Product cases are won and lost on whether the product still exists. Manufacturers and their insurers know this, which is why the call offering to collect the item "for testing" or to send a replacement arrives quickly and sounds helpful.
Keep it. Keep the packaging, the manual, the receipt and the model and serial numbers. Photograph all of it. If a retailer or manufacturer asks for it back, tell them you will keep it available for inspection and speak to a lawyer first.
Three ways a product can be defective
Which of these applies decides what the case needs, so it is the first thing to work out:
- A design defect. The product was made exactly as intended, and the design itself is unreasonably dangerous. Every unit shares the flaw, and the case usually turns on whether a safer alternative design was feasible.
- A manufacturing defect. The design is sound, but this particular unit came out wrong — a bad weld, a missing part, contamination. The case compares the item that injured you against what it should have been.
- A failure to warn. The product is as designed and as made, but it carries a risk that was not adequately disclosed, or its instructions were inadequate for foreseeable use.
A single case often runs more than one of these in the alternative, because what the evidence eventually shows is not always clear at the start.
Who in the chain can be responsible
- The manufacturer of the finished product
- The maker of a component that failed, such as a battery, a valve or a tire
- A distributor or wholesaler in the chain
- The retailer that sold it
- An installer or servicer, where the work rather than the product caused the failure
Products bought through online marketplaces or imported from overseas manufacturers raise real practical questions about who can actually be pursued and where. That is a question to ask early, because it shapes the whole case.
The products these claims involve
- Vehicle components: tires, airbags, seat belts, fuel systems and, increasingly, battery fires after a collision
- Lithium batteries in e-bikes, scooters, tools and phones, which cause severe burns
- Power tools and machinery with missing or defeated guards, a frequent factor in hand injuries and amputations
- Heaters, appliances and electrical products, including fire and electrocution risks
- Children’s products: cribs, car seats, toys and furniture that tips
- Medical devices and implants
- Ladders, scaffolding and work equipment, which often also involve a workers' compensation claim
- Household and recreational products, including exercise and sporting equipment
How these cases are built
- Preserve the product, along with packaging, manual, receipt and any parts that came off it.
- Engineering examination, usually with both sides present, so nothing is altered without agreement.
- The manufacturer's own material: design documents, testing records, quality control and change history.
- Complaint and incident history, including other reports of the same failure, and any recall or safety notice.
- Foreseeable use, because a manufacturer must account for how people actually use a product, not only how the manual says to.
- Alternative design evidence, in a design case, showing a safer option was available and practical.
A recall helps but is not required, and its absence proves nothing. Many defects have never been recalled.
What the manufacturer will argue
- Misuse: that you used it in a way that was not foreseeable
- Alteration: that the product was modified after it left them, including by removing a guard
- That the risk was obvious, or adequately warned about in the manual
- That something else caused the injury, not the product
- Contributory negligence. Under Maryland's rule, carelessness on your part can defeat a negligence claim entirely, which is one reason these cases are often framed on more than one legal theory.
Deadlines
Maryland generally allows three years from the injury to file, with different rules for children and for a death. Where a defect was not apparent immediately, when the claim is treated as having arisen can itself be in issue.
As with every product case, the practical deadline is earlier and simpler: the day the product gets thrown out.
