Alicia F. Curtis, lawyer at Berman & Simmons

Retaining Evidence in a Products Liability Case

In a products liability case, the defective product itself is typically key to proving the plaintiff’s case. For example, in a case that our office recently worked on involving a malfunctioning bucket lift that collapsed, testing of the retained piston revealed that the grade of metal used was insufficient to withstand the forces within the hydraulic lift. If steps had not been taken to retain that piston, we likely would not have been able to prove the responsible defect.

Similarly, in a catastrophic motor vehicle injury case, in order to preserve the opportunity to pursue a possible “crashworthiness” case, immediate and deliberate steps need to be taken to retain and preserve the vehicle for expert inspection. In medical device cases, like those involving artificial joint implants, arrangements should be made to have the applicable device in question saved, decontaminated, and stored after removal from the body. Such protocols need to be initiated and coordinated with the appropriate medical and hospital personnel prior to the removal surgery. Evidence of fretting and corrosion of the implant’s metal surfaces, for example, may be critical to successfully prosecuting a defective medical device case.

Sometimes a defective product is destroyed through its malfunction—for instance, an overheated component may catch fire and destroy the product. At other times, the product may be lost or destroyed in the ordinary course of business, before a party is or should be aware of impending litigation. Assuming that spoliation is not an issue, one may still be able to prove a product defect without the product itself. In Walker v. General Electric Co., the First Circuit Court of Appeals held that plaintiffs in Maine courts may be able to overcome this barrier by application of a “malfunction theory,” whereby the product defect is proven by showing an unexplained malfunction after eliminating all reasonable explanations other than the claimed product defect. 968 F.2d 116, 120 (1st Cir. 1992). In essence, the “malfunction theory” relies on the use of circumstantial, rather than direct, evidence to prove the defect. The Restatement (Third) of Products Liability §3 adopts and further clarifies this theory, stating that a product defect can be inferred from the harm to a plaintiff when the incident that harmed the plaintiff (a) was of a kind that ordinarily occurs as a result of product defect; and (b) was not solely the result of causes other than product defect. Three different federal court decisions in Maine apply this section of the Restatement (Third). Canning v. Broan-Nutone, LLC, 480 F. Supp. 2d 392 (D.Me. 2007); TNT Road Co. v. Sterling Truck Corp., 2004 U.S. Dist. LEXIS 13461 (D. Me. July 19, 2004); Moores v. Sunbeam Prods., Inc., 425 F.Supp. 2d 151 (D. Me. 2006).

The “malfunction theory” is often analogized to the doctrine of res ipsa loquitor in the products liability context. Under res ipsa loquitor doctrine, after a prima facie showing, the burden shifts to the defendant to demonstrate the absence of negligence.1 Wellington Assoc., Inc. v. Capital Fire Protection Co., 594 A.2d 1089, 1092 (Me. 1991). By contrast, courts that apply the “malfunction theory” have held that the burden remains on the plaintiff to prove that a defect is the most likely cause of the malfunction. Walker, 968 F.2d at 120. For that reason, expert testimony plays a critical role in proving a product liability case in the absence of the malfunctioning product itself. The plaintiff’s expert must consider and rule out all other likely causes of malfunction, in order to support a winning case.

Although established law may allow a victim of a defective product to prevail, even without the defective part being available, meeting one’s burden of proof is far easier with the part in evidence. For this reason, it is imperative that those involved, including counsel, think ahead and be proactive, taking all steps necessary to preserve the defective part or product at issue. ahead and be proactive, taking all steps necessary to preserve the defective part or product at issue.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.