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Practice Tip: Prove Your Case with Circumstantial Evidence of Defect
In order to recover for any injury caused by a product, the product must be proven to have been defective. Yet many product injuries are caused by defects that are not readily ascertainable. Does that mean you should reject the case or discontinue?
If the action is based on an express warranty or misrepresentation, it is generally not necessary to prove that the product was defective or unreasonably dangerous. Such a claim focuses on whether a product conforms to the manufacturer's statements about the product rather than on whether or not the product is defective. UCC 2-313.
If a plaintiff is injured in an automobile accident, must the plaintiff identify some character trait or personality defect in the defendant, which caused the defendant to drive negligently? Of course not. Likewise, a plaintiff does not necessarily have to prove the specific defect in a product that caused injury to the plaintiff. Proof of a defect may be made by: 1) direct proof based on the nature of the accident in the context of the particular product involved; 2) direct affirmative proof through opinion testimony by an expert witness; or 3) circumstantial proof based on an inference of the defect from a weighing of several factors.
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