10 Musts to Pursuing an Automotive Product Liability Case

By Tony Di Viesti, Automotive Litigation Consultants, Inc.

Early evaluation to determine the strengths and weaknesses of an automotive product liability case is absolutely essential.  Litigating these types of cases can be complex, technically challenging and very costly. This article provides some guidelines to use when deciding whether or not to pursue an automotive product liability case.

Here is a common scenario: A call comes in from a potential client whose family member was in an automobile accident and severely injured. The damages are significant. You are wondering whether there was some defect in the vehicle that may have caused this injury. How do you decide whether a viable claim exists against the manufacturer of the vehicle or a component? Often an attorney will spend tens of thousands of dollars pursuing a case, only to see the case fall apart due to not preserving evidence or inadequate review of accident related information. The key to insure that you will have a strong potential case is to collect, review and analyze all of the evidence and documentation available. It is best to have a consultant experienced in the technical and legal aspects of automotive product liability cases review this material for you, to assist in determining whether a potential case exists. This allows for an educated business decision on whether to spend the substantial amount of time and money to pursue this automotive product liability case. A little money spent up front analyzing the case will save you thousands of dollars in the long run.

Based on my experiences in consulting on automotive product liability cases, I have provided a top ten “to do” checklist to increase your chances of obtaining a successful outcome:

1. Inspect the subject vehicle, as soon as possible, at its present location

Immediately locate the subject vehicle. Put whoever has control of the vehicle on notice, preferably in writing, that the subject vehicle cannot be moved or altered because it may be evidence in a potential lawsuit. Find out who towed the vehicle from the accident scene to see if they have any pieces of the vehicle that may have fallen off, or that they picked up at the scene. As soon as possible, send someone out to photograph, document and measure the vehicle. Instruct them not to remove any parts from the vehicle as they may potentially damage evidence or set yourself up for a spoliation claim. The goal here is to see the vehicle in the condition it was in as close to the date of the accident as possible, and to maintain it in that condition until all potential parties are able to inspect the vehicle. Too many times attorneys wait to do this only to find that the vehicle has been altered between the time of the accident and the time they first inspected the vehicle. These vehicles are often located in a junk yard, insurance lot or some unsecured location and it is not uncommon for the vehicle to incur further damage due to being moved, or have parts missing because they fell off or were simply taken. An altered or changed vehicle can turn a potential good case into no case at all.

2. Move the vehicle to a secure indoor facility

Insure that the vehicle is moved to a secure indoor facility to preserve its condition. If you decide to store the vehicle in an outside facility, or if it cannot be moved from its present location, at the very least make sure it is properly covered. This step preserves the vehicle in the condition it was in after the accident, and helps prevent rust and corrosion of the vehicle from exposure to damaging weather. It is also a good idea to videotape the vehicle being loaded onto the transport vehicle, and also while unloaded at the storage facility. This is done to document the chain of custody and to avoid any possible spoliation issues that may arise. If the vehicle is not protected, you incur the risk of it being altered, parts being removed or stolen or worst case, the vehicle being destroyed. For example, if you have a potential post-collision fuel fed fire case and the vehicle sits out in the elements for a period of time, it will begin to rust and corrode.  This can cover up fire patterns critical to the analysis performed by the cause and origin fire expert. Without these patterns, the expert may not be able to tell how the fire started and where the origin was located. Another important reason to make sure the vehicle is secure and protected is that many of today’s vehicles contain “black boxes”. In fact, some vehicles as far back as 1994 have these devices. These “black boxes” may contain information helpful to your case. If these devices are damaged due to mishandling or if they are exposed to severe water damage, the stored data may be lost.

3. Inspect and document all other vehicles involved

Multiple car collisions are like puzzles. Without all of the pieces, you can’t complete the puzzle. If the subject vehicle is involved in a multi-car collision, locate the other vehicles and send someone out to photograph, document and measure them before they are fixed or destroyed. These vehicles may contain information that is critical to the reconstruction of this accident. It is best, if possible, to put these vehicles into storage to preserve their condition until your accident reconstructionist has had a chance to inspect and measure each vehicle. It is natural to only be concerned with the subject vehicle involved in the product liability case because that is where your potential defect is located. The problem is that accident speeds, changes in velocity, angles of impact, etc. will be critical in the analysis of the accident, and in the long run will affect the decision on whether or not to accept the case. If you do not make the effort to obtain all the information possible from these other vehicles, the accident reconstructionist may not be able to adequately reconstruct this accident.

4. Inspect and measure the accident scene

The accident scene often contains critical evidence to be used in the reconstruction of the accident. This reconstruction may be the basis on which your decision to accept the case is made. The quicker you get someone to inspect and document the scene of an accident, the more information you can gather. By delaying documentation of the scene, you risk losing critical evidence, such as tire marks, gauges, and fluid trails, which can be washed away or paved over. Send someone out immediately to photograph and document the scene. Preferably, also send out a survey crew to measure and map the accident site. You will want to hire a survey crew who has experience in surveying accident sites, or you will need to send someone out with them who knows what to document. As with many things, the devil is in the details. Of importance would be the overall roadway measurements, signs and post, trees, tire marks, scratches and gouges, fluid patterns, glass and debris. A knowledgeable consultant will make sure all items surveyed are photographed, and will document, collect and preserve any evidence found at the scene. If the accident scene is too busy, an aerial photographer can take photographs of the area where the accident occurred. A good aerial photographer can get close-up photographs that may show tire marks and other evidence remaining at the scene.

