Product Liability Answer and Affirmative Defenses

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES — NEW HAMPSHIRE PRODUCT LIABILITY

TABLE OF CONTENTS

1. Caption
2. Preliminary Statement
3. Specific Responses to the Complaint
4. Affirmative Defenses
5. Reservation of Defenses
6. Jury Demand
7. Prayer for Relief
8. Signature and Service Blocks
9. Certificate of Service
10. New Hampshire Practice Notes
11. Sources and References

1. CAPTION

THE STATE OF NEW HAMPSHIRE

[COUNTY NAME] COUNTY, SS.

SUPERIOR COURT

DOCKET NO. [________________________________]

ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT [DEFENDANT NAME]

2. PRELIMINARY STATEMENT

NOW COMES Defendant [DEFENDANT NAME] ("Defendant"), by and through its undersigned counsel, and answers Plaintiff's Verified Complaint as follows. Except as expressly admitted below, Defendant denies each and every allegation in the Complaint and demands strict proof thereof. Headings and section titles in the Complaint are not factual allegations and require no response; to the extent a response is required, the headings are denied.

3. SPECIFIC RESPONSES TO THE COMPLAINT

Parties, Jurisdiction, and Venue

Paragraph 1.1: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations and therefore denies them.

Paragraph 1.2: Admitted that Defendant is a [STATE] corporation with its principal place of business at [ADDRESS]. The remaining allegations are denied.

Paragraph 1.3: Denied.

Paragraph 1.4: Denied.

Paragraph 1.5: Paragraph 1.5 states a legal conclusion to which no response is required; to the extent a response is required, denied.

Paragraph 1.6: Admitted that the Superior Court has subject-matter jurisdiction; the remaining allegations are denied.

Paragraph 1.7: Defendant does not contest personal jurisdiction for purposes of this action only and reserves all objections in any other forum or proceeding. The remaining allegations are denied.

Paragraph 1.8: Admitted that venue lies in [COUNTY] County for purposes of this action only.

Factual Background

Paragraphs 2.1 through 2.8: Defendant lacks knowledge or information sufficient to form a belief as to the allegations regarding Plaintiff's purchase, use, injury, treatment, and discovery of the alleged defect, and therefore denies them. Defendant specifically denies any allegation that the Product was defective, that any defect existed at the time the Product left Defendant's control, or that any conduct of Defendant caused Plaintiff's injuries.

Count I — Strict Products Liability (Manufacturing Defect)

Paragraphs 3.1 through 3.6: Defendant incorporates its responses to Paragraphs 1.1 through 2.8 above. The remaining allegations are denied. Defendant specifically denies any manufacturing defect, that the Product was unreasonably dangerous, that the Product reached Plaintiff without substantial change, and that any act or omission of Defendant proximately caused Plaintiff's injuries.

Count II — Strict Products Liability (Design Defect)

Paragraphs 4.1 through 4.6: Defendant incorporates its responses above. The remaining allegations are denied. Defendant specifically denies any design defect, denies that any feasible safer alternative design existed at the time of manufacture, and denies that application of the multi-factor risk-utility analysis under Vautour v. Body Masters Sports Industries, Inc., 147 N.H. 150 (2001), would establish liability.

Count III — Strict Products Liability (Failure to Warn)

Paragraphs 5.1 through 5.6: Defendant incorporates its responses above. The remaining allegations are denied. Defendant specifically denies any inadequacy in the warnings, instructions, or labeling provided with the Product and denies that the alleged risk was knowable in the exercise of reasonable care at the time the Product was distributed.

Count IV — Negligence

Paragraphs 6.1 through 6.4: Defendant incorporates its responses above. The remaining allegations are denied.

Count V — Breach of Implied Warranty of Merchantability

Paragraphs 7.1 through 7.6: Defendant incorporates its responses above. The remaining allegations are denied. Defendant specifically denies that the Product was unmerchantable and denies that adequate notice of breach was provided pursuant to RSA 382-A:2-607(3)(a).

