Start Here—Preservation and Investigation.
The issue of product inspection often first arises when a manufacturer receives a notice of an accident or failure involving its product. This can occur pre-litigation or a manufacturer can first be put on notice upon receipt of a summons and complaint. In either case, it is crucial at the outset to obtain as much information about the scene, incident and product as possible. There are at least three key things you should consider doing once put on notice of a claim.
First, immediately reach out to claimant or claimant’s counsel. Request as much information about the alleged incident as possible and copies of all relevant photographs, videos, and reports in their possession. Repeat this step with any other potential defendants. It is critical as early as possible to put the claimant on notice that the product or scene must be preserved. If the product is not in claimant’s possession, they should take all steps or provide you with the necessary information so that the product can be retained. For example, if the product is a medical device and it is in the possession of a hospital or physician, they should be put on notice that the product is subject to a legal claim and must be preserved. This preliminary step is crucial to ensuring that evidence is properly preserved and also will lay the foundation for a future motion for sanctions should the scene or product not be properly preserved.
Second, gather as much information as you can internally about the product at issue and preserving all relevant information. This includes all relevant product specifications, instruction manuals, and manufacturing records for the product. Also begin identifying internal employees with knowledge of the product including its development and manufacture.
Third, depending on the individual circumstances, consider requesting an inspection of the scene and visual inspection of the product as soon as possible, without prejudice to future inspections and/or testing of the product itself. This is particularly important if the product is still located at the scene of the incident and must be removed for proper evidence storage. The purpose of the scene inspection is to establish product identification and preserve the scene and product by documenting it. In that regard, you should strongly consider taking high-quality color photographs of the scene and product so that you can document how the product appeared at the scene. You also will want to consider having an expert or company representative with knowledge of the product present at this scene inspection. This expert can assist with product identification and can help prevent potential spoliation in removal of the product. This person can also provide important insight into the product and scene.
Now What? Preparing for Product Testing and the Creation of Protocols.
With some preliminary information in hand, the next step is to prepare for product inspection and testing.
First, the manufacturer should begin to evaluate whether to hire a consultant or expert (to the extent this was not done for the preliminary scene inspection) and to advise and assist with the creation of protocols and examination and/or testing of the product. You should provide all of the evidence, including photographs and product information that you have gathered, to your experts. Carefully consider the type of expert to engage. For example, if the product or cause of the incident could be electrical in nature, it would be wise to bring an electrical engineer to the scene inspection to investigate wiring or electrical items at the scene that may provide a potential defense to the product manufacturer.
Second, the manufacturer should prepare a notice of inspection and the protocol for inspection. It is best to conduct one product inspection to save costs; therefore, careful consideration of the scope of the inspection is warranted. The notice of inspection is sent to the other interested parties to inform them of the time and location of the inspection and also includes the protocol. In terms of conducting a product testing, it is necessary to create a detailed protocol. The protocols should be carefully developed by your expert always keeping in mind that good protocols evaluate, in advance, everything you want to learn about the product during the testing and the cause of the incident. The protocols should contemplate everything that will be done at the testing, including whether destructive testing will take place. A detailed protocol also ensures that everyone knows their role and what they are supposed to do during the inspection and provides a clear guide to follow. Use your resources in creating protocols. For instance, include a corporate product expert in the process, who adds expertise beyond what any outside consultant or expert can provide. Some things that you may want to consider in drafting your protocol include:
- Who will run and conduct the testing?
- What type of testing will take place?
- What equipment or tools will be necessary for product inspection and does the location of the inspection have such equipment? If not, who will provide it?
- Who will bring the product to the testing and who will take custody of it when the inspection is over?
- If the product must be left somewhere overnight or longer during the product inspection, what safeguards will be in place to ensure there is no accusation of tampering later on?
- Who will pay for the costs of transportation of the product, storage of the product, and testing of the product?
- What exactly will be done to test the product and will the product be altered, disassembled or destroyed? If so, have all potentially liable parties agree in writing?
- Will the inspection be photographed and/or videotaped? If so, by whom?
- Is there a provision for the exchange of photographs and videotape after the inspection is complete? If so, in what format will materials be provided?
- Are your protocols sufficiently specific such that there will be no deviation from them?
- Do your protocols build in the option of deviation if all parties agree?
The parties need to discuss and agreed on the scope and details of the protocol well in advance of the inspection. Coming to agreement on the protocol prior to inspection day is crucial to avoid unnecessary expense and waste of time; however, the protocol should leave open the possibility for additional tests based on what is learned at the inspection. You may want to consider having parties and experts physically sign the protocols so that there can be no doubt later that they were agreed upon by all.
Finally, The Product Testing and Inspection.
First, prior to the commencement of the testing, your expert (be it retained experts or your employees) should be briefed on what they can say in the presence of others and how to respond if questioned by other parties. Other counsel and other experts may attempt to question your experts during testing. You should be prepared to address this. Also, it is important to stay close to your expert and pay attention during inspection to ensure that information is not unnecessarily revealed. Your counsel should preserve a copy of the attendance sheet to document the names and party affiliation of anyone present.
Second, it is helpful for your counsel attending inspection to closely observe what other parties and their experts are saying and doing at the inspection, as this information may be useful. Your counsel may be able to determine the interests of the other parties in the action and/or which party the plaintiff is targeting most strongly. Your representatives, whether counsel, expert, or employee, should take detailed notes and photographs to document the testing process.
Third, if a problem arises during the inspection or testing such that there is some disagreement, refer to the protocol. If you have clearly delineated what needs to be done and there is deviation, you can consider adjourning the inspection and ultimately seek the court’s intervention. It often is helpful to have counsel present at the inspection should such a dispute arise. This allows the issues to be addressed on the spot and can save time and money and the need for all parties to return on another day.
While it may seem difficult to justify expending such resources on legal and expert expenses on scene and product inspections, especially if a lawsuit has not yet been filed, doing so is often money well spent. A well-conducted inspection prior to a lawsuit may avoid litigation altogether based on its results. However, even if litigation is unavoidable, the knowledge gained from a proper scene or product inspection may still be used to leverage a quick resolution or provide a more vigorous defense for the product manufacturer.