Product Liability Answer and Affirmative Defenses - North Dakota

ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL — NORTH DAKOTA

TABLE OF CONTENTS

1. Caption
2. Preliminary Statement
3. Responses to Numbered Paragraphs
4. General Denial
5. Affirmative Defenses
6. Reservation of Defenses
7. Prayer for Relief
8. Demand for Trial by Jury
9. Signature Block
10. Certificate of Service
11. North Dakota Practice Notes
12. Sources and References

1. CAPTION

STATE OF NORTH DAKOTA

IN THE DISTRICT COURT, [_____________] JUDICIAL DISTRICT

COUNTY OF [________________________________]

CIVIL CASE NO. [________________________________]

ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL

2. PRELIMINARY STATEMENT

Defendant [ANSWERING DEFENDANT'S NAME] ("Defendant"), by and through its undersigned counsel, hereby answers Plaintiff's Complaint and asserts the following affirmative defenses. Defendant denies each and every allegation in the Complaint not expressly admitted herein. Defendant further states that any statement, denial, or admission in this Answer is made without prejudice to, and without waiving, any defense available under N.D.R.Civ.P. 12(b), all of which Defendant expressly reserves.

3. RESPONSES TO NUMBERED PARAGRAPHS

3.1. [Paragraph 1.1]: Defendant [admits / denies / lacks knowledge or information sufficient to form a belief as to the truth of the allegations in] Paragraph 1.1.

3.2. [Paragraph 1.2]: Defendant [admits / denies / lacks knowledge] the allegations in Paragraph 1.2, except admits that [STATE WHAT IS ADMITTED — e.g., it is a corporation organized under the laws of [STATE]].

3.3. [Paragraph 1.3]: Defendant denies that this Court has personal jurisdiction over Defendant for purposes of all claims asserted, and reserves all jurisdictional challenges. To the extent Paragraph 1.3 alleges that Defendant placed products into the stream of commerce knowing they would reach North Dakota, Defendant [admits / denies].

3.4. [Paragraph 1.4 through 2.9]: Defendant [answers each paragraph individually here].

3.5. [Counts I-V]: Defendant denies that Plaintiff is entitled to any relief on any count and denies all allegations of liability, breach, defect, causation, and damages, except as expressly admitted herein.

4. GENERAL DENIAL

Defendant denies each and every allegation of the Complaint not expressly admitted, qualified, or otherwise responded to above, and demands strict proof thereof.

5. AFFIRMATIVE DEFENSES

For its affirmative defenses, and without conceding that Defendant bears the burden of proof on any issue not properly its burden, Defendant states as follows:

FIRST AFFIRMATIVE DEFENSE — Failure to State a Claim

The Complaint, in whole or in part, fails to state a claim upon which relief can be granted under N.D.R.Civ.P. 12(b)(6).

SECOND AFFIRMATIVE DEFENSE — Statute of Limitations (N.D.C.C. § 28-01-16)

Plaintiff's claims are barred, in whole or in part, by the six-year statute of limitations contained in N.D.C.C. § 28-01-16(5), measured from the date the claim accrued under the discovery rule.

THIRD AFFIRMATIVE DEFENSE — Statute of Repose (N.D.C.C. § 28-01.3-08)

Plaintiff's claims are barred, in whole or in part, because the alleged injury occurred more than ten (10) years after the initial purchase of the Product for use or consumption, and/or more than eleven (11) years after the date of manufacture, and beyond the useful safe life of the Product, contrary to N.D.C.C. § 28-01.3-08.

FOURTH AFFIRMATIVE DEFENSE — No Defect

The Product was not defective in design, manufacture, marketing, warning, or instruction at any time relevant to this action. The Product was reasonably safe for its intended and reasonably foreseeable uses.

FIFTH AFFIRMATIVE DEFENSE — State of the Art (N.D.C.C. § 28-01.3-06)

The design, formulation, manufacture, warnings, and instructions for the Product conformed to the state of scientific, technical, and industry knowledge available at the time the Product left Defendant's control. Pursuant to N.D.C.C. § 28-01.3-06, such conformity is evidence that the Product was not defective.