Count VI — Breach of Express Warranty

Paragraphs 8.1 through 8.4: Defendant incorporates its responses above. The remaining allegations are denied. Defendant denies that any actionable affirmation of fact or promise was made or formed part of the basis of the bargain.

Damages and Prayer for Relief

Paragraphs 9.1 through 9.3 and the Prayer for Relief: Denied. Plaintiff is entitled to no relief from Defendant.

4. AFFIRMATIVE DEFENSES

Without conceding that Defendant bears the burden of proof on any of the following, Defendant asserts the following affirmative and additional defenses:

First Affirmative Defense — Failure to State a Claim

The Complaint, in whole or in part, fails to state a claim upon which relief may be granted under New Hampshire law and should be dismissed pursuant to N.H. Super. Ct. R. 12(d).

Second Affirmative Defense — Statute of Limitations

Plaintiff's claims are barred, in whole or in part, by the three-year statute of limitations set forth in RSA 508:4. Plaintiff knew, or in the exercise of reasonable diligence should have known, of the alleged injury and its causal relationship to Defendant's conduct more than three years before the filing of the Complaint, and the discovery rule does not toll the limitation. Furbush v. McKittrick, 149 N.H. 426 (2003); Glines v. Bruk, 140 N.H. 180 (1995).

Third Affirmative Defense — UCC Statute of Limitations on Warranty Claims

To the extent Plaintiff asserts breach-of-warranty claims, those claims are barred by the four-year limitation in RSA 382-A:2-725, which begins to run upon tender of delivery of the Product.

Fourth Affirmative Defense — Comparative Fault

Plaintiff's recovery is barred or diminished by Plaintiff's own contributory or comparative fault under RSA 507:7-d. Plaintiff's fault, if any, was greater than the fault of Defendant (or the defendants in the aggregate), barring all recovery; in the alternative, Plaintiff's recovery must be diminished in proportion to the amount of fault attributed to Plaintiff.

Fifth Affirmative Defense — Apportionment Among Tortfeasors

Defendant is entitled to apportionment of fault among all responsible parties, including non-parties, settled parties, and unidentified parties, pursuant to RSA 507:7-e and DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793 (2006).

Sixth Affirmative Defense — Product Misuse / Unforeseeable Use

Plaintiff's injuries, if any, were caused by Plaintiff's misuse, abuse, abnormal use, or use of the Product for a purpose or in a manner not reasonably foreseeable by Defendant, defeating each of Plaintiff's theories.

Seventh Affirmative Defense — Post-Sale Alteration or Modification

Defendant is liable, if at all, only for harm that would have occurred if the Product had been used in its unaltered and unmodified condition. RSA 507-D:3. Any alteration, modification, repair, or maintenance failure occurring after the Product left Defendant's control bars or limits Plaintiff's recovery.

Eighth Affirmative Defense — State of the Art

The Product complied with the state of the art in design, manufacture, testing, warning, and labeling at the time it left Defendant's control. Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981) (applying New Hampshire law); Thibault v. Sears, Roebuck & Co., 118 N.H. 802 (1978). The risk Plaintiff alleges was not knowable in the exercise of reasonable care under the scientific, technological, and industry knowledge available at the relevant time.

Ninth Affirmative Defense — Compliance with Government Standards / Regulatory Compliance

The Product complied with all applicable federal, state, and industry standards in effect at the time of design, manufacture, and distribution, including but not limited to [CITE APPLICABLE STANDARDS — e.g., 16 C.F.R. Part [###], ANSI/UL [###], FDA [###]], defeating Plaintiff's claims of defect and unreasonable danger.

Tenth Affirmative Defense — Federal Preemption

Plaintiff's state-law claims are preempted, in whole or in part, by federal law, including [IDENTIFY APPLICABLE FEDERAL STATUTE OR REGULATION — e.g., 21 U.S.C. § 360k(a) (Medical Device Amendments); 49 U.S.C. § 30103(b) (Vehicle Safety Act); FIFRA; consumer-product safety regulations].

