpected choking hazards on kids’ toys. Speaking to Bart Jay Robey who specializes in product liability defense, we learn more about product liability and how such cases work. In order to maintain a products liability action, a party must establish a defect existed in a product which made the product unreasonably dangerous. • Out of all the awards received for personal injury jury cases, product liability, on average, sees more costs associated with it 1 . • Annually, an average of 5 – 10% of personal injury liability lawsuits are based on defective products and the hazards that come with them 2 . • Anywhere from 100,000 to almost 300,000 injuries are caused by toys each year – meaning that many injuries are inflicted on to children. Types of Product Liability Claims - Defective manufacturing - Defective designs - Failure to provide adequate warnings What challenges arise in product liability cases? Time is one of the biggest issues of concern. The length of time between an incident and notice of a claim or lawsuit can limit the ability of a manufacturer to fully investigate the incident. Evidence, witnesses, an accident scene, and the product itself could be lost during the intervening time period. Additionally, the age of the product can create difficulties, even though the alteration of a product is a viable defense. As a legal gamechanger, how do you overcome these challenges for your clients? Consistent with the points above, maintaining the product, evidence, and securing the incident/accident scene is critical to forming the best defense. Proactively interviewing witnesses and gathering information prior to a lawsuit or a formal request allows counsel to develop a defense and evaluation before an adversary can define the field. Regular contact and updates to clients allow the client to engage in informed and efficient decision making on how to manage the claim or litigation at the beginning and throughout the life of a case. LM 80 WWW.LAWYER-MONTHLY.COM | MAR 2020