Checklist · Tort

Preserving Evidence and Pursuing a Product Liability Claim: A Practical Checklist

21 U.S.C. § 360

Type
Checklist
Jurisdiction
National
Date
2026-03-26
Topic
Tort

This checklist runs a product liability claim from the injury through settlement, in the order the work must actually happen. Phase one is preservation, because the product is the case and the most common way a good claim dies is a prepaid return label accepted in the first week. Later phases cover the intake investigation, the threshold questions that should resolve most case decisions in the first hour, including the statute of repose and the preemption analysis that can end a claim before the merits are reached. Theory phases distinguish manufacturing defect, design defect with its reasonable alternative design requirement, and failure to warn with its causation problem. Procedural phases cover the chain of distribution and who to name, the inspection protocol that keeps expert work admissible, discovery targets led by the complaint file, expert selection and the admissibility gate, damages documentation, and lien resolution before disbursement.

Preserving Evidence and Pursuing a Product Liability Claim: A Practical Checklist

Tort > Product Liability | Published 26 March 2026 - Updated 23 July 2026 | UpLaw - uplaw.us

⚠ Do not return the product to the manufacturer or seller. Do not repair it. Do not take it apart. Do not throw it away. ⭐ The single most common way a meritorious product case dies is a prepaid shipping label accepted in the first week.

Use with Product Liability: A Comprehensive Guide to Defects, Warnings, Causation, and Defenses and The Product Liability Claim Toolkit.

Phase 1 — The first forty-eight hours

☐ ⭐ Secure the product, complete and unaltered, including every fragment and every part that separated. ☐ ⭐ Photograph the serial number, model number, lot number, and date code FIRST, before anything is moved or touched. ☐ Photograph the product from every angle, and the scene before anything is disturbed. ☐ Store it dry, secure, and out of reach, with a written record of who has had access. ☐ ⚠ Decline the manufacturer's or retailer's offer to inspect, replace, or take the product — in writing. ⭐ Take a replacement if you need one; do not surrender the original. ☐ Preserve the packaging, inserts, manual, and every label. ☐ Preserve the receipt, order confirmation, and warranty registration. ☐ Preserve any part that was replaced or repaired, and the removed original. ☐ Preserve the clothing worn, unwashed, in paper rather than plastic. ☐ Secure video — doorbell, security, dashcam, workplace — ⚠ before it overwrites, which is often within seven days. ☐ Get medical care and describe the mechanism precisely. ⭐ The first medical record is the most credible account of how the injury happened that will ever exist. ☐ Write down what happened, in your own words, dated, the same day. ☐ Collect witness names and contact information. ☐ ⚠ Do not post about it publicly, and ⚠ do not give a recorded statement to the manufacturer's representative or its insurer. ☐ Consult counsel quickly — ⚠ the decisions that matter most are made in week one.

Phase 2 — Preservation letters

☐ Send within days to: the manufacturer · the distributor · the retailer · any repair or service facility · the employer, if a workplace injury · every insurer · and any bailee holding the product.

☐ Demand preservation of:

  • ☐ The product and all exemplars from the same production run
  • ☐ Design records — drawings, specifications, hazard analyses, design reviews, and decision memoranda
  • ☐ Testing data, including failed tests
  • ☐ Quality control records for the lot and the run
  • ☐ ⭐ The complaint, warranty claim, and incident file for the model
  • ☐ Recall analyses and correspondence, whether or not a recall issued
  • ☐ Regulatory submissions and correspondence
  • ☐ Marketing materials, manuals, and label artwork in every version
  • ☐ Communications about the design feature at issue
  • ☐ Prior litigation files involving the same model

☐ ⚠ State that litigation is anticipated and that the preservation obligation has attached. See Issuing a Litigation Hold and Preserving ESI: A Practical Checklist.

☐ Send by a method that produces proof of delivery, and keep it.

☐ ⭐ Where the product is a vehicle, act within days — ⚠ an insurer's total loss determination results in salvage and destruction within weeks. Demand a hold, and download the event data recorder.

☐ ⭐ Where a device will be surgically removed, arrange preservation IN WRITING with the hospital before the procedure — ⚠ explanted devices are otherwise discarded as biohazard waste.

Phase 3 — Threshold evaluation

⭐ Most case decisions should be made in the first hour, on these questions.