Eleventh Affirmative Defense — Learned Intermediary

To the extent the Product is a prescription drug, prescription medical device, or other product subject to professional intermediation, any duty to warn ran to the prescribing or installing professional and not to Plaintiff. The learned-intermediary doctrine bars Plaintiff's failure-to-warn claims. See Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981); Restatement (Third) of Torts: Products Liability § 6(d).

Twelfth Affirmative Defense — Sophisticated User / Bulk Supplier

Defendant owed no duty to warn Plaintiff because the Product was sold to a sophisticated user or bulk purchaser who had independent knowledge of the alleged risk and was responsible for warning end-users.

Thirteenth Affirmative Defense — Open and Obvious Danger

Any risk associated with the Product was open and obvious to a reasonable user, and no duty to warn arose.

Fourteenth Affirmative Defense — Assumption of the Risk

Plaintiff voluntarily and knowingly assumed any risk associated with the use of the Product and is barred or limited from recovery on that basis.

Fifteenth Affirmative Defense — Superseding / Intervening Cause

The acts or omissions of third parties or independent forces, not within Defendant's control, were the superseding and intervening cause of Plaintiff's injuries, breaking the chain of legal causation.

Sixteenth Affirmative Defense — No Defect

The Product was not defective in design, manufacture, or warning at the time it left Defendant's control, and was not unreasonably dangerous to a user using the Product in a foreseeable manner.

Seventeenth Affirmative Defense — No Causation

No act or omission of Defendant was the legal or proximate cause of Plaintiff's alleged injuries.

Eighteenth Affirmative Defense — Innocent Retailer / No Opportunity to Inspect

To the extent Defendant is alleged to be a non-manufacturing seller, Defendant received the Product in a sealed container or otherwise had no reasonable opportunity to inspect for the alleged defect, did not contribute to the design or manufacture, and is entitled to indemnity from the manufacturer; this status further informs the comparative-fault apportionment under RSA 507:7-e.

Nineteenth Affirmative Defense — Failure to Provide Notice (Warranty)

Plaintiff failed to provide timely notice of the alleged breach of warranty as required by RSA 382-A:2-607(3)(a), barring or limiting any warranty-based recovery.

Twentieth Affirmative Defense — Disclaimer / Limitation of Warranty / Limitation of Remedies

To the extent enforceable, Defendant disclaimed implied warranties and/or limited remedies in writing pursuant to RSA 382-A:2-316 and RSA 382-A:2-719, barring or limiting Plaintiff's warranty claims.

Twenty-First Affirmative Defense — No Privity

To the extent privity is required for any warranty claim, no privity exists between Plaintiff and Defendant.

Twenty-Second Affirmative Defense — No Punitive Damages

Punitive damages are not recoverable in New Hampshire. RSA 507:16. To the extent Plaintiff seeks "enhanced compensatory damages" under Vratsenes v. New Hampshire Auto, Inc., 112 N.H. 71 (1972), the Complaint fails to plead facts showing wanton, malicious, or oppressive conduct, and any such recovery is constitutionally constrained by due-process limits, including those set forth in State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003).

Twenty-Third Affirmative Defense — Set-Off / Collateral Source

Defendant is entitled to a set-off or reduction of any judgment in the amount of any payments received by Plaintiff from collateral sources, settling tortfeasors, insurance, workers' compensation, or government benefits, to the fullest extent permitted by RSA 507:7-i and applicable common law.

Twenty-Fourth Affirmative Defense — Spoliation

To the extent Plaintiff or any third party at Plaintiff's direction has lost, destroyed, modified, or failed to preserve the Product or other material evidence, Plaintiff's claims should be dismissed or limited and an appropriate adverse inference should issue.

Twenty-Fifth Affirmative Defense — Failure to Mitigate

Plaintiff failed to take reasonable steps to mitigate damages, including without limitation by [DESCRIBE FAILURE TO MITIGATE], barring or reducing recovery accordingly.

