Inspections occur in the majority of products liability cases, whether pre-suit or during the pendency of an action. If handled properly, inspections can reveal a treasure trove of information to assist with litigating a matter. When mishandled, the results can be disastrous. Below are several pointers to consider when inspecting a product.
Timing of the Inspection
Sometimes you find out about an incident involving a client’s product prior to an injured party putting the client on notice. In those cases, if the client has control of the product, it is prudent to advise your client to preserve the product in the exact condition it is found. Unless it is crucial to inspect the product immediately (because of time sensitivity or other reasons), it is wise to wait until the other side is on notice before performing any inspection or testing of any kind. If time is of the essence, the company should make every effort to invite the injured party to attend an inspection. The combination of preserving evidence, coupled with notice if an inspection must occur, will help protect your client against future claims for spoliation.
In most cases, the other side is already involved once a manufacturer finds out about an incident involving its product. In those instances, if your client does not know where the product is, an initial phone call with the injured party’s attorney is an opportunity to find out what you can about the product’s chain of custody, including how it was removed from the scene and every place it was moved thereafter. Once you know where the product is located, request an inspection as soon as possible, whether litigation is pending or not. The exception to an early inspection would be if the opposing counsel will not agree to have more than one inspection without court involvement. In that instance, it is best to have more information and discovery about the incident so the client is able to assemble the soundest combination of experts to assist with the inspection.
Who Should Attend the Inspection
As stated above, if the manufacturer finds out about an incident involving its product prior to being put on notice by an injured party and an early inspection is necessary, it is best to make every effort to notify the injured party that will attend an inspection and invite them to be present.
On the company’s behalf, lining up the correct “team” from the start is crucial. The goal of an inspection is always to try and determine what, if anything, happened with the product you will be defending. However, that often cannot be done in the first inspection, and it is important to remember every person present at the inspection is now considered a witness to the case who can be deposed and examined at trial. Many times there is enough information prior to inspection to determine what in-house engineers/employees and/or outside experts should be present. If it is not clear what the possible issues are, it is preferable to attend with a company representative who would be in the best position to make that determination. If it becomes clear at the initial inspection that additional outside expertise is needed, it may be safest to suspend the inspection until further experts can be consulted.
Prior to the Inspection
If the case is in litigation, consult first with your expert to determine what he/she proposes doing at the inspection. If anything destructive needs to occur, the expert needs to submit a detailed protocol that the other side can review well before the inspection. Whether destructive testing occurs or not, it is most important that the inspection takes place with a protocol that has been agreed upon in advance by all involved parties. If any portion of the protocol is objected to, it is beneficial to wait until an agreement is reached, even if the court has to get involved.
You should also consider whether a general protective order for the product itself is necessary. Such a protective order would detail the preservation of the product during the pendency of the action, and would also generally describe the process for later inspections, including how such inspections should take place and the duties for both parties in requesting inspections and making the product available.
During the Inspection
Documentation during the inspection is key. There should be a sign-in sheet that lists every person present. Videotaping the inspection and the testing done is usually a good protective measure for both parties. Destructive testing should not be done unless the parties agree (preferable in writing). If at any point it looks like further experts/consultants are necessary to determine an issue, it is best to suspend any destructive portion of the inspection and try to reschedule until those persons can be present.