☐ ⭐ Does the product exist, unaltered, and who has custody? ⚠ If it is gone, is a malfunction theory available in this state? ☐ ⚠ ⭐ How old is the product, and does a statute of repose apply? This runs from first sale, is not tolled by discovery, and is absolute where it applies. ☐ When did the injury occur, and when was the cause discovered? ☐ Is the manufacturer solvent, identifiable, domestic, and amenable to jurisdiction? ☐ If not, does an innocent seller statute protect the retailer, and does an exception apply? ☐ ⭐ Preemption:

  • ☐ Medical device — which pathway? ⚠ Premarket approval largely preempts under 21 U.S.C. § 360k and Riegel v. Medtronic, Inc., 552 U.S. 312; the abbreviated pathway does not, per Medtronic, Inc. v. Lohr, 518 U.S. 470
  • ☐ ⭐ Drug — brand or generic? ⚠ Generic warning and design claims are preempted — PLIVA, Inc. v. Mensing, 564 U.S. 604, and Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472. Brand warning claims generally survive — Wyeth v. Levine, 555 U.S. 555, subject to Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299. Get the dispensing record, not the prescription.
  • ☐ Vehicle — which standard, and did it preserve manufacturer choice? Geier v. American Honda Motor Co., 529 U.S. 861, versus Williamson v. Mazda Motor of America, Inc., 562 U.S. 323
  • ☐ Pesticide — 7 U.S.C. § 136v and Bates v. Dow Agrosciences LLC, 544 U.S. 431; parallel duties survive ☐ Was the product modified, and by whom? ☐ What was the user doing, and is it reasonably foreseeable? ☐ Are the injuries permanent and documented from the first encounter? ☐ Will the expert cost be justified by the case value?

Phase 4 — Research before you commit

☐ Search the federal consumer product incident and recall databases for the product, model, and manufacturer — established under the framework at 15 U.S.C. § 2051, with recall authority at 15 U.S.C. § 2064. ☐ Search the vehicle defect and recall databases for vehicles and equipment — 49 U.S.C. § 30101, 49 U.S.C. § 30118, 49 U.S.C. § 30120. ☐ Search adverse event reporting databases for drugs and devices; 21 U.S.C. § 355 supplies the drug approval framework. ☐ Search for consolidated proceedings already pending involving this product. ☐ Search prior verdicts and settlements involving the same model or failure mode. ☐ ⭐ Find a competitor's contemporaneous product incorporating the safer feature. ⚠ This is the cheapest and strongest alternative-design evidence available, and it can be found before any expert is retained. ☐ Obtain the applicable industry standards and check whether the product conformed. ☐ Check whether a private action lies for a knowing rule violation — 15 U.S.C. § 2072. ☐ For hazardous household substances, check 15 U.S.C. § 1261.

Phase 5 — Pick the theory, and prove it

Manufacturing defect ☐ Obtain the design specifications and tolerances ☐ Obtain quality control records for the lot and run ☐ Arrange materials analysis of the failed component ☐ Obtain exemplars from the same production run ☐ ⭐ If the product was destroyed, evaluate the malfunction theory — ordinary use, a failure inconsistent with a non-defective product, and other causes eliminated

Design defect ☐ Determine which test the state applies — consumer expectations, risk-utility, or both ☐ ⭐ Identify the reasonable alternative design:

  • ☐ A specific design, not a concept
  • ☐ Feasible technologically and economically at the time of sale
  • ☐ Would have prevented or reduced THIS injury
  • ☐ Would not unreasonably impair utility or price
  • ☐ ⭐ Built and tested, ideally, or already in use by a competitor ☐ Assemble the risk-utility factors — utility, likelihood and severity of harm, availability of a substitute, ability to eliminate the danger, user's ability to avoid it, user's expected awareness, loss spreading ☐ ⚠ Anticipate the Daubert challenge to the alternative design opinion

Failure to warn ☐ Collect every warning as it actually appeared — on the product, on the packaging, in the manual ☐ Assess adequacy — conspicuousness, signal word, ⭐ specificity of the consequence, instruction on avoidance, location, durability, language ☐ ⚠ ⭐ Address causation immediately: did the plaintiff read the warnings that existed? If not, the claim depends on a heeding presumption. ☐ Research whether this state applies a heeding presumption, and whether it is rebuttable ☐ For drugs and devices, plan the prescriber deposition under the learned intermediary doctrine ☐ Consider post-sale duty to warn where the danger became known later

Phase 6 — Name the defendants

☐ Manufacturer of the finished product ☐ Component manufacturer, where the component was defective ☐ Assembler and installer ☐ Distributor and wholesaler ☐ Retailer ☐ Lessor or rental company ☐ Private labeler ☐ Successor corporation, where a theory supports it ☐ Marketplace platform, where the jurisdiction permits ☐ ⭐ Name everyone at filing. ⚠ Dismissal later is easy; joinder after the limitations period is impossible. ☐ Check the innocent seller statute and plead an exception where one applies — insolvency, unavailability, alteration, independent representation, or actual knowledge.