Twenty-Sixth Affirmative Defense — Statute of Repose (If Applicable)

To the extent the Product constitutes or is incorporated into an improvement to real property, Plaintiff's claims are barred by RSA 508:4-b (eight-year construction statute of repose). RSA 507-D:2 (twelve-year products repose) was held unconstitutional in Heath v. Sears, Roebuck & Co., 123 N.H. 512 (1983), and is not asserted here.

Twenty-Seventh Affirmative Defense — Reservation

Defendant reserves the right to assert additional affirmative and other defenses as discovery and investigation may reveal.

5. RESERVATION OF DEFENSES

Defendant reserves the right to amend this Answer to assert additional defenses, counterclaims, cross-claims, and third-party claims as discovery proceeds, consistent with N.H. Super. Ct. R. 9 and the Court's scheduling order.

6. JURY DEMAND

Defendant hereby demands a trial by jury on all issues so triable as a matter of right, pursuant to Part I, Article 20 of the New Hampshire Constitution and N.H. Super. Ct. R. 8.

7. PRAYER FOR RELIEF

WHEREFORE, Defendant [DEFENDANT NAME] respectfully requests that this Honorable Court:

• A. Dismiss the Complaint with prejudice;
• B. Enter judgment in favor of Defendant on all counts;
• C. Award Defendant its costs of suit, including reasonable attorney's fees where authorized by statute, contract, or rule (including N.H. Super. Ct. R. 12 and Harkeem v. Adams, 117 N.H. 687 (1977));
• D. Apportion fault among Plaintiff, Defendant, and any other responsible persons pursuant to RSA 507:7-d and 507:7-e in the event of any recovery; and
• E. Grant such other and further relief as the Court deems just and equitable.

8. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[DEFENDANT NAME]

By its attorneys,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], N.H. Bar No. [####]

Counsel for Defendant

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

9. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [_______________], 20[____], a true and correct copy of the foregoing ANSWER AND AFFIRMATIVE DEFENSES was served upon all counsel of record via the New Hampshire e-filing system and/or by first-class mail, postage prepaid, at the addresses listed below:

[SERVICE LIST WITH ADDRESSES]

[________________________________]

[ATTORNEY NAME]

10. NEW HAMPSHIRE PRACTICE NOTES

• Pleading affirmative defenses. N.H. Super. Ct. R. 9(d) requires affirmative defenses to be pleaded specifically. A general "preserves all defenses" reservation is insufficient — list each defense by short title with a one- or two-sentence factual or legal predicate. Failure to plead may result in waiver.
• Statute of limitations. RSA 508:4 imposes a three-year limitation with a two-prong discovery rule (knowledge of injury + knowledge of causal relationship). The defense bears the initial burden of pleading; the plaintiff bears the burden of proof on discovery-rule tolling once the running of the statute is established. Furbush, 149 N.H. at 431.
• Statute of repose — products. RSA 507-D:2 was struck down in Heath v. Sears (1983). Do not affirmatively rely on it as a bar without flagging the Heath holding; doing so risks a Rule 11 challenge and credibility loss.
• Statute of repose — improvements to real property. RSA 508:4-b imposes an eight-year repose from substantial completion of an improvement to real property. Available where the product is, e.g., HVAC, roofing, structural components, or fixtures. Verify applicability; courts are skeptical of expansive readings (see Yager v. Clauson, 166 N.H. 570 (2014); JD Supra, "NH's Statute of Repose Does Not Apply to Product Manufacturers").
• Comparative fault. RSA 507:7-d (51% bar). The trier of fact apportions fault between plaintiff and the defendants in the aggregate; multi-defendant cases require careful jury-instruction drafting.
• Apportionment / several liability. RSA 507:7-e provides several liability with re-allocation when a defendant's share is less than 50%. DeBenedetto allows apportionment of fault to non-parties for purposes of reducing the defendant's share; counsel should plead facts about non-party fault now to preserve the issue.
• State of the art. Admissible as a defense factor under Thibault and Brochu; not a complete bar in design or warning cases. Pair with FRE 702 / N.H. R. Evid. 702 expert testimony.
• No punitive damages. RSA 507:16. Frame any "Vratsenes" enhanced compensatory damages claim narrowly; due-process challenge available under State Farm v. Campbell if a punitive-style multiplier is applied.
• No statutory innocent-seller defense. New Hampshire is not on the list of innocent-seller-statute jurisdictions. Defendants in the chain of distribution may still be liable under § 402A; pursue cross-claims for indemnity from upstream manufacturers and frame the "no opportunity to inspect" facts as comparative-fault apportionment evidence.
• Federal preemption. Always evaluate. Express preemption under the Medical Device Amendments (21 U.S.C. § 360k(a); Riegel v. Medtronic, 552 U.S. 312 (2008)); implied preemption under Geier v. American Honda Motor Co., 529 U.S. 861 (2000); FIFRA preemption per Bates v. Dow Agrosciences, 544 U.S. 431 (2005).
• Cross-claims and third-party practice. Use N.H. Super. Ct. R. 9 / 13 and RSA 507:7-f (contribution among joint tortfeasors) to bring in upstream sellers and component manufacturers.
• Spoliation. Preserve and demand preservation of the Product immediately. Murray v. Developmental Services of Sullivan County, 149 N.H. 264 (2003), recognizes spoliation as basis for sanctions and adverse inference.

