DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY

COMMONWEALTH OF MASSACHUSETTS

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Massachusetts ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the Commonwealth of Massachusetts

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[General Counsel / Risk Management / Claims Representative]
[Manufacturer / Distributor / Retailer Name]
[Street Address]
[City, State ZIP]

RE: PRODUCTS LIABILITY CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date of Incident: [Date]
Product: [Product Name, Model Number, Serial Number]
Manufacturer: [Manufacturer Name]
Purchase Date/Location: [Date / Retailer Name]
Claim Number: [If assigned]

Dear [Recipient Name]:

This firm represents [Client Name] in connection with serious personal injuries caused by a defective [Product Name] designed, manufactured, distributed, and/or sold by your company. This letter constitutes our formal demand for settlement under Massachusetts law.

I. MASSACHUSETTS-SPECIFIC LEGAL FRAMEWORK

A. Products Liability Theories Recognized

Massachusetts recognizes the following theories of products liability:

1. Implied Warranty of Merchantability (M.G.L. c. 106, Section 2-314)

Massachusetts has not adopted strict liability under Restatement Section 402A for products liability claims. Instead, Massachusetts relies primarily on warranty theory under the Uniform Commercial Code. Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (1978).

Under M.G.L. c. 106, Section 2-314, goods must be merchantable and "fit for the ordinary purposes for which such goods are used." A defective product that causes injury breaches this implied warranty.

Importantly, M.G.L. c. 106, Section 2-318 extends warranty protection to any person who may reasonably be expected to use, consume, or be affected by the goods - eliminating the traditional privity requirement.

2. Negligence

Traditional negligence claims are available against manufacturers for design defects, manufacturing defects, and failure to warn. Uloth v. City Tank Corp., 376 Mass. 874, 384 N.E.2d 1188 (1978).

3. Express Warranty

M.G.L. c. 106, Section 2-313 provides for breach of express warranty claims.

4. Chapter 93A - Consumer Protection

M.G.L. c. 93A provides for recovery of multiple damages (up to treble damages) for unfair or deceptive trade practices, including selling defective products.

B. Design Defect Standard

Massachusetts applies a risk-utility balancing test for design defect claims. Under Back v. Wickes Corp., 375 Mass. 633 (1978), courts consider:

1. The gravity of the danger posed by the challenged design
2. The likelihood that such danger would occur
3. The mechanical feasibility of a safer alternative design
4. The financial cost of an improved design
5. The adverse consequences to the product and to the consumer that would result from an alternative design

This analysis also considers whether the product meets the reasonable expectations of the ordinary consumer.

C. Statute of Limitations

Under M.G.L. c. 260, Section 2A, the statute of limitations for personal injury claims, including products liability, is three (3) years from the date of injury.

The discovery rule applies: the limitations period is tolled until the plaintiff knew or reasonably should have known of the injury and its cause. Bowen v. Eli Lilly & Co., 408 Mass. 204, 557 N.E.2d 739 (1990).

This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

D. Statute of Repose

Massachusetts does not have a general statute of repose for products liability claims. However, M.G.L. c. 260, Section 2B provides a six-year statute of repose for claims arising from improvements to real property.

E. Comparative Negligence

Massachusetts follows modified comparative negligence under M.G.L. c. 231, Section 85. A plaintiff's recovery is reduced by their percentage of fault, and recovery is barred if the plaintiff is more than 50% at fault.

Our client bears no responsibility for this incident. Our client:
- Used the product for its intended purpose
- Followed all instructions and warnings
- Acted as a reasonable consumer would

F. Punitive Damages

Massachusetts generally does not allow punitive damages in tort actions. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

However, M.G.L. c. 93A (Consumer Protection Act) provides for multiple damages:
- Up to double damages for willful violations
- Up to treble damages if the defendant knew or should have known the conduct was unfair or deceptive

G. Joint and Several Liability

Massachusetts has modified joint and several liability under M.G.L. c. 231B. Defendants are jointly and severally liable for the entire judgment, but contribution is available among joint tortfeasors.

II. PRESERVATION OF EVIDENCE - SPOLIATION WARNING

YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this product and claim, including but not limited to:

Product-Related:
- The subject product and all component parts
- All exemplar products of the same make and model
- Design documents, specifications, and engineering drawings
- Manufacturing records and quality control documents
- Testing data and safety assessments
- FMEA (Failure Mode and Effects Analysis) documents
- Owner's manuals, instructions, warnings, and labels
- Marketing and advertising materials

Complaints and Claims:
- Consumer complaints involving this product or similar products
- Prior claims and lawsuits involving this product
- Regulatory correspondence (CPSC, FDA, NHTSA)
- Recall notices and service bulletins

Massachusetts courts recognize spoliation sanctions. Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 786 N.E.2d 824 (2003). Destruction of evidence may result in adverse inferences and other sanctions.

