The Product Liability Claim Toolkit

Tort > Product Liability | Published 25 October 2025 - Updated 28 August 2026 | UpLaw - uplaw.us

⭐ Tool 1 goes to the client before the first substantive conversation. ⚠ Everything else in this toolkit is worthless if the product went back in the box.

Companion documents: Preserving Evidence and Pursuing a Product Liability Claim: A Practical Checklist · Product Liability: A Comprehensive Guide to Defects, Warnings, Causation, and Defenses · The Thing That Hurt You: How Product Liability Cases Are Actually Built

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Tool 1 — Client preservation instructions

PRESERVING EVIDENCE — PLEASE READ TODAY

1. Keep the product. All of it, including anything that broke off. Do not throw anything away.

2. ⚠ Do NOT send it back to the manufacturer or the store. Not with a prepaid label, not for a refund, not for "analysis." ⭐ Accept a replacement if you need one, but keep the original. If they press, tell them in writing that you are preserving it and will make it available for a joint inspection.

3. ⚠ Do NOT repair it, clean it, or take it apart. Not even to see what happened. ⭐ A well-meaning inspection at the kitchen table can end the case.

4. Photograph the serial number, model number, and any lot or date code, then photograph the whole product from every side.

5. Store it somewhere dry, secure, and out of reach. Note who has access.

6. Keep everything that came with it — box, packaging, manual, inserts, warning labels, and the receipt.

7. Keep the clothing you were wearing. Do not wash it. Store it in paper, not plastic.

8. Photograph where it happened before anyone cleans up.

9. Save video today. Doorbell, security, and dashcam systems record over themselves, often within a week.

10. Tell your doctor exactly what happened. ⭐ The first medical record is the most credible account of the mechanism that will ever exist.

11. Write down what happened today, in your own words, with the date.

12. ⚠ Do not give a recorded statement to the manufacturer, the store, or any insurer.

13. ⚠ Do not post about it on social media.

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

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Tool 2 — Preservation letter

[Date] · VIA CERTIFIED MAIL AND EMAIL

Re: [Product], model ______, serial ______ — Incident of [date] — NOTICE OF CLAIM AND DEMAND FOR PRESERVATION

This firm represents ______, who was injured on [date] by the above product. Litigation is anticipated. Your obligation to preserve evidence has attached.

You are directed to preserve, and not to destroy, alter, discard, or overwrite:

1. All exemplars of this model from the same production run;
2. Design records — drawings, specifications, revisions, hazard analyses, failure mode and effects analyses, design review minutes, and all decision memoranda;
3. All testing data, including failed tests, aborted tests, and tests not repeated;
4. Quality control records for the lot, run, and date code identified above;
5. ⭐ All complaint, warranty claim, incident, injury, and field failure records for this model, in any system;
6. All recall analyses, decisions not to recall, and related correspondence;
7. All regulatory submissions and correspondence concerning this product;
8. All versions of manuals, labels, packaging, warnings, and marketing materials;
9. All communications concerning the design feature or component at issue;
10. All files from prior claims or litigation involving this model;
11. Supplier specifications, certifications, and component testing;
12. Sales volume and installed base data;
13. All electronically stored information relating to the above, including email, engineering systems, ticketing systems, and backups. ⚠ Suspend routine deletion and rotation immediately.

⚠ Failure to preserve may result in sanctions, including an adverse inference instruction.

Our client is preserving the product itself and will make it available for a joint inspection on reasonable notice, under an agreed protocol. ⚠ No destructive testing will be conducted by any party without notice and an opportunity to attend.

☐ Send to: manufacturer · distributor · retailer · repair facility · employer · every insurer · any bailee. ☐ Keep proof of delivery. ☐ ⭐ For a vehicle, add: "Do not salvage, sell, or dispose of the vehicle." ⚠ Send it to the insurer within days.

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Tool 3 — Evidence log and chain of custody

Evidence log

Item	Description	Where obtained	Date	Condition on receipt	Photographs taken	Storage location
					☐

Items to log: the product and every fragment · packaging and inserts · manual and labels · receipt and order records · replaced parts · clothing · medical records · scene photographs · video files with hash values · the police or fire report · witness statements.

