Practice Tip: Mounting an Effective Defense to Use of the 'Malfunction Theory'

For product liability practitioners, issues regarding liability historically have been won or lost in a battle of the experts. The reason: The plaintiff must show the product at issue contains a defect, which existed at the time it left the manufacturer's control, that caused the plaintiff's injury. Whether on the side of the plaintiff or the defendant, the most significant liability battle is waged over proving the existence of a defect, which usually requires reliance on expert testimony. With the increasing reliance of plaintiffs' counsel on the malfunction theory to establish product defect, the focus in some product liability cases has shifted from reliance on effective expert testimony to reliance on creative and effective lawyering.

19 minute read December 29, 2004 at 02:09 PM

By

Juliet A. Cox