Phase 7 — The inspection

☐ ⭐ Notice every known party with a reasonable opportunity to attend. ☐ Agree a written protocol in advance — what will be done, in what sequence, by whom, and what will be preserved. ☐ Photograph and video every stage — before, during, and after each step. ☐ Non-destructive examination first, always. ☐ ⚠ No destructive testing without notice and an opportunity to attend, or a court order. ☐ Preserve every removed part, fastener, and fragment, individually bagged and labeled. ☐ Document chain of custody at every transfer. ☐ Weigh and measure where dimensional evidence matters. ☐ Obtain exemplars for comparison. ☐ Store appropriately afterward — ⚠ corrosion, degradation, and biological breakdown continue. ☐ ⭐ Have your expert present. ⚠ An inspection conducted without the person who will testify about it is usually wasted.

Phase 8 — Discovery

☐ ⭐ The complaint, warranty, and incident file for the model — request it first and fight for it. It is where the case is. ☐ Design history — hazard analyses, failure mode and effects analyses, design review minutes, and decision memoranda ☐ ⭐ Cost-benefit analyses and any document pricing a safety feature. ⚠ This is where the punitive case is. ☐ Testing data, including failed tests and tests not repeated ☐ Quality control records for the lot and run ☐ Supplier specifications and component certifications ☐ Regulatory submissions and correspondence ☐ Recall analyses, whether or not a recall issued, and whether the remedy was performed on this unit ☐ Prior litigation, verdicts, and settlements for the model ☐ Marketing materials, manuals, and label artwork in every version ☐ Sales volume and installed base, for statistical context

☐ Depositions: the design engineer · the safety engineer · the custodian of the complaint file · the corporate designee on design decisions · the person who drafted the warnings · ⭐ the person who decided against the alternative design.

☐ ⚠ Expect confidentiality and trade secret objections to design documents. ⭐ Negotiate a protective order with an attorneys'-eyes-only tier early — see Trade Secrets and Restrictive Covenants: A Comprehensive Guide to Protection, Enforcement, and Defense.

Phase 9 — Experts

☐ Retain early, before the inspection. ☐ Design or mechanical engineer — defect and ⭐ the alternative design ☐ Materials scientist, metallurgist, or fractographer — failure analysis ☐ Fire origin-and-cause investigator — fire and electrical cases, ⚠ retained before the scene is released ☐ Human factors expert — warnings, comprehension, foreseeable use ☐ Accident reconstructionist — vehicle and machinery ☐ Treating physicians and a medical causation expert ☐ Toxicologist or epidemiologist — exposure cases ☐ Economist and life care planner — damages ☐ Industry standards expert

☐ ⚠ Prepare for the admissibility gate: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 · the analytical gap problem in General Electric Co. v. Joiner, 522 U.S. 136 · and the extension to all expert testimony in Kumho Tire Co. v. Carmichael, 526 U.S. 137. ☐ ⭐ Build and test the alternative design. ⚠ An untested opinion that a safer design "could have been used" is the classic exclusion. ☐ Confirm the expert's methodology is documented and reproducible. ☐ Confirm no prior opinion contradicts the one to be offered.

Phase 10 — Damages and resolution

☐ Document: past and future medical expenses · past and future lost earnings and earning capacity · pain and suffering · disfigurement · loss of enjoyment · loss of consortium · property damage. ☐ Assess punitive exposure — ⭐ knowledge from the complaint file, the rejected alternative, and the cost memo. ☐ Obtain a life care plan for catastrophic injuries. ☐ ⚠ Identify and resolve every lien before disbursing: health insurer · workers compensation carrier · Medicare and Medicaid · hospital liens. ⭐ Failing to resolve a federal lien creates personal exposure for counsel. ☐ Where the injury was work-related, coordinate with the compensation claim — see Workers Compensation Claims: A Comprehensive Guide to Notice, Benefits, Disputes, and Settlement. ☐ Address medical billing exposure — see Disputing a Medical Bill and Stopping Improper Collections: A Practical Checklist. ☐ ⚠ Consider whether a confidentiality clause is appropriate, and discuss the public-safety trade-off with the client explicitly. ☐ Where the injury was fatal, shift to the wrongful death and survival framework — see Bringing a Wrongful Death or Survival Action: A Practical Checklist.

