September 18, 2017

Preserving Evidence in a Product Liability Case: Focus on Medical Devices

Marta L. Villarraga, Ph.D., and William Kane, Ph.D. – February 21, 2017

The central piece of evidence in a product liability trial is usually the product at issue. Both sides of the dispute will want their technical experts to have the opportunity to examine the subject product and, potentially, conduct further analyses to support their opinions. Thus, preserving this evidence throughout the litigation is crucial, particularly because valuable and often unique information may only be obtained by an expert examining the product.

In light of the need to preserve this critical evidence, someone charged with examining the product must consider a variety of issues, including how the evidence should be handled so that no one party is prejudiced by another party's examination. When the product at issue is a medical device, particularly one that has been explanted from a patient, additional issues need to be considered, including how to handle a potentially biohazardous device and whether there are any timing considerations for the analyses. Also, there may be a desire to do destructive testing for further in-depth analysis, which an expert may consider depending on the technical issues being examined.

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