How Old is Too Old? Handling Older Product Liability Cases

At the AAJ Annual Convention in July, Brian Franciskato, one of our trial lawyers and also a speaker, talked about handling older product liability cases.

Product Liability Presentation at AAJ Annual Convention

Brian discussed two considerations when deciding whether to take an older product liability case including:

Product age. If the product is 10, 20 or 30 years old, has it been altered? Will evidence still exist? What are the theories of liability? How much will it cost?

Viable defendants. Is the manufacturer still in existence? What about the distributor company, designers/consultants/surgeons/engineers? Sales reps and others?

older product liability product liability cases product liability     AAJ annual convention speaker

Legal Principles Impacting Older Product Liability Claims

Statute of Repose imposes a hard deadline in product liability cases. The plaintiff must file a claim within a certain period of time based on the actions of the manufacturer. You usually have 10 to 15 years.

State of the Art is the affirmative defense of the defendant manufacturers when they are trying to escape liability, that the product adhered to:

  • Industry custom and practice at the time of manufacture
  • Safest existing technology that has been adopted for use at the time of manufacturer
  • Newest technology at the time of manufacture

Ways to prove a defendant’s product was not state of the art include (but not limited to):

  • Industry standards
  • Governmental regulations
  • Investigating other similar incidents
  • Discovery of prior claims and/or litigation

Post-Sale Duty to Warn. When a design defect is present at the time of sale, the manufacturer has a duty to take reasonable steps to warn at least the purchaser of the risk as soon as the manufacturer learns or should have learned of the risk.

Restatement 3rd, Section 10 provides. One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller’s failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller’s position would provide such a warning.

The standard governing liability of the seller is an objective reasonable person standard, which is traditionally applied in negligence cases. Thus, the party’s conduct, under the circumstances may be reasonable and another’s unreasonable. Each defendant’s actions and their independent knowledge will have to be explored to evaluate liability.

Theories of Defect

There are three basic “categories of strict liability product defect” which include:

  • Manufacturing defect, when it doesn’t meet the defendant’s specifications
  • Design defect, where it is unreasonably dangerous
  • Inadequate instructions and warnings

A design defect is defined as:

A product is defective in design when foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.


About Brian Franciskato

Brian Franciskato trial lawyers speakerBrian is frequently asked to speak at conferences on topics related to civil litigation, evidence, and products liability. He will be a panel member talking about the latest developments in the Exactech project at the MTMP in October.

Brian is a partner at Nash & Franciskato Law Firm representing plaintiffs in serious personal injury and wrongful death claims. He also handles mass tort cases involving defective medical devices on a nationwide level.

Brian currently serves on the Board of Governors for AAJ and for the Missouri Association of Trial Attorneys. He is a lifetime member of the Multi-Million Dollar Advocates Forum and been routinely selected to Super Lawyers for Kansas and Missouri.


Dean Nash, Brian Franciskato and Randy James bring over 80 years of combined legal experience helping clients. They have gained local and national recognition and are routinely asked by other attorneys to act as lead counsel or co-counsel in complex cases against some of the world’s largest corporations.

If you’ve been seriously injured in an accident and need a personal injury lawyer, contact the team at Nash & Franciskato for a no-obligation, free review of your situation at (877) 284-6600.


Past results afford no guarantee of future results and each case is different and is judged on its own merits. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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