5. Obtain all police, fire and EMS reports, including photos and videos of the vehicles and accident scene

The more information you have from those who were at the scene, the better the case decision making.  Don’t forget to obtain information from those who witnessed the accident, who were sent to the accident scene to render aid to the injured, or others who investigated the accident. This information will provide a picture of what the accident scene and vehicle were like prior to the vehicles and victims being removed from the scene. Request copies of all reports, photographs, videos, witness statements, and diagrams generated by the police, fire and rescue personnel who responded to the accident. If there are photographs, make sure to get color copies.  If a reconstruction has been performed by the police, request a copy be sent when it is released. If a 911 call was placed, request a copy of the call or a transcript. If possible, obtain these documents prior to inspecting the vehicles and accident site.

6. Interview all witnesses to the accident including rescue personnel

Do not assume that all of the witnesses were accounted for in the accident reports. Many times all of the people who witnessed the accident are not identified or interviewed by the police. They may have critical information pertaining to the accident or the condition of the injured at the scene. It is worth the time and expense to send an experienced private investigator out to talk to all known witnesses and rescue personnel, as well as canvassing the area of the accident for other potential witnesses. Having detailed questions prepared for the investigator to ask these witnesses will help with obtaining the correct information needed for this specific accident. You may find information that was not in the reports that may help you in making a decision on whether to take the case. 

7. Research for recalls, defect investigations, customer complaints, etc.

Technical knowledge of the vehicle involved in the accident is critical to determining if a defect exists. An experienced consultant can obtain and analyze the technical information regarding the subject vehicle. The consultant can also research and analyze all publically available information pertaining to recalls, defect investigations, customer complaints, etc. This information may alert you to any current problems or issues with the vehicle that may be relevant to your case. They can also obtain vehicle specifications and brochures for the subject vehicle to familiarize you with the vehicle, and to see what comes standard on the vehicle and what is optional. Knowledge of the type of vehicle, including the standard and optional equipment installed, can save you from filing a bad case. Here’s an example I have seen. There is a severely injured client who was involved in an accident where there is an allegation of a non-deployment of a front passenger air bag. First evaluation suspects that if the air bag had deployed, the client would not have been injured. An attorney spends a significant amount of money obtaining documents and talking to experts only to find out there was no front passenger air bag in the vehicle in the first place. Had the vehicle specifications been reviewed, they would have found out the vehicle did not come with a front passenger air bag. Obtaining this information earlier in the case saves money and time spent pursuing a bad case. 

8. Obtain all repair records pertaining to the vehicle.

Knowing the condition of the vehicle prior to the accident is another crucial aspect of determining whether to pursue an automotive product liability case. It may also lead to other parties that should be included in the lawsuit. A seasoned consultant can find out if there are any aftermarket items installed on the vehicle, or if the vehicle had been repaired. We can go further and ask the owner of the vehicle or family of the injured to look for copies of previous repair records on the vehicle in question, or to obtain them from where they had the vehicle repaired. There may be information in these records indicating the recent repairs could be a cause of the accident. Example: Someone has a potential brake failure case and wants to pursue a product liability case against the manufacturer of the vehicle. It would be best to know ahead of time if the brakes were ever repaired. If the brakes were repaired just prior to the accident, and it is later determined the repair shop incorrectly repaired the brakes, the case focus changes. You always want to know this before you spend a significant amount of money pursuing a products case that does not exist.

9. Determine if the injury or fatality is caused by the potential defect and if the injury is substantial enough to pursue a case.

This is the most critical aspect of determining whether to take the case or not. Even if the potential client is injured in an automobile accident, it may not have been caused by a defect in the vehicle. Additionally, if the potential client is injured and their damages are very low, the case would not be worth pursuing. Before making this decision, obtain all medical records and/or autopsy reports pertaining to the injured party. This seems a logical step in the decision making process but, it is not uncommon for this step to be overlooked or taken for granted. Here is a true and unfortunate example that emphasizes the importance of this. An attorney calls to ask me to consult on a post collision fuel fed fire case in which a person was fatally injured. He informs me that one of his experts found a defect in the vehicle that was the cause of the post collision fire. At this point, he has spent an excessive amount of time and money hiring experts in pursuing this case. After the initial discussions about the facts of the case, my first question to him was, “Did the person die from the fire?” He informed me that no autopsy was performed but he believed the cause of death was related to the fire. It is up to the plaintiffs to prove their case. Without the cause of death they have no case. After convincing him that he needed to be sure about the cause of death, the body was eventually exhumed and an autopsy performed showed that the person died from impact related injuries and not from the defect in the vehicle that caused the fire. The attorney would have saved substantial time and money had this been done as soon as he accepted the case. 

10. Have someone with experience in automotive product liability cases review the material to help determine the merits of the case.

A few details ignored can completely derail a case. Making sure those few details are not overlooked will save you from spending unnecessary time and money in pursuing a bad case. Often they may convince you that you have an automotive product liability case worth pursuing. If you had a medical malpractice case, wouldn’t you want someone with knowledge in the medical field to review your case and give you an opinion as to the merits of the case? The same goes for automotive product liability cases. Once you have obtained all of the available evidence, information and research, have a consultant experienced in handling automotive product liability cases review the material and give you their independent opinion on the merits of the case. 

Conclusion 

Ideally we would like to get cases immediately after the accident occurs, so that all the evidence and information is available and obtainable. Even if time has passed and you are up against a statute running, reviewing and following these ten tips for pursuing a successful automotive product liability case will increase the chances of a successful outcome.  Better information allows for a more accurate business decision on whether to accept and pursue a case, which in turn will save you time and money. 

Biography:

Tony Di Viesti, Illinois attorney and degreed engineer, is the president of Automotive Litigation Consultants, Inc.