Product liability lawyers often tout their skills and abilities at trial and when negotiating with the insurance company. These are certainly important parts of a comprehensive handling of a defective products case that results in catastrophic injury or wrongful death. However, these aspects alone, will not adequately protect the case of an injury victim. Furthermore, the failure to take essential steps earlier in the process runs the risk of failing to acquire essential evidence or risking the admissibility of said evidence at trial.
Thus, the role for an attorney pursuing damages for personal injuries suffered as a result of a defectively manufactured product. defectively designed product, or a product coming with inadequate warnings begins much earlier in the process. However, the difficulty that occurs all too frequently is that an attorney can only become involved after a client is able to discuss the matter and an attorney-client agreement is discussed and signed. Thus, while experienced personal injury and product liability attorneys understand the importance of getting involved early in the process, injury victims and potential clients often do not. Thus they may delay in contacting a lawyer, perhaps in some cases due to the severity of the injuries suffers, but in other instances the delay can only be attributed to the difficulties of revisiting the day and events when their life was forever altered. However, in serious personal injury matters involving complex questions of law and fact, the individual must resist the urge to delay and furthermore the urge to engage in self-help. While these impulses may be well-intentioned they can both cause serious, potentially irreparable damage to a legal claim. The following will discuss some of the reasons it can be essential to discuss and being an attorney-client relationship with an experienced lawyer sooner rather than later.
An Attorney Involved Early On Can Observe the Scene as it Existed at the Time of Injury
Often times, following an injury, an employer, landowner, or other party responsible for the premises will make modifications or changes to the premises to reduce the likelihood of a subsequent, similar injury or accident from reoccurring. It is true that the Federal Rules of Civil Procedure (Rule 407), prohibit the use of subsequent remedial measures as evidence to prove:
- Design defects
- Manufacturing defects
- Inadequate or improper warnings
This Rule serves the public policy goal of avoiding discouraging individuals from taking steps and measures that would make future accidents and injuries less likely. However, the existence of remedial measures can still be used for certain other purposes including the defendant’s ownership and control of the premises should this aspect of liability be contested. Furthermore, in in circumstances where the defendant may assert the remedial, corrective measures were infeasible, evidence of this type can be used for impeachment purposes.
However engaging with a product liability lawyer early in the process also carries the benefit of allowing the lawyer to see the scene of the injury as it existed when the injury occurred. In many cases, it may be difficult to reconstruct the scene. Consider a factory where following an accident large machines may be replaced or reconfigured in a manner that completely changes the character of the area. Furthermore, absent the testimony and reports or willing witnesses who are likely also employees, it may be difficult to ascertain the full extent of changes made to the area thus making it difficult to understand the area as it existed on the day of the accident.
Furthermore, in the ideal scenario, the attorney may even be able to reach the scene prior to accident clean-up. This can reveal valuable and essential insights useful to pursuing the claim. However, the lawyer and all experts must remain cognizant regarding the proper handling of evidence, maintaining the chain of custody, and the risks and opportunities potentially presented by spoliation of evidence.
Understanding the Extent of the Duty to Preserve Evidence in Pennsylvania & The Value of an Expert in Pre-Litigation and Litigation
In Pennsylvania, as originally stated in Hirsch v. General Motors and later cited in Baliotis, “The scope of the duty to preserve evidence is not boundless.” However, while the duty may not be boundless, there are certain evidence preservation, duties related to the non-spoliation of evidence, to which potential parties to litigation must adhere. Courts seem to permit interested parties with claims or potentially responsible parties a reasonable amount of time to inspect evidence but that right is not open-ended. In fact, courts have ruled that this opportunity to inspect may be “extinguished by provision to the opposing party of an adequate and meaningful opportunity to inspect the evidence.” Cedar Petrochemicals v. Dongbu Hannong Chem. Co. Should the party decline to exercise inspection at this opportunity, the remedies for spoliation may be extinguished even if the destruction of the evidence took place shortly following the event. Consider Fujitsu Ltd. v. Fed. Express Corp. where after notifying Fed Ex of the damage to a shipped item and providing an opportunity for inspection, Fujitsu destroyed the evidence roughly one month from the events. FedEx’s only request for the evidence came years after the claim and thus spoliation remedies were denied. Thus, one can probably already see the importance of retaining counsel early in the process – especially if the opportunity to inspect evidence is provided.
Aside from the potential damage that can occur through non-diligence regarding inspection of evidence, it is also essential that the proper parties are brought in to assess the scene. Typically a layperson may not understand the importance of brining in qualified and credible doctors, engineers, physicists, forensic specialists, and others who can provide valuable and non-obvious insights into the cause of accident, forces involved, and other relevant factors. Furthermore, through careful selection and preparation, should these individuals be called upon to testify in trial, a lawyer can often work to ensure that the likelihood of being impeached is minimized. Additionally, the lawyer can discuss proper handling of evidence with the expert to ensure that all parties are well-versed in ASTM E860 (Standard Practice for Examining and Preparing Items That Are or May Become Involved in Criminal or Civil Litigation) and ASTM E1188 (Standard Practice for Collection and Preservation of Information and Physical Items by a Technical Investigator).
A Lawyer Can Preserve the Admissibility of Evidence by Maintaining Chain of Custody or Otherwise Authenticating Evidence
At both the state and federal level, certain standards for the authentication of evidence are set forth in the respective rules of civil procedure. Essentially authenticated evidence is what the party claims that it is. The language of the Pennsylvania and federal rule are in accord and both read:
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
There a number of means an individual can authenticate evidence. These methods include:
- Testimony of a witness with knowledge
- Evidence about a process of system
- Distinctive characteristics
- Recorded public records
However, one method that can often prevent challenges regarding the authenticity of a record is meticulous handling & records keeping regarding the chain of custody. The need for a process that records the exact handling of a certain tangible item is not necessarily obvious to a layperson. Furthermore, they may not anticipate the other party asserting that the item was altered from its original state at the time of the injury. However, maintaining accurate records regarding the item, who handled and possessed it, and other factors can significantly bolster the credibility of the claim that the item exists as purported.
Consequences of Spoliation of Evidence for Plaintiffs & Defendants
For the plaintiff, the most prominent effect of the loss or spoliation of evidence is often the loss of that tangible, physical item as a means to prove their case. Depending on the item or evidence that is lost or destroyed, this could prove fatal to the case and claims. However, while the following consequences can apply to both the defendant and plaintiff, the spoliation of evidence can also result in adverse consequences. Most relevant to this line, the destruction of evidence without providing adequate opportunity to inspect can result in an adverse inference being enter against the spoliation party – the party that destroyed or otherwise failed to adequately preserve evidence. Most often, this occurs on the defendant’s side because they typically have custody of the property or control over the premises. Alternatively, generally in particularly egregious circumstances, summary judgment against the party may be entered. However, the victim of the injury can also be on the receiving end of these sanctions should he or she take improper action regarding evidence.
Start Working with an Experienced Products Liability Attorney Immediately After Injury
The above should explain some of the benefits of working with an experienced Philadelphia product liability lawyer early in the process and as soon as possible following an injury due to a suspected defective product or, quite frankly, any other personal injury or legal matter. To discuss how the attorneys of The Reiff Law Firm may be able to assist you, call (215) 709-6940 today or contact us online.