The mistakes that end cases

⚠ Accepting the manufacturer's prepaid return label. ⚠ Throwing the product away, or letting a relative take it apart. ⚠ Repairing it before inspection. ⚠ Destructive testing without notice. ⚠ Letting the insurer salvage the vehicle. ⚠ Failing to arrange preservation of an explanted device before surgery. ⚠ Losing the packaging and manual — where the warnings live. ⚠ Missing a statute of repose. ⚠ Failing to check the device pathway or whether the drug was generic. ⚠ Suing only the manufacturer and losing the seller to the limitations period. ⚠ Offering an alternative design that was never built or tested. ⚠ Not requesting the complaint file. ⚠ Disbursing settlement funds before resolving a federal lien.

Category supplements

Vehicles and vehicle components

☐ ⚠ ⭐ Stop the salvage. Notify the insurer in writing within days that the vehicle must be preserved; ⚠ a total loss determination results in sale and destruction within weeks. ☐ Download the event data recorder before the vehicle moves again. ☐ Photograph the interior, including seat positions, belt geometry, airbag deployment, and any belt loading marks. ☐ Preserve the deployed airbags and the seat belts intact — ⚠ do not cut them. ☐ ⭐ Plead crashworthiness separately — the manufacturer may be liable for enhanced injuries even where someone else caused the collision. ☐ Obtain the police report, scene photographs, and any dashcam or traffic camera footage. ☐ Check the vehicle identification number against open recalls, and whether the remedy was performed.

Prescription drugs

☐ ⭐ Obtain the pharmacy DISPENSING record, not the prescription — ⚠ brand versus generic decides whether a claim exists at all. ☐ Obtain the label in effect on the date of dispensing, in every version. ☐ Depose the prescriber — knowledge of the risk, and whether a different warning would have changed the prescription. ☐ Search adverse event reporting for the drug and the reaction. ☐ Preserve remaining pills and the bottle, with the lot number.

Medical devices

☐ ⭐ Identify the regulatory pathway before evaluating the merits. ☐ ⚠ Arrange preservation of the explanted device IN WRITING with the hospital before the revision surgery. ☐ Obtain the implant card, the device identifier, and the operative reports. ☐ Search device adverse event reporting. ☐ Where preemption applies, evaluate whether a parallel claim can be pleaded with specificity.

Industrial machinery

☐ Photograph the machine in place before it is moved, cleaned, or returned to service. ☐ ⭐ Document whether the guard was present, and whether the machine can perform routine work with it in place. ⚠ This is the question that decides the case. ☐ Obtain the machine's service history, modification records, and the employer's training materials. ☐ ⚠ Check the statute of repose first — industrial equipment survives decades, and repose bars these claims more often than any other category. ☐ Coordinate with the workers compensation claim and the carrier's lien.

Fires and electrical

☐ ⭐ Retain an origin-and-cause investigator before the scene is released. ☐ Preserve the debris field, not just the suspected appliance. ☐ Obtain the fire department's investigation report and photographs. ☐ Notify the property insurer, which may be running its own subrogation investigation — ⚠ and whose investigator may remove evidence. ☐ Search recall databases for the appliance, the battery, and the charger separately.

The refrigerator card

⭐ Give this to the client at the first phone call, before anything else is discussed.

IF A PRODUCT INJURED YOU — DO THIS TODAY

  1. ⚠ KEEP THE PRODUCT. Every piece. Do not throw it away.
  2. ⚠ DO NOT send it back to the company. ⭐ Not even with a prepaid label. Not even if they promise a refund.
  3. ⚠ DO NOT fix it. DO NOT take it apart.
  4. Photograph the serial number and any lot or date code.
  5. Keep the box, the manual, the labels, and the receipt.
  6. Keep the clothing you were wearing. Do not wash it.
  7. Photograph where it happened, before anyone cleans up.
  8. Save any doorbell or security video today — it erases itself.
  9. Tell the doctor exactly how it happened.
  10. Write down what happened, today, in your own words.
  11. ⚠ Do not give a recorded statement to the company or its insurer.
  12. ⚠ Do not post about it.

⭐ You do not have to decide today whether to make a claim. You only have to keep the object.

Case evaluation summary sheet

Question Answer Effect
Product in hand, unaltered? ☐ ⚠ If no, is a malfunction theory available?
Age of product / statute of repose? ⚠ Absolute bar where applicable
Manufacturer solvent and reachable? ☐ Determines whether the seller stays in
Innocent seller statute — exception available? ☐
Device pathway / brand or generic? ⭐ May end the case
Modification after sale? ☐
Foreseeable use? ☐
Prior incidents found in public databases? ☐ ⭐ Strongest early signal
Recall covering this failure mode? ☐ Notice and description
Competitor product with the safer feature? ☐ ⭐ Alternative design evidence
Injuries permanent and documented? ☐
Estimated expert cost versus case value ⚠ The gating question
Decision ☐ Accept ☐ Investigate further ☐ Decline

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