Chain of custody

Date/time	Released by	Received by	Purpose	Condition	Signature

☐ ⭐ Every transfer is recorded. ⚠ A gap in the chain is the first thing a defense expert will exploit. ☐ Photograph the item at each transfer. ☐ Store in conditions appropriate to the material — ⚠ corrosion, embrittlement, and biological degradation continue in a warehouse.

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Tool 4 — Joint inspection protocol

Inspection Protocol — [Product], [Date]

1. Attendance. All parties given ______ days' notice. Present: ______. 2. Location and custody. The item will remain in the custody of ______ throughout, and will be returned to secure storage immediately afterward. 3. Documentation. Photography and video of every stage by each party. ⭐ A complete photographic record is made BEFORE anything is touched. 4. Sequence. a. Visual examination and photography, as received; b. Dimensional measurement and weight; c. Non-destructive testing — radiography, ultrasound, dye penetrant, magnetic particle, as agreed; d. Functional testing, only if it will not alter the item, and only by agreement; e. Disassembly, only by agreement, with each fastener and component photographed in place before removal, individually bagged, and labeled; f. ⚠ Destructive testing only on further written agreement or court order, with a separate protocol. 5. Preservation. All removed parts, debris, and residue are preserved and inventoried. 6. No sampling or alteration except as provided above. 7. Exemplars. Any exemplar examined is identified by serial and production date. 8. Report. Each party's observations are its own; ⭐ no party is bound by another's characterization.

⚠ Never conduct destructive testing without notice. ⭐ The results will likely be excluded, and an adverse inference instruction may follow.

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Tool 5 — Preemption analysis worksheet

⭐ Run this before evaluating the merits.

Product type	Question	Result
Medical device	Premarket approval, or abbreviated substantial-equivalence clearance?	⚠ PMA → largely preempted, 21 U.S.C. § 360k, Riegel v. Medtronic, Inc., 552 U.S. 312 · ⭐ Abbreviated → not preempted, Medtronic, Inc. v. Lohr, 518 U.S. 470
Prescription drug	⭐ Brand or generic, per the dispensing record?	⭐ Brand warning claims generally survive, Wyeth v. Levine, 555 U.S. 555, subject to Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299 · ⚠ Generic warning claims preempted, PLIVA, Inc. v. Mensing, 564 U.S. 604; generic design claims preempted, Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472. Framework: 21 U.S.C. § 355
Motor vehicle	Which federal standard, and did it preserve manufacturer choice?	⚠ Geier v. American Honda Motor Co., 529 U.S. 861 · ⭐ Williamson v. Mazda Motor of America, Inc., 562 U.S. 323. Framework: 49 U.S.C. § 30101, 49 U.S.C. § 30118, 49 U.S.C. § 30120
Pesticide	Is the claim a labeling requirement in addition to or different from federal?	⭐ Parallel duties survive — 7 U.S.C. § 136v, Bates v. Dow Agrosciences LLC, 544 U.S. 431
Consumer product	Any express preemption in the applicable rule?	⭐ Generally no preemption of ordinary tort claims — 15 U.S.C. § 2051, 15 U.S.C. § 2064, 15 U.S.C. § 2072, 15 U.S.C. § 1261

☐ If preempted, evaluate whether a parallel claim can be pleaded with the required specificity. ☐ ⚠ Record the analysis in the file. ⭐ It is the first question an experienced defense lawyer will raise, and the first one a referral source will ask about.

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Tool 6 — Defect theory worksheet

	Manufacturing defect	Design defect	Failure to warn
Question	Did this unit depart from its own design?	Is the design itself unreasonably dangerous?	Was the warning adequate?
Comparison	⭐ Manufacturer's own specifications	⭐ A reasonable alternative design	An adequate warning
Key evidence	The unit; specifications; QC records; materials analysis	Design history; alternatives; competitor products; testing	Labels; manual; packaging; human factors analysis
Expert	Metallurgist / materials scientist	Design engineer	Human factors
⚠ Weak point	⚠ Requires the unit	⚠ Requires a real, tested alternative	⚠ Causation — did the plaintiff read it?
Defenses	Alteration; wear	State of the art; utility; misuse	Obvious danger; learned intermediary; no causation

☐ Plead all theories the facts support, and refine after inspection. ☐ ⭐ If the product was destroyed, evaluate the malfunction theory — ordinary use, a failure inconsistent with a non-defective product, other causes eliminated.