SIXTH AFFIRMATIVE DEFENSE — Rebuttable Presumption Against Defect (N.D.C.C. § 28-01.3-09)

The Product complied with applicable governmental safety standards, codes, and industry standards in effect at the time of manufacture and is therefore entitled to the rebuttable presumption that it was not defective under N.D.C.C. § 28-01.3-09.

SEVENTH AFFIRMATIVE DEFENSE — Alteration or Modification (N.D.C.C. § 28-01.3-03)

Plaintiff's claims are barred, in whole or in part, because a substantial contributing cause of the alleged injury was an alteration or modification of the Product made after it left Defendant's possession and control, which alteration or modification changed the purpose, use, function, design, or intended manner of use of the Product, contrary to N.D.C.C. § 28-01.3-03.

EIGHTH AFFIRMATIVE DEFENSE — Misuse / Unforeseeable Use

Plaintiff's claims are barred, in whole or in part, because the Product was used in a manner not reasonably foreseeable to Defendant, contrary to its intended purpose, and/or in a manner contrary to clear warnings or instructions accompanying the Product.

NINTH AFFIRMATIVE DEFENSE — Pure Comparative Fault (N.D.C.C. § 32-03.2-03)

To the extent Plaintiff is found to have any fault, including failure to follow instructions, ignoring warnings, misuse, assumption of risk, or failure to mitigate damages, Plaintiff's recovery must be reduced under N.D.C.C. § 32-03.2-03, which applies pure comparative fault to product-liability actions.

TENTH AFFIRMATIVE DEFENSE — Modified Comparative Fault (N.D.C.C. § 32-03.2-02)

In the alternative, to the extent any of Plaintiff's claims are governed by the modified comparative-fault provisions of N.D.C.C. § 32-03.2-02, Plaintiff's claims are barred entirely if Plaintiff's fault is determined to be 50% or greater, or in any event reduced by the percentage of fault attributable to Plaintiff.

ELEVENTH AFFIRMATIVE DEFENSE — Several (Not Joint) Liability

Pursuant to N.D.C.C. § 32-03.2-02, Defendant's liability, if any, is several only and not joint, and Defendant cannot be held liable for damages attributable to the fault of others.

TWELFTH AFFIRMATIVE DEFENSE — Innocent / Nonmanufacturing Seller (N.D.C.C. § 28-01.3-04)

To the extent Defendant is a nonmanufacturing seller within the meaning of N.D.C.C. § 28-01.3-04, Defendant is not liable for any product-liability claim because the manufacturer is subject to service of process under the laws of North Dakota and is solvent and amenable to judgment, and Defendant did not (a) participate in the design or manufacture of the Product, (b) modify or alter the Product, (c) have actual or constructive knowledge of the alleged defect, or (d) make affirmative representations about the Product's quality or characteristics upon which Plaintiff relied.

THIRTEENTH AFFIRMATIVE DEFENSE — Right of Indemnity (N.D.C.C. § 28-01.3-05)

In the alternative, Defendant pleads its statutory right of indemnity from the manufacturer pursuant to N.D.C.C. § 28-01.3-05.

FOURTEENTH AFFIRMATIVE DEFENSE — Learned Intermediary

To the extent the Product is a prescription drug, medical device, or other product distributed through learned intermediaries, Defendant's duty to warn was discharged by adequate warnings provided to the prescribing physician or other learned intermediary, who was the proper recipient of such warnings under North Dakota law.

FIFTEENTH AFFIRMATIVE DEFENSE — Sealed Container / Sophisticated User

Defendant delivered the Product in a sealed container as supplied by the manufacturer, had no opportunity to inspect, and reasonably relied on the manufacturer's representations and warnings. In the alternative, the end user was a sophisticated user with independent knowledge of the relevant hazards.

SIXTEENTH AFFIRMATIVE DEFENSE — Open and Obvious Risk

Any risks associated with the Product were open and obvious to Plaintiff and to ordinary consumers with the ordinary knowledge common to the community.

SEVENTEENTH AFFIRMATIVE DEFENSE — Assumption of Risk

Plaintiff voluntarily, knowingly, and unreasonably assumed the risks attendant to the use of the Product.