11. SOURCES AND REFERENCES

• New Hampshire General Court — RSA Chapter 507-D: https://gc.nh.gov/rsa/html/lii/507-D/507-D-mrg.htm
• RSA 507:7-d (Comparative Fault): https://gc.nh.gov/rsa/html/LII/507/507-7-d.htm
• RSA 507:7-e (Apportionment): https://www.gencourt.state.nh.us/rsa/html/lii/507/507-7-e.htm
• RSA 508:4 (Personal Actions): https://www.gencourt.state.nh.us/rsa/html/lii/508/508-4.htm
• RSA 508:4-b (Statute of Repose — Real Property Improvements): https://www.gencourt.state.nh.us/rsa/html/lii/508/508-4-b.htm
• RSA 507:16 (Punitive Damages Not Authorized): https://www.gencourt.state.nh.us/rsa/html/lii/507/507-16.htm
• RSA 382-A (UCC Article 2): https://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-XXXIX-382-A.htm
• Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36 (1969) — adoption of § 402A
• Thibault v. Sears, Roebuck & Co., 118 N.H. 802 (1978) — risk-utility framework, state of the art
• Vautour v. Body Masters Sports Industries, Inc., 147 N.H. 150 (2001) — alternative design relevant but not required
• Heath v. Sears, Roebuck & Co., 123 N.H. 512 (1983) — RSA 507-D:2 statute of repose unconstitutional
• Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981) — state of the art / learned intermediary
• Vratsenes v. New Hampshire Auto, Inc., 112 N.H. 71 (1972) — enhanced compensatory damages
• DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793 (2006) — apportionment to non-parties
• Furbush v. McKittrick, 149 N.H. 426 (2003) — discovery rule
• Glines v. Bruk, 140 N.H. 180 (1995) — discovery rule
• Yager v. Clauson, 166 N.H. 570 (2014) — RSA 508:4-b applicability
• Murray v. Developmental Services of Sullivan County, 149 N.H. 264 (2003) — spoliation
• Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) — express preemption (medical devices)
• Geier v. American Honda Motor Co., 529 U.S. 861 (2000) — implied preemption
• State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003) — punitive-damages due-process limits
• New Hampshire Judicial Branch — Superior Court Rules: https://www.courts.nh.gov/rules/scr/
• Restatement (Second) of Torts § 402A; Restatement (Third) of Torts: Products Liability §§ 1, 2, 6

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in New Hampshire must review and customize this document before filing. Statutes, rules, and case law change; verify all authorities before use.