Product Liability

You work hard to develop and design the highest-quality products and bring them safely to market, and you deserve tailored solutions to manage and defend those products from individual, class action, or regulatory attacks. At Foley, our product liability lawyers view such disputes through the prism of achieving your overall business goals while never forgetting to position you for a favorable resolution.

Product liability litigation has been a core firm strength since our founding in 1842. Our experience in Life Sciences and Manufacturing stands out, as our product liability lawyers advise U.S. clients and foreign parent companies on the supply chain and distribution channels used to make and sell their products. We counsel on how to reduce exposure to product liability claims and disputes with customers and suppliers.

Our Approach

Understanding Your Products: We have extensive experience in working with the technical aspects of manufacturers’ products to evaluate personal injury claims and develop defenses. We work not only with experts in more routine engineering disciplines (i.e., mechanical, electrical, and chemical) but also with experts in the fields of fire cause and origin, welding, metallurgy, tribology, FMEA, DVP&R, and systems engineering. We work with damages experts that include not only medical providers and life-care planning and life expectancy professionals, but also specialists in accounting, statistics, loss profits, and business valuation.

Working to Preempt and Mitigate Product Liability Claims: Defending litigation or resolving product liability claims can materially drain corporate resources. We help clients with safety programs and procedures, early intervention, and corrective actions. We review and draft warranties, disclaimers, and warnings. Our support of pre-claim investigation and evaluation assists clients in preventing incidents from becoming claims and claims from becoming lawsuits.

Setting Liability Limitations: We actively advise clients about potential litigation risks in product distribution and help draft contract language intended to define and limit their liability for product defects and failures. If a matter goes to litigation, our product liability lawyers are well versed in dealing with technical product considerations as well as the “battle of the forms” between the buyer’s and seller’s contracts.

Getting Efficient Results: Foley understands that excellent legal service is not only about winning the case. Outside counsel must understand the business, budgetary constraints, and how to manage third-party vendors. The key is first to understand the short- and long-term business goals of the matter, then tailor our legal services to achieve that goal in an efficient manner.

Our Experience

Today, we bring to bear product-related trial experience across modern and emerging manufacturing sectors, from pharmaceuticals and medical devices to automotive products, industrial equipment, and consumer products.

Life Sciences Industry Strength

Foley’s product liability attorneys have broad experience in litigation relating to many FDA-regulated products, from bio-prosthetic heart valves and cell-saver blood processing devices to branded and generic pharmaceutical products for the treatment of such conditions as cancer and ADHD. Foley has been on the leading edge in using federal preemption defenses as a means of protecting manufacturers and others in the product chain from significant liabilities. We assume this role for a wide range of clients, from manufacturers to health care systems. We also have experience in the supply chains and distribution channels that companies use to make and sell their products as well as in how those areas affect product liability claim exposure and mitigation.

Our team has tackled all types of product liability claims involving FDA-regulated products, including those alleging issues such as:

• Pharmaceuticals or devices that were improperly manufactured or otherwise damaged at any point in the chain of distribution between the factory and the consumer point of care.

• Pharmaceuticals or devices that were properly manufactured but have an unreasonably dangerous design that could result in injury, such as when a device breaks down in some way after being on the market for too long.

• “Marketing” of pharmaceuticals or devices, as in a recommendation, warning, or instruction (or lack thereof) addressing the danger posed by the pharmaceutical or device or, conversely, its safe and appropriate use.

Manufacturing Industry Strength

Foley’s knowledge of the manufacturing sector allows us to leverage our experience in product liability litigation to provide the most effective legal services available. Favorable resolution of litigation varies by client, case, and circumstances. Success can be defined by settlement, trial, delay, or other resolution. Budgetary constraints, public relations concerns, consumer sentiment, and brand protection all factor into providing clients with efficient, successful representation. Our first question is routinely, “What is your goal?” Understanding that goal from inception is paramount to developing a coherent strategy on each matter, including maintaining consistency across other jurisdictions and with your other partner law firms.

Although product defects are common, many companies prepare to defend against a product liability claim only after receiving formal notice or even as late as a filed lawsuit. Our experience allows us to provide counseling from product inception through dispute resolution. Manufacturers are more likely to successfully defend a product liability claim when they consider that all product failures may be potential claims and plan for, and react quickly to, product liability issues. We aim to be part of your team to consult on product design issues, perform product liability audits, review insurance coverage, and analyze warning labels and instructions, all with a goal of avoiding litigation and limiting liability. If a design or manufacture defect exists, our product liability lawyers work with you and advise you about potential litigation risks in distribution, including risk-limiting contract language.

Click here for a list of product liability representative matters.

Contact any of the Product Liability Team members below, or your Foley attorney, with any questions or concerns about possible litigation against your company.