III. THE DEFECTIVE PRODUCT

A. Product Identification

B. Chain of Distribution

The following entities are in the chain of distribution and may bear liability under Massachusetts law:

C. Product Description

[Describe the product, its intended use, and relevant safety considerations]

IV. THE DEFECT

A. Nature of Defect

[SELECT AND CUSTOMIZE APPLICABLE THEORY:]

DESIGN DEFECT:

The [Product Name] contains a design defect that renders it not merchantable and unreasonably dangerous. Applying Massachusetts's risk-utility test under Back v. Wickes Corp.:

1. Gravity of danger: [Describe severity of potential harm]
2. Likelihood of occurrence: [Describe probability]
3. Feasibility of alternative: A safer design was feasible: [Describe]
4. Cost of improved design: The alternative design would have added minimal cost
5. Adverse consequences: The alternative would not have impaired product utility

MANUFACTURING DEFECT:

The specific [Product Name] involved departed from its intended design due to a manufacturing defect:

[Detailed description of manufacturing defect]

FAILURE TO WARN:

The manufacturer failed to provide adequate warnings regarding known risks:

[Describe inadequate warnings and what adequate warnings should have stated]

V. THE INCIDENT

A. How the Injury Occurred

On [Date], at approximately [Time], our client was using the [Product Name] for its intended purpose when [describe what happened].

[Detailed narrative of the incident]

B. Foreseeable Use

Our client was using the product:
- For its intended purpose
- In accordance with provided instructions
- In a manner consistent with product marketing
- As a reasonable consumer would

C. Causation

The defect was the direct and proximate cause of our client's injuries. The injuries would not have occurred but for the defect.

VI. LIABILITY ANALYSIS

A. Breach of Implied Warranty of Merchantability

Under M.G.L. c. 106, Section 2-314, and Back v. Wickes Corp., your company is liable because:

1. The product was sold in the ordinary course of business
2. The product was not merchantable - it was not fit for its ordinary purpose
3. The defect existed when the product left your control
4. The defect caused our client's injuries
5. Our client is within the class protected by M.G.L. c. 106, Section 2-318

B. Negligence

Your company was negligent in:
- Designing a product with an unreasonable risk of harm
- Failing to adequately test the product
- Failing to provide adequate warnings
- Failing to implement adequate quality control

Under Uloth v. City Tank Corp., 376 Mass. 874 (1978), manufacturers have a duty to exercise reasonable care in designing products to protect against foreseeable risks.

C. Chapter 93A Violation

The sale of a defective product constitutes an unfair or deceptive trade practice under M.G.L. c. 93A, Section 2. Our client is entitled to multiple damages for this violation.

D. Comparative Fault

Our client exercised all reasonable care and bears no percentage of fault for this incident. Under M.G.L. c. 231, Section 85, your company cannot establish comparative negligence.

VII. INJURIES AND DAMAGES

A. Physical Injuries

As a direct and proximate result of the defective product, our client sustained:

[List specific injuries with diagnoses]

B. Medical Treatment

Emergency Treatment:
- Date: [Date]
- Facility: [Hospital Name]
- Treatment: [Description]

Subsequent Treatment:
[Detail all treatment received]

C. Medical Expenses

Future Medical Expenses: $[Amount]

D. Lost Wages

E. Non-Economic Damages

[Describe pain and suffering, emotional distress, loss of enjoyment of life]

Massachusetts does not cap non-economic damages in products liability cases.

F. Summary of Damages

G. Chapter 93A Multiple Damages

Under M.G.L. c. 93A, our client is entitled to multiple damages:
- Double or treble damages for willful or knowing violations
- Reasonable attorneys' fees and costs

VIII. SETTLEMENT DEMAND

Based upon the clear liability and substantial damages, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for forty-five (45) days from the date of this letter, expiring on [Expiration Date].

Chapter 93A Demand Notice

This letter also serves as a demand letter under M.G.L. c. 93A, Section 9(3). You are required to respond within thirty (30) days with a reasonable settlement offer. Failure to do so may result in multiple damages and attorneys' fees.

IX. DOCUMENTATION ENCLOSED

• Medical records and bills
• Photographs of the product and defect
• Photographs of injuries
• Employment and wage documentation
• Expert reports (if available)
• Product documentation and warnings
• [Other relevant documentation]

X. CONCLUSION

This case involves a defective product that caused serious injuries to our client. Liability is clear under Massachusetts warranty and negligence law, and damages are substantial. We urge you to evaluate this claim seriously and respond with a fair settlement offer.

If this matter cannot be resolved, we are prepared to file suit in the Superior Court of the Commonwealth of Massachusetts and pursue this matter through trial.

Please contact me at your earliest convenience.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
BBO Number: [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

MASSACHUSETTS-SPECIFIC PRACTICE NOTES

Warranty Theory: Massachusetts uses warranty rather than strict liability Section 402A. This affects pleading and proof requirements.

Privity Not Required: M.G.L. c. 106, Section 2-318 extends warranty protection beyond the purchaser to any person reasonably expected to use or be affected by the goods.

Chapter 93A: Always include Chapter 93A claim for potential multiple damages and attorneys' fees. The 30-day demand letter requirement is jurisdictional.

Design Defect Test: Risk-utility balancing is the primary test, but consumer expectations are also considered.

Expert Testimony: Generally required to establish defect and causation in complex products cases.

Comparative Negligence: 51% bar rule - plaintiff cannot recover if more than 50% at fault.

No Punitive Damages: Massachusetts does not allow punitive damages in tort, but Chapter 93A provides multiple damages as an alternative.