What Happens During Discovery in a Product Liability Case?

Learn about the process of gathering evidence when you sue over a defective or dangerous product—and why it’s so important for the outcome of your case.

If you’ve suffered injury or illness (or a loved one has died) because of a defective or dangerous product—such as a prescription drug or a medical device—you might have a valid product liability claim against the company that sold or manufactured the product. After you’ve filed a lawsuit, the next step in your case will be an information-gathering or research process known as “discovery.”

This article gives a basic overview of discovery in product liability cases, including the kinds of information you and the defendant will have to share, the methods of getting that information, how disputes about discovery are resolved, and how the process works when your case is consolidated with other similar cases in what’s known as “multidistrict litigation.”

Purpose and Types of Discovery in Product Liability Cases

During the discovery process, you and your attorney will try to get as much information as possible from the other side (the defendant) that will help prove your claims. For example, you may try to get the defendant to turn over internal company communications that show it knew about the problems with its product but covered them up. At the same time, the defendant will also seek out anything it can use to counter your claims, such as testimony that reveals you used the product improperly or medical records that point to another cause for your medical condition.

The information gathered during discovery will lay the foundation for the evidence presented at trial—or, more typically, will set the stage for both sides to agree on a settlement. That’s why the discovery phase is so important—and why it can lead to so many legal battles over what information should or shouldn’t be shared (more on that below).

Discovery involves different methods for getting this information, including:

  • interrogatories, which are basically written questions that must be answered in writing and under oath
  • subpoenas and requests for production of documents, such as medical records, emails, financial information, insurance policies, and reports prepared by the other side's scientific experts; and
  • depositions of witnesses who must answer lawyers’ questions under oath (usually at a lawyer’s office, though they might be held via video conference).

Resolving Discovery Disputes in Product Liability Cases

Lawyers often say that product liability cases are won or lost during discovery. Given the stakes, it’s no surprise that the defendant in your case will fight hard to avoid turning over evidence it doesn’t want you to see. It may claim that your request is too broad, that it covers information that’s not relevant, or that you’ve asked for documents that are protected or “privileged” (such as confidential communications protected by the attorney-client privilege). The defendant might also simply stonewall, turning over some but not all of what you’ve requested. Your attorney would then have to file a “motion to compel,” asking the judge to order the defendant to cooperate, and there will be a court hearing on the issue.

Because scientific evidence is often crucial in product liability cases, discovery typically involves disputes over the validity of that evidence. For instance, the defendant might ask the court to exclude the testimony of one of your expert witnesses, claiming that the expert isn’t qualified or is relying on studies that aren’t scientifically valid. These disputes lead to dueling scientific opinions, more court hearings, and rulings by the judge.

How Discovery Works in Multidistrict Litigation

The discovery process in product liability cases can be incredibly complex, time consuming, and expensive —which can make these cases nearly impossible for individual plaintiffs to pursue against deep-pocketed companies with armies of lawyers. Class action lawsuits are one way to level the playing field (at least somewhat) by having a few representatives pursue a single case on behalf of other people who were harmed by the same defendant.

In a class action lawsuit, however, all of the plaintiffs must have suffered the same harm. That makes class actions inappropriate for many product liability cases, where the plaintiffs’ illness or injuries can be very different—ranging from a hospitalization and brief recovery to permanent disability or death.

But there’s another way for individual plaintiffs to pool their resources when they’re suing the same defendant (or defendants) over the same defective or dangerous product. Their separate cases may be consolidated in what’s known as a multidistrict litigation (MDL), with one federal judge overseeing discovery and other pretrial proceedings.

If your case is transferred to an MDL (which could happen after you or the defendant requests it), you’ll still be represented by your own lawyer. But the judge will appoint a group of attorneys who will take the lead and act for all of the plaintiffs in managing discovery and presenting arguments to the judge.

How Long Does Discovery Take in Product Liability Cases?

If all of this sounds to you like discovery could be a drawn-out process, you wouldn’t be wrong. There’s really no way to predict how long the process can take in your case, but it could go on for years. (However, the time may be shortened in your case if you join an MDL that’s already far along in the discovery process.)

Also, you and the defendant might reach a settlement in the case at any time, including during the discovery process. (Learn more about the criteria for settlements in product liability cases.)

This brief outline of the discovery process should also make it clear that a product liability claim isn’t the kind of legal case you can handle on your own. Anytime you’re up against a company with lots of resources to fight lawsuits, you need an attorney on your side. Learn more about when you do and don’t need a personal injury lawyer, and see our page on product liability claims to find more information on finding a lawyer for claims concerning some specific products, like Juul® and Zantac®.

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