The Role of Historical Research in Product Liability Litigation

Product liability is not necessarily an area of law many people immediately associate with the need for conducting historical research. After all, litigation over an injury involving burns from a hot cup of coffee or an exploding soda bottle doesn’t have much to do with dusty old historical documents. Or does it? What about an injury sustained while operating a piece of machinery that came with an inadequate instruction manual? Or an injury from a household product that had a misleading label? And what about the potential successor liability risks involved when acquiring a company that might have manufactured a defective product?

Similar types of situations were examined at last month’s DRI Product Liability Conference, which we attended because such situations may very well require historical research efforts, as part of an effective litigation strategy, or during a thorough due diligence investigation. Taylor & Hammel is often approached by companies seeking to defend product liability claims, and by firms representing plaintiffs who have sustained injuries from particular products. Of course, before we take on any projects we diligently check for potential conflicts as it is always our goal to serve as neutral fact finders. Given our proximity to so many valuable repositories in the Washington, DC, area, and our expertise in knowing how and where to look for potentially relevant documents, we are well-positioned to help locate the “smoking gun” that could make or break a claim.

Product liability is, in essence, the liability of any party along the distribution chain of a defective product, for damages caused by the use of that product. Historically, if an injured party had no contractual relationship with the maker of a defective product, there was no basis for liability, and therefore no recovery. Caveat emptor was the only protection available in many cases. As the law evolved, liability shifted from one based in contract to one grounded in tort law, starting with Justice Cardozo’s famous Macpherson v. Buick Motor Company decision in 1916, and culminating with the landmark 1963 California Supreme Court case, Greenman v. Yuba Power Products. Today, with some variability among the different states, product liability is generally considered to be a strict liability offense, meaning that fault is irrelevant and the only requirement is that the product be defective. Product defects may occur at the design stage, the manufacturing stage, or in the marketing of the product itself. Liable parties include not only the original manufacturer, but also potentially the retailer who chooses to place a product on the shelf for sale, regardless of any knowledge or control over the existence of a defect. The stakes, therefore, are high, and both plaintiffs and defendants need to be sure they have access to the documentation they need to help prove or disprove liability.



Despite being a strict liability offense, there are defenses available to a product liability claim, some of which are very relevant to the kinds of services we at T&H can provide. For example, relevant historical documents might include contemporary scientific and trade literature regarding the product in question, as part of showing industry practices and recognized standards. This was the case in a recent project that we worked on, in which trade literature and product manuals confirmed that the only standard for the industry was actually the manufacturer’s standard. Similarly, historical literature about comparable products could be used to show the existence of alternative (i.e., safer) designs. Locating copies of old product instruction manuals or historical advertisements in consumer magazines might help show whether a company provided adequate warnings to the consumer, or whether it published misleading marketing information. Searching for government agency filings, such as with the U.S. Patent & Trademark Office, can also provide potentially useful information regarding a company’s knowledge of particular design defects. Finally, compilation of a particular company’s history could uncover potential successor liability claims that might affect the decision whether or not to proceed with a merger or acquisition.

These are just some of the types of historical documents waiting to be unearthed, and many of them can be found here in the Washington, DC, area. In addition to the vast resources available at Library of Congress, including an extensive collection of historical scientific and trade literature, books, technical journals, conference materials, newspaper, and magazines, there are numerous other repositories T&H researchers work at on a regular basis. These include government agency libraries, the National Archives, and the Smithsonian Institution libraries, among many others. When considering a particular strategy for pursuing or defending a product liability claim, those dusty old historical documents might be more relevant than you think.