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Tool 7 — Alternative design worksheet

⭐ The center of a design case. Complete it before retaining an expert, if possible.

1. The defect. What about the design creates the danger? ______ 2. The proposed alternative. Describe it specifically — not "a better guard," but the geometry, the mechanism, and the materials. ______ 3. Did it exist at the time of sale? ☐ Yes ☐ No. ⭐ Evidence: competitor products ______ · patents ______ · industry standards ______ · the defendant's own prior or later models ______ 4. Technological feasibility. Why was it achievable with the technology available? ______ 5. Economic feasibility. Estimated per-unit cost, and cost relative to the product's price. ______ 6. Would it have prevented THIS injury? Explain the mechanism. ______ 7. Does it impair utility? What does the product lose? ______ 8. Does it introduce a new hazard? ⚠ Anticipate this; the defense will raise it. ______ 9. Testing. ⭐ Has it been built and tested? By whom, when, and with what result? ______ 10. Documentation — photographs, video, test data, and cost analysis.

⚠ An alternative that was never built is the classic exclusion under General Electric Co. v. Joiner, 522 U.S. 136. ⭐ A competitor's contemporaneous product with the feature is the cheapest strong evidence available, and it can be found before spending anything on experts.

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Tool 8 — Warning adequacy and causation analysis

Adequacy

Element	The actual warning	Adequate?	Notes
Present at all		☐
Location — on the product at the point of risk		☐	⚠ Manual-only is frequently inadequate
Conspicuousness — size, contrast, placement		☐
Signal word — danger / warning / caution		☐
⭐ Specific consequence stated		☐	⚠ "Use with care" warns of nothing
Instruction on how to avoid the risk		☐
Durability — survives normal use		☐
Language and pictograms for the user population		☐
Reaches the actual user, not just the purchaser		☐

Causation — ⚠ answer this before investing in the theory

☐ Did the plaintiff read the warnings that existed? ☐ Yes ☐ No ☐ Partially ☐ If no: does this state apply a heeding presumption? ☐ Yes ☐ No ☐ Unclear ☐ Is the presumption rebuttable, and what will rebut it? ☐ Would a differently worded warning have changed the plaintiff's conduct? ⭐ Be honest; the defense will ask this in the deposition. ☐ For drugs and devices: what did the prescriber know, and would a different warning have changed the prescription?

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Tool 9 — Defendant identification chart

Role	Entity	Solvent?	Domestic?	Jurisdiction?	Innocent seller statute applies?	Exception available?	Name at filing?
Manufacturer		☐	☐	☐	—	—	☐
Component manufacturer		☐	☐	☐			☐
Assembler / installer		☐	☐	☐			☐
Distributor		☐	☐	☐			☐
Retailer		☐	☐	☐			☐
Lessor / rental		☐	☐	☐			☐
Private labeler		☐	☐	☐			☐
Successor		☐	☐	☐			☐
Marketplace platform		☐	☐	☐			☐

⭐ Innocent seller exceptions to plead: manufacturer insolvent · manufacturer cannot be served or is beyond reach · seller altered the product · seller made independent representations · seller had actual knowledge of the defect · seller failed to exercise reasonable care in assembly or inspection.

⚠ Name everyone at filing. Dismissal is easy; joinder after the limitations period is not.

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Tool 10 — Document requests

⭐ Numbered in priority order. Fight hardest for the first three.

1. ⭐ All complaint, warranty claim, incident, injury, and field failure records concerning the [model] for the period ______ to ______, in any system or database.
2. ⭐ All documents analyzing the cost, feasibility, or effect of adding, modifying, or removing [the safety feature at issue].
3. All design review minutes, hazard analyses, failure mode and effects analyses, and decision memoranda concerning [the component or feature].
4. All engineering drawings, specifications, and revisions for the model, including superseded versions.
5. All testing protocols, data, and reports, including tests that were not completed or not repeated.
6. Quality control records for lot ______ and production run ______.
7. All supplier specifications, certifications, and component test data for [the component].
8. All versions of the owner's manual, labels, packaging, and warnings, with the dates each was in use.
9. All marketing and advertising materials describing the product's safety or performance.
10. All communications with any regulatory body concerning this model.
11. All documents concerning any recall, retrofit, service bulletin, or decision not to recall.
12. All prior lawsuits, claims, verdicts, and settlements involving this model or failure mode.
13. Sales volume and installed base for the model by year.
14. Organizational charts identifying design, safety, and quality personnel.
15. Document retention policies and any litigation holds issued.

