Product liability is essentially a tort action that makes a manufacturer civilly liable for damages if the product has a defective condition making it unreasonably dangerous to the user or consumer. The injured victim will generally make a claim to the manufacturer through an attorney. In that early phase, the West Virginia personal injury attorney will deal with the manufacturer’s insurance carrier and provide to it all of the necessary factual and medical information. This includes a full description of what happened and a description of the dangerousness of the defective product.
Even at this pre-litigation stage, the claimant’s attorney may try to stimulate settlement by sending a preliminary report from an engineer or appropriate expert witness that testifies to the nature of the dangerous household product. If the medical prognosis is fairly definite, it may be time to try to settle. This is done by sending a full settlement package with a bottom-line settlement demand.
If the insurer and/or the manufacturer strongly disagree with the other side’s assessment, they will reject the claim and not make a counter-offer. In that event, the insurer will send the file to outside counsel if it hasn’t done so already. That is likely what happened in the case of a Pennsylvania woman who woke up one night to find herself in a bed of flames due to the manufacturer’s defective heating pad that had malfunctioned.
For one thing, the pad’s automatic turn-off procedure did not turn the pad off. The woman suffered serious burns and scarring. The case was filed in a Pennsylvania court against the manufacturer. The manufacturer’s attorney has filed to have the case removed into a federal district court, but the outcome on that issue is presently unknown.
In West Virginia the foregoing procedures are fairly typical in a defective product case. If the plaintiff goes into court with substantial expert testimony describing the defect and showing that the defect caused the injuries, there may be a reasonable likelihood of a recovery. That’s because once a defect is proved, liability is imposed under strict liability principles even if the defendant used all due care in creating and putting the product on the market.
Source: The Pennsylvania Record, Pa. woman burned by Jarden heating pad files products liability claim against manufacturer, Jon Campisi, Dec. 3, 2013