What is Product Liability When a Military Product Fails?

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April 04, 2019
Edward Smith

What is Product Liability When a Military Product Fails?

Working in the US military service, National Guard, or reserve units means working with thousands of different products – from vehicles and aircraft to heavy equipment and weapons – on a daily basis. And sometimes, manufacturing or design defects in these products may lead to bodily injury or, in extreme situations, the death of the victim.

Injury cases involving military products can be tricky and challenging because the manufacturers or vendors often have legal protections to shield them from liability.

However, when service members get injured or die due to a product failure, the victims or their surviving family members may be able to bring a civil lawsuit against the corporations that provided the faulty products in question to the military personnel.

How to Get Started?

Gather information

The first thing your lawyer needs to do to thoroughly evaluate these cases is to gather substantial background information. For example, where did the incident occur? Who are the potential defendants? Who is the product manufacturer? These are the key questions you need to ask.

Generally, the laws of the place where the mishap occurred, governs the applicable rights of the parties. Your lawyer will ask you questions such as:

  • Did the harm take place on the American or foreign soil?
  • Who in-charge (custodian) of the failed product?
  • Who was responsible for providing maintenance?

The answers will help your lawyer determine which state or nation’s laws will apply, what solutions are available under those laws, and what statutes of limitations exist.

Your attorney will also talk to you or your family to identify the names of all of your friends and unit members who are most likely to have knowledge about the use, maintenance, and any reported problems about the product in question.

Secure the product

Securing the said product/equipment is critical in these cases, but it can pose challenges if the product is located on a military base. Generally, the military unit where the incident took place retains the equipment (physical evidence) pending further investigation.

If the failed product has been lost or disposed of, the military will still have comprehensive records regarding its history and eventual disposal since the military investigates every incident that involves a military product.

Even if your lawyer absolutely cannot access the product (for example, due to combat loss), there is typically enough of a paper trail that will allow your attorney to investigate probable causes of equipment failure and pursue the case.

Carefully assess potential defendants. Identifying all potentially responsible parties is not an easy task in these cases. More often than not, a device or component is designed, manufactured, modified, and maintained by different parties.

What if the manufacturing defect caused the failure? Or what if it was a design defect that was responsible?

It is best to start with identifying the equipment that failed. The military or other relevant agency will have launched an investigation immediately after the incident occurred, so your attorney can file a Freedom of Information Act (FOIA) to get a copy of the redacted results of this investigation.

A careful examination of this document will help your attorney identify the failed component, as well as all the parties involved in manufacturing, modifying, and maintaining that part. Remember, the investigation and discovery should focus on the precise defect and how and by whom it was approved.

Military Investigation

The military branch involved in the incident is bound to conduct at least one official investigation. All the important army regulations and publications can be easily accessed online, and they will also help you understand the investigation material that you should access based on the different classifications.

There are collateral board reports, safety board reports, and FOIA requests that your lawyer can access to know significant information regarding the equipment, its defect, and parties responsible for the defect.

Special Defenses Available in a Military Product Liability Case

Other than the usual affirmative defenses available in all products liability litigation, defendants often appeal some exceptional doctrines in cases of military products.

Throughout the years, the US Supreme Court has stated time and again that the federal government cannot be held liable for injuries to service members that occur from activities involving military service.

The court has also said that the relationship between soldiers and their superiors might be affected if the federal government was tolerated for negligent orders or careless acts committed in the course of military duty.

Some rather creative defense attorneys may argue that since the defendant(s) is a civilian, they are a de facto part of the army and should be given government status and immunity. Your lawyer should be prepared to argue that the civilian defendant is a for-profit corporation.

The military service members who have been harmed by faulty equipment deserve aggressive advocacy. Successful litigation not only provides you and your families much-needed relief but it also ensures that the design, manufacturing, and maintenance practices would be changed to make sure the incident doesn’t happen again.

Watch YouTube Video: Veterans Suing 3M. In the following video, CBS This Morning reports on military veterans who are suing the company 3M who sold defective earplugs.

Sacramento Products Liability Lawyers

I’m Ed Smith, a Sacramento products liability attorney. If you are or a family member has sustained injuries due to a defective product or equipment, call me at (916) 921-6400 or (800) 404-5400 for free, friendly advice.

I’m a member of the National Association of Distinguished Counsel and the Million Dollar Advocates.

Learn more about my practice at the following sites:

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