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Keep the product. A product case is proven with engineering, not with a description of what happened. Everything else in your claim follows from having the item in the condition it was in when it failed.
The step that cannot wait is protecting the product itself. Do not return it to the retailer, send it to the manufacturer for inspection, or discard the packaging and instructions. Once the product leaves your hands, you may lose any say in how it is handled and tested, so talk to a lawyer before it goes anywhere. Call 713-521-0059.
Design defects, manufacturing defects and inadequate warnings are distinct theories with distinct proof. All of them start with the physical item in the condition it was in when it failed. Product claims usually take one of those three forms, and which one fits your case depends on how and why the product failed. Sometimes more than one theory is raised in the same case.
Product cases usually require an engineering expert before anyone can say whether a case exists, and that expense comes before any recovery. The expert examines the item, often at an inspection that both sides attend, so that no one can say the evidence was changed. Prior complaints about other products from the same manufacturer also matter, because they can show the maker knew about the problem. Recalls, warranty claims and service bulletins can fill in more of that picture.
The manufacturer is the usual defendant. The maker of a component that failed inside the product can be responsible too, such as a battery, a valve or a latch. A seller or distributor may be responsible in some situations. Where someone modified or repaired the product, that work becomes part of the question of what caused the failure. It helps to identify the exact maker and model early, because a product sold under a store brand may have been built by another company.
Keep the product, its packaging, the manual, the receipt and any recall notice. Photograph the failure and the injury. Record the model and serial number and the date and place of purchase. Note whether the product had been modified or repaired.
Store the product somewhere dry and safe, and do not try to fix it or take it apart. If a vehicle or a large appliance is involved, ask the insurer, the landlord or the tow yard in writing to hold it. Keep your medical records and bills together from the first visit, along with the names of anyone who saw the product fail. If you bought the product online, save the listing, the order confirmation and any reviews or questions posted on the page.
Medical treatment comes first, and your medical records become part of the evidence of what the product did. In the same period, the manufacturer or its insurer may contact you, ask for a statement or offer to examine the product. You generally do not have to give a recorded statement to another party’s insurer. Your own policy may require you to cooperate with your own insurer.
Before you agree to any of that, get advice, because a written reply through a lawyer is usually the safer course and keeps the product in your control. Identifying the correct manufacturer, the distribution chain and any earlier recall notices typically takes investigation, particularly for imported or unbranded products. Keeping a simple folder of receipts, photographs and correspondence during these weeks saves considerable time later.
It can reduce a claim, but it usually does not end it. Under Chapter 33 of the Civil Practice and Remedies Code, a claimant may not recover if found more than 50 percent responsible. Otherwise, recovery is reduced by the claimant’s percentage. Manufacturers often argue that a product was misused, so a clear record of how you used it, and how the instructions said to use it, can help.
Under Section 16.003 of the Civil Practice and Remedies Code, most injury claims must be filed within two years after the day the claim accrues, which is usually the date of the injury. Other deadlines can apply to product claims, so do not wait to ask about your dates.
Where a defective product caused a death, Section 71.004 allows the surviving spouse, children and parents to bring a wrongful death action. For a death claim, Section 16.003(b) runs the two years from the date of death. Call 713-521-0059.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
The manufacturer holds its design files, its testing and its complaint history. You hold the product, and that is why keeping it matters so much. A written request to the retailer and the manufacturer to keep their records is often the next step. Where others were hurt by the same model, their complaints and reports can show a pattern the manufacturer already knew about.
We start with the product and how it failed, because that is what an engineer has to see first. Then we identify every responsible party: the manufacturer, the maker of any failed component, anyone who modified or repaired the product, and, in some situations, a seller.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
Not before you get advice. Do not return it to the retailer, send it to the manufacturer for inspection, or discard the packaging and instructions. Call first.
Because a product case is proven with engineering, not with a description of what happened. An engineering expert usually has to examine the item before anyone can say whether a case exists.
Note it and tell us. A modification or repair does not necessarily end a claim, but it becomes part of the question of what caused the failure.
Under Chapter 33, a claimant may not recover if found more than 50 percent responsible. Otherwise, recovery is reduced by the claimant's percentage.
The product, its packaging, the manual, the receipt and any recall notice, along with photographs of the failure and the injury and the model and serial number.
Generally two years after the day the claim accrues, which is usually the date of the injury, under Section 16.003. In a death case, the period runs from the date of death. Other deadlines can apply to product claims, so ask about your dates early.