EIGHTEENTH AFFIRMATIVE DEFENSE — Failure to Mitigate

Plaintiff failed to take reasonable steps to mitigate damages, including but not limited to [DESCRIBE — e.g., failure to obtain timely medical care, failure to follow physician instructions, failure to undergo recommended treatment, failure to seek alternative employment].

NINETEENTH AFFIRMATIVE DEFENSE — Superseding/Intervening Cause

The alleged injury was caused, in whole or in part, by superseding and/or intervening acts or omissions of third parties not under Defendant's control, including but not limited to [IDENTIFY — e.g., a co-defendant, a third-party modifier, an employer, a healthcare provider], which break the chain of proximate causation.

TWENTIETH AFFIRMATIVE DEFENSE — Federal Preemption

To the extent applicable, Plaintiff's claims are preempted, in whole or in part, by federal statute or regulation, including but not limited to [IDENTIFY — e.g., the Food, Drug, and Cosmetic Act; the Medical Device Amendments; FIFRA; the National Traffic and Motor Vehicle Safety Act].

TWENTY-FIRST AFFIRMATIVE DEFENSE — Compliance with Government Standards

The Product was designed, manufactured, labeled, and marketed in compliance with applicable federal, state, and local statutes, regulations, and standards.

TWENTY-SECOND AFFIRMATIVE DEFENSE — No Privity of Warranty

To the extent Plaintiff asserts breach-of-warranty claims, Plaintiff lacks the requisite privity, failed to give timely notice as required by N.D.C.C. § 41-02-70 (U.C.C. § 2-607), and/or any warranty was effectively disclaimed.

TWENTY-THIRD AFFIRMATIVE DEFENSE — Collateral Source Rule (N.D.C.C. § 32-03.2-06)

Any award of economic damages must be reduced by collateral-source payments received by Plaintiff, pursuant to N.D.C.C. § 32-03.2-06.

TWENTY-FOURTH AFFIRMATIVE DEFENSE — Exemplary Damages Limitations

Plaintiff is not entitled to exemplary damages because (a) Plaintiff did not obtain leave of court before pleading them under N.D.C.C. § 32-03.2-11(1), (b) the conduct alleged does not constitute oppression, fraud, or actual malice, and (c) any award of exemplary damages would violate the Due Process Clauses of the United States and North Dakota Constitutions.

TWENTY-FIFTH AFFIRMATIVE DEFENSE — Spoliation

To the extent Plaintiff or persons acting at Plaintiff's direction failed to preserve the Product or other relevant evidence, Defendant is entitled to an adverse-inference instruction or other appropriate sanction.

TWENTY-SIXTH AFFIRMATIVE DEFENSE — Lack of Personal Jurisdiction / Improper Venue / Insufficient Service

Defendant reserves and asserts defenses of lack of personal jurisdiction, improper venue, and insufficient service of process under N.D.R.Civ.P. 12(b).

TWENTY-SEVENTH AFFIRMATIVE DEFENSE — Settlement / Release / Accord and Satisfaction

To the extent Plaintiff has executed any release, settlement, or accord and satisfaction with any party or non-party concerning the matters alleged, Plaintiff's claims are barred or reduced accordingly.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE — Constitutional Limits on Damages

Any award of compensatory or exemplary damages disproportionate to actual harm violates the Due Process Clauses of the United States and North Dakota Constitutions.

6. RESERVATION OF DEFENSES

Defendant reserves the right to assert additional affirmative defenses as discovery progresses and to amend this Answer pursuant to N.D.R.Civ.P. 15.

7. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court enter judgment as follows:

• A. Dismissing the Complaint with prejudice;
• B. Awarding Defendant its costs and disbursements, including reasonable attorney's fees where authorized;
• C. Granting Defendant such other and further relief as the Court deems just.

8. DEMAND FOR TRIAL BY JURY

Defendant hereby demands a trial by jury of twelve (12) on all issues so triable as a matter of right pursuant to N.D.R.Civ.P. 38 and N.D. Const. art. I, § 13.

