Most products contain labels indicating the product's model number, serial number, and the date of manufacture. This will enable claim professionals to identify relevant product recalls and the model product's history of use in the field from prior clam and lawsuit data. Likewise, many products contain labels indicating that they meet or exceed certain standards, which allows one to identify what regulatory and industry requirements are applicable to the product. For every product, there should be instructions about assembly, maintenance, and use, all of which will allow one to better investigate both how and why an accident occurred.

Every product has a history. The date when a product was purchased or installed allows the claim handler to determine whether the accident arose from the malfunctioning of a relatively new product or the wearing of an aged item. How the product was installed and maintained and whether it was altered allows the claim handler to deduce whether the accident arose from misuse or abuse of the product. Sources of such information exist in the product's installation and maintenance files, which will be on-site with a product or in the hands of third-party installers and service technicians. On-board computers also may contain information as to how the product was being operated at the time of the accident.

Every accident scene provides a wealth of information about how and why an accident occurred. Therefore, every product and scene should be preserved to the fullest extent, and any alteration of the product or scene must be thoroughly investigated and documented. Photographs of the product and accident scene should always be taken, and from a variety of angles and distances. Remember that failing to do so could result in the loss of evidence that could be indispensable to the insured's defense. As many accidents are investigated by some federal or state agency, the claim handler should secure such agencies' accident reports and photographs. Some agencies are even making their photographs available online. Also, many accidents are covered by reporters, so obtain all relevant news reports. Often, this information allows the claim handler to determine whether (and how) a product or a scene was altered post-accident. Additionally, this information identifies those involved in, and witnessing, the accident.

As is the case in all personal injury claims, collection of information about the claimant is essential. In the product liability realm, however, collection of medical data from the day of and initial days following an accident is particularly helpful. This data not only reflects the claimant's condition at the time of and immediately following the accident but also contains the claimant's description of how the accident occurred.

Finally, identify potential experts necessary to the insured's defense. In today's computer age, qualifications and background can be easily secured. Recommendations from other claim handlers and defense counsel are perhaps the quickest resources for qualified referrals.

Getting the Claimant's Statement

A claimant's statement is integral to any claim investigation. Thus, it should be done as early and as carefully as possible. An early statement ensures the claimant's sharp recollection of the incident. Also keep in mind that a claimant may develop an adversarial relationship with the insurer and become less forthcoming over time.

Take full advantage of a statement by preserving it via writing or recording. However, remember that factual materials are discoverable, even if prepared in anticipation of litigation. Therefore, do not interject any personal biases or statements in the recording. Keep the claimant's responses narrowly tailored to the information you are attempting to gather by carefully planning the questions ahead of time; then stick to your script. Short, simple questions requiring short, simple answers work best. However, inviting a claimant's narrative sometimes reveals integral information that might not have otherwise been uncovered.

Investigation and Surveillance

If a lawsuit ensues, then your investigation notes are discoverable. However, your opinions are protected. An attorney's notes related to the investigation are generally not discoverable. Depending on the seriousness of the claim and the exposure for your insured, it may be advantageous to retain pre-litigation counsel to protect privilege and maintain confidential communications. If you are unsure as to what information to obtain from a witness, then you would be wise have counsel conduct the interview at a later date.

Any report by an expert is discoverable. It is wise not have your expert write any formal report until the case reaches that point in discovery where experts are identified and reports produced.

If used properly, surveillance of an injured claimant can be a vital tool for combating fraudulent claims. Surveillance videos and photographs are discoverable by the opposing party. The defendant has the right to take a plaintiff's deposition before the surveillance must be revealed. This rule encourages honesty and preserves the impeachment value of the evidence in cases where a person's testimony is inconsistent with surveillance results.

Surveillance cannot be withheld indefinitely. Courts frequently impose sanctions for failure to present any existing photographs, videos or investigator testimony, and some courts have barred the use of surveillance tapes at trial where the defendant failed to make those tapes available to the plaintiff prior to trial.

Surveillance is discoverable, so it is a double-edged sword. It can either prompt a favorable settlement or a dismissal after an allegedly injured claimant is shown doing vigorous yard work. It can also reinforce a claimant's allegations by showing his frequent struggles with routine tasks and regular trips to his physical therapy clinic. Thus, remember that surveillance, although powerful, is not necessarily appropriate in every claim. Having no investigation and surveillance early in a claim may be better than later producing damaging evidence that could impact any settlement.

Demanding Preservation

Spoliation refers to the destruction, alteration, or concealment of evidence. A claimant who intends to file a lawsuit has a duty to preserve the evidence. A claimant's fault in disposing or otherwise altering the product at issue can be a strong negotiating point or may result in court imposed sanctions, including dismissal of the case.

The spoliation doctrine is most applicable in cases involving a fire scene or an alleged manufacturing defect. When a claimant asserts that a defective product started a fire, only by inspecting the fire scene can cause-and-origin fire experts determine whether the product was the source of a fire, or whether the fire had other alternative sources. The spoliation doctrine also applies in manufacturing defect cases where the claimant alleges that one product manufactured or sold by the defendant was somehow dangerously different from the rest of its product line. Without the specific product at issue as evidence, the manufacturer cannot defend any alleged defect theory.

As a claim handler, you should immediately demand the claimant preserve a product or fire scene until a proper inspection can be conducted by your experts. If the claimant intends to inspect or test the product with his own experts, then request they present a proposed written protocol that details what they intend to do, step-by-step. It is the claimant's responsibility to develop the protocol — the claimant is asserting a defect/malfunction in your client's manufactured product. It is the claimant's expert who is responsible in developing the proposed protocol. Your expert should review that protocol and either agree or object to it. During inspection, your representative and/or expert should not demonstrate how the product should be used.

Obtain the claimant's written proposed protocol for your client and defense expert to review in advance of any inspection/testing. Be certain that component manufacturers are on notice and invited to the inspection/testing in addition to any installation/service contractor and their respective experts. It is a claimant's responsibility to notice those parties; however, as long as the claimant is looking at the 'deep pocket' product manufacturer, he may not notify other parties. In defending your client's product, get those other parties into the claim for their potential exposure.

In product liability cases, the product itself is the most crucial piece of evidence. If the product is destroyed and the claimant is at fault, then the claimant's case may also be destroyed.

Limitation Periods

The statute of limitations refers to the time limit an injured person has for commencing a lawsuit. In Pennsylvania product liability cases, there are two limitations periods. Tort actions (strict liability and negligence) are subject to a limitation of two years. Breach-of-warranty claims generally invoke a four-year period.

In a product liability action sounding in negligence or strict liability, the limitation period begins to run as soon as the right to bring suit arises (when the claimant knows or reasonably should know that damages occurred). No consideration is given to when the product was sold or manufactured.

The limitation period for breach-of-warranty claims begins to run when the product is purchased by the claimant. It makes no difference when a person discovers the breach of warranty; all that matters is that the lawsuit is filed within four years of the purchase.