⚠ Expect confidentiality designations. ⭐ Negotiate an attorneys'-eyes-only tier early — see Trade Secrets and Restrictive Covenants: A Comprehensive Guide to Protection, Enforcement, and Defense.

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Tool 11 — Deposition outlines

The design engineer ☐ Role, tenure, and responsibility for this model ☐ The design process, and who approved what ☐ Hazards identified during design, and how each was addressed ☐ ⭐ Alternatives considered — every one, and why each was rejected ☐ Whether the plaintiff's proposed alternative was considered, and by whom ☐ Testing performed, and any test that failed ☐ Awareness of competitor designs incorporating the feature ☐ Applicable industry standards and conformity ☐ Awareness of complaints or incidents involving this failure mode ☐ Whether the design was changed later, and why

The complaint file custodian ☐ Every system in which complaints, warranty claims, and incidents are recorded ☐ How records are coded, searched, and retained ☐ ⭐ Who reviews them, and what triggers escalation ☐ Whether a pattern was identified for this failure mode, and when ☐ What was done in response ☐ Retention and deletion practice

The warnings drafter ☐ Who wrote the warnings, and with what training ☐ Whether any human factors analysis or comprehension testing was done ☐ Why this placement, this signal word, and this wording ☐ Whether the specific consequence was considered and omitted ☐ Whether the warning was changed later

The corporate designee on the decision at issue ☐ Who made the decision, when, and on what record ☐ ⭐ What the cost analysis showed, and who saw it ☐ What the injury data showed at the time ☐ Whether the decision was revisited

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Tool 12 — Expert engagement

Scope. You are engaged to examine [item] and to render opinions on [defect / alternative design / causation / warnings].

⚠ Do not conduct any destructive testing without prior written authorization. All examination must follow the joint protocol.

Documentation. Photograph and video every stage. Maintain contemporaneous notes. Preserve all removed parts.

⭐ Alternative design. If you will opine that a safer design was available, you are expected to identify it specifically, establish feasibility at the time of sale, estimate cost, explain why it would have prevented this injury, address any new hazard it introduces, and — where feasible — build and test it.

Methodology. Your methodology must be documented, reproducible, and defensible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, and Kumho Tire Co. v. Carmichael, 526 U.S. 137. ⚠ Be prepared to close the gap between your data and your conclusion — General Electric Co. v. Joiner, 522 U.S. 136.

Prior opinions. Identify every case in which you have testified in the last four years, and disclose any prior opinion inconsistent with the one expected here.

Communications. Follow counsel's instructions regarding draft reports and communications.

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Tool 13 — Damages worksheet

Category	Past	Future	Source
Medical expenses			Billing records; life care plan
Lost earnings			Pay records; tax returns
Lost earning capacity			Vocational and economic experts
Household services			Life care plan
Home and vehicle modification			Life care plan
Pain and suffering			Testimony; records
Disfigurement and scarring			Photographs; treating physician
Loss of enjoyment of life			Before-and-after witnesses
Loss of consortium			Spouse's testimony
Property damage			Repair or replacement estimates
Punitive			⭐ Complaint file; rejected alternative; cost memo

☐ ⭐ Assemble "before and after" witnesses — coworkers, coaches, neighbors — who can describe what the person did before and cannot do now. They are more persuasive than any expert on non-economic damages. ☐ Obtain a life care plan for any permanent injury. ☐ Document every out-of-pocket cost, including mileage to appointments.

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Tool 14 — Lien resolution tracker

⚠ Resolve every lien before disbursing. ⭐ Failing to resolve a federal lien creates personal exposure for counsel.