9. SIGNATURE BLOCK

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], ND State Bar ID No. [________]

Counsel for Defendant [ANSWERING DEFENDANT NAME]

[STREET ADDRESS]

[CITY, ND ZIP]

Telephone: [________________________________]

Email: [________________________________]

10. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [_______________], 20[____], the foregoing ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL was served on the following counsel of record by [electronic filing through the North Dakota Odyssey eFile system / first-class United States mail / personal delivery]:

[OPPOSING COUNSEL NAME]

[FIRM]

[ADDRESS]

[EMAIL]

[________________________________]

[ATTORNEY NAME]

11. NORTH DAKOTA PRACTICE NOTES

• Time to answer. N.D.R.Civ.P. 12(a)(1)(A) generally requires an answer within 21 days after service of the summons and complaint. Calculate carefully where service is by publication, on out-of-state defendants, or on a registered agent.
• Waiver of defenses. Most affirmative defenses must be raised in the answer or first responsive pleading or are waived under N.D.R.Civ.P. 8(c) and 12(h). Personal jurisdiction, venue, and insufficient service objections are particularly time-sensitive and should be preserved at the outset.
• Pure comparative fault for product cases. Counsel for the defense should always plead BOTH § 32-03.2-03 (pure comparative fault — applies to product liability) AND § 32-03.2-02 (50% bar — general negligence) in the alternative, because the dividing line between "product-liability" claims and adjacent negligence theories is often disputed.
• Innocent-seller defense. N.D.C.C. § 28-01.3-04 requires that the manufacturer be subject to North Dakota service of process and amenable to judgment. If the manufacturer is foreign, judgment-proof, or has dissolved, the defense may not be available, and the seller may face full liability subject to its indemnity rights under § 28-01.3-05.
• Statute of repose — constitutional caveat. Hanson v. Williams County, 389 N.W.2d 319 (N.D. 1986), struck down the predecessor repose statute (N.D.C.C. § 28-01.1-02) on equal-protection grounds. The current § 28-01.3-08 has been re-enacted and applied, but counsel pleading the defense should be prepared to defend against a renewed constitutional challenge by the plaintiff.
• Six-year limitations period. Plaintiffs frequently file ND product-liability suits years after a similar claim would be time-barred elsewhere; do not assume the typical 2- or 3-year period applies. Confirm accrual under the discovery rule of § 28-01-16.
• Exemplary damages procedure. A motion for leave to amend to plead exemplary damages must be supported by affidavits making a prima facie showing of oppression, fraud, or actual malice under N.D.C.C. § 32-03.2-11(1). Resist any unauthorized exemplary-damages allegation in the original complaint and move to strike if necessary.
• Federal removal. If diversity exists, consider removal under 28 U.S.C. § 1441 within 30 days of service. Federal preemption defenses (FDA, FIFRA, NHTSA) are typically more favorably received in federal court.
• Spoliation and product preservation. Send a preservation letter to plaintiff's counsel immediately upon receiving notice of the claim; ND courts will issue adverse-inference instructions where the product is destroyed without notice to the manufacturer.

12. SOURCES AND REFERENCES

• N.D.C.C. Title 28, Chapter 28-01.3 (Products Liability) — https://ndlegis.gov/cencode/t28c01-3.pdf
• N.D.C.C. § 28-01-16 (Statute of Limitations) — https://ndlegis.gov/cencode/t28c01.pdf
• N.D.C.C. Title 32, Chapter 32-03.2 (Fault, Damages, Payments) — https://ndlegis.gov/cencode/t32c03-2.pdf
• North Dakota Rules of Civil Procedure — https://www.ndcourts.gov/legal-resources/rules/ndrcivp
• Hanson v. Williams County, 389 N.W.2d 319 (N.D. 1986) — https://law.justia.com/cases/north-dakota/supreme-court/1986/11066-3.html
• Hanson v. Williams County, 452 N.W.2d 313 (N.D. 1990) — https://law.justia.com/cases/north-dakota/supreme-court/1990/890151-3.html
• Dickie v. Farmers Union Oil Co., 2000 ND 111, 611 N.W.2d 168 — https://law.justia.com/cases/north-dakota/supreme-court/2000/990389.html
• Restatement (Second) of Torts § 402A
• North Dakota Pattern Jury Instructions — Civil (NDJI-Civil)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. A North Dakota-licensed attorney must review and customize this document before filing. Verify all citations and the current constitutional status of N.D.C.C. § 28-01.3-08 before relying on the statute-of-repose defense.