It May Have Been Defective (But Now It's Gone): Proof of Manufacturing Defect When the Product Is Lost or Destroyed
October 2011
DRI's RX For the Defense
Product liability cases often lack a critical piece of evidence: the product. Plaintiffs allege a drug or medical device was defectively manufactured, but when the surgical device was lost after surgery, the pill was swallowed, or the implant was discarded, the product cannot be examined to determine how it was defective or what caused it to malfunction.
The use of circumstantial evidence to prove a manufacturing defect in such circumstances is widely accepted, but it has important limitations. Some states specifically allow for a presumption of defect when a malfunction occurs, others require stronger circumstantial evidence before such a conclusion may be reached. The limits of acceptable circumstantial evidence, therefore, can have a profound impact on a case. Below are some of the issues that define the scope of acceptable circumstantial evidence when a product is lost or destroyed. Read more...