Lienholder	Type	Amount asserted	Reduction requested	Basis	Resolved	Documentation
	Health insurer / ERISA plan				☐
	Workers compensation carrier				☐
	Medicare				☐
	Medicaid				☐
	Hospital lien				☐
	Disability carrier				☐

☐ Request the plan documents for any ERISA lien — ⚠ the right of reimbursement depends on the plan language. ☐ Argue the common fund and made-whole doctrines where available. ☐ Coordinate with the compensation carrier — see Workers Compensation Claims: A Comprehensive Guide to Notice, Benefits, Disputes, and Settlement. ☐ Address the underlying medical billing — see Disputing a Medical Bill and Stopping Improper Collections: A Practical Checklist and The Medical Billing Dispute and Collections Toolkit.

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Tool 15 — Spoliation motion outline

1. The duty attached on [date], when [the defendant received the preservation letter / litigation was reasonably anticipated / the incident was reported internally].

2. The evidence. [Describe what was lost: the exemplar units, the complaint database entries, the design files, the tested prototype.]

3. The loss. [What was destroyed, when, by whom, and under what policy or instruction.]

4. Culpability. [Negligent, reckless, or intentional; whether a litigation hold issued and whether it was followed.]

5. Prejudice. ⭐ Explain precisely what the lost evidence would have shown and why no substitute exists. ⚠ A prejudice showing stated in general terms fails.

6. Relief requested. ☐ Adverse inference instruction ☐ Preclusion of a defense ☐ Fees and costs ☐ Striking a pleading ☐ Default.

⚠ The same standard applies to a plaintiff who destroyed the product. ⭐ Which is why Tool 1 goes out first.

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Tool 16 — Settlement considerations

☐ Full value assessment — liability strength, damages, venue, defendant's ability to pay, punitive exposure. ☐ Structured settlement for catastrophic injuries or minors. ☐ ⚠ Court approval where a minor or an incapacitated person is involved. ☐ Special needs trust where the plaintiff receives means-tested benefits — ⚠ an outright settlement terminates eligibility — see Building and Maintaining an Estate Plan: A Practical Checklist and The Estate Planning and Trust Funding Toolkit. ☐ All liens resolved and documented before disbursement. ☐ Tax treatment confirmed — physical injury damages, interest, and punitive damages are treated differently. ☐ ⚠ Confidentiality clause — ⭐ discuss the public-safety trade-off with the client explicitly, and check whether the jurisdiction restricts sealing safety information. ☐ Return or disposition of the product, and whether it should be preserved for other claimants. ☐ Release scope — which entities, which claims, and whether derivative claims are included. ☐ Where the injury was fatal, court approval of the wrongful death allocation — see Bringing a Wrongful Death or Survival Action: A Practical Checklist and The Wrongful Death and Survival Action Toolkit.

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Tool 17 — Where this touches the rest of the file

Also in play	Read
The injury involved a vehicle	The First Forty-Eight Hours: What Actually Decides a Car Accident Claim · Motor Vehicle Collisions: A Comprehensive Guide to Fault, Coverage, Damages, and Settlement · Handling a Motor Vehicle Collision Claim from Scene to Settlement: A Practical Checklist · The Motor Vehicle Collision Claim Toolkit
The injury was fatal	Who May Sue and for What: How Wrongful Death Claims Actually Work · Wrongful Death and Survival Actions: A Comprehensive Guide to Standing, Damages, and Distribution
The injury happened at work	Workers Compensation Claims: A Comprehensive Guide to Notice, Benefits, Disputes, and Settlement
Medical bills are mounting	Medical Billing and Collections: A Comprehensive Guide to Surprise Bills, Charity Care, Disputes, and Credit · The Bill That Arrives Months Later: How Medical Billing Disputes Are Actually Resolved
Electronic evidence must be preserved	Issuing a Litigation Hold and Preserving ESI: A Practical Checklist
Design documents are claimed confidential	The Trade Secret and Restrictive Covenant Toolkit
Collections began during recovery	The Consumer Debt and Credit Reporting Toolkit · Disputing a Credit Report Error and Defending a Debt Collection Suit: A Practical Checklist

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Related Documents

• Preserving Evidence and Pursuing a Product Liability Claim: A Practical Checklist
• Product Liability: A Comprehensive Guide to Defects, Warnings, Causation, and Defenses
• The Thing That Hurt You: How Product Liability Cases Are Actually Built
• The Motor Vehicle Collision Claim Toolkit
• The Wrongful Death and Survival Action Toolkit