Settling Products Liability Claims
Created by FindLaw's team of legal writers and editors | Last reviewed December 03, 2018
If you’ve been injured by a defective product, you know the many ways it’s impacted your life. Maybe you see a fast and easy settlement as the quickest route to getting your life back together. Before accepting any settlement offer or demanding compensation, you should consult with an experienced attorney and be aware of the possible complications in settling products liability claims.
Product Liability Case Basics
Manufacturers, distributors, and sellers of a product are responsible for injuries caused by that product if the product is defective in its design, manufacture, or marketing. For more information, see the FindLaw Product Liability Law section.
Liability is who is responsible for your injury. A product liability case can include the manufacturer, distributor, or seller of the product and any component parts that were defective and contributed to the injury.
Before discussing settlement with any of the parties, you need to identify all possibly responsible parties. What happens if these companies no longer exist? In the case of mergers, sales, or spin offs, determine who the corporate successors are. If dissolved or bankrupt, determine if you can still sue them.
This step is important because settling with one defendant may release all other possible defendants. Many states have "joint and several liability” laws. Under these laws, all defendants are responsible for all of the damage. For example, if there are 4 potential defendants and 1 of them no longer exists or went bankrupt, the other 3 must pay for the that defendant's share of damages.
Determining your damages isn’t as simple as adding up your medical bills and time lost from work. Most states have specifically identified damages that are allowed in product liability cases. Generally, these damages can include past and future medical and nursing bills, past and future wage loss, past and future pain and suffering, past and future emotional distress, past and future loss of consortium, and past and future expenses associated with the injury for things you can’t do anymore.
Some damages require expert proof. Usually you need a doctor to say that you are likely to incur future medical expenses. The doctor needs to outline the nature and frequency of those expenses. Similarly, after your doctor says you are permanently disabled, you may need an economist to demonstrate what you lost in wages and benefits.
Subrogation means that if an insurance company or your employer has paid for a portion of your damages, such as for medical expenses or lost wages, then the insurance company or employer is entitled to receive that money back when you settle. The idea is that it is unfair for you to get money to pay medical bills that have already been paid by someone else.
The insurance company fills a subrogation claim against your case. The claim states how much was paid for medical bills. Your insurers will know about the claim because you’re required to send a notice of your claim to all potentially interested parties, including your medical or disability insurer and your employer. These parties may attend the settlement negotiations to protect their interests. Sometimes a settlement can exclude the insurer’s or employer’s interests by settling around those and allowing them to deal directly with the defendants.
A settlement is considered a full, final, and complete settlement of all aspects of your claim. Courts are reluctant to undo a settlement, unless there’s fraud. If your injury is extensive or the full extent of injury isn’t yet ascertainable, you may consider a structured settlement or a partial settlement with a reservation of rights.
For example, if you’re exposed to asbestos, you may have fibrosis in your lungs now, but also be at an increased risk for lung cancer. You may be offered a settlement based on your existing medical condition with a reservation of the right to come back later for more compensation if you develop cancer. With severe injuries involving extensive and ongoing medical care, you may consider a settlement that will pay out over a long period, especially as it often pays more.
Should You Settle Your Product Liability Claim? Ask an Attorney
Settling a products liability claim is complicated. The companies you're seeking compensation from will have experienced attorneys helping them during the negotiations. Because your settlement will most likely be a full, final, and complete settlement of your claim, you need to ensure it's appropriate. Consider speaking with a product liability attorney today.
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Contact a qualified product liability attorney to make sure your rights are protected.