DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY

STATE OF MAINE

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

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 pursuant to Maine law.

I. MAINE-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - Common Law Strict Liability

Maine products liability claims are governed by common law strict liability based on Section 402A of the Restatement (Second) of Torts, as adopted in Bernier v. Raymark Industries, Inc., 516 A.2d 534 (Me. 1986).

Key Elements for Strict Liability:
1. The defendant sold or supplied a product;
2. The product was in a defective condition unreasonably dangerous;
3. The defendant was engaged in the business of selling such products;
4. The product reached the user without substantial change in condition; and
5. The defective condition was a proximate cause of the plaintiff's injuries.

See Smith v. Bic Corp., 869 F.2d 194 (1st Cir. 1989) (applying Maine law).

B. Theories of Liability Recognized

Maine recognizes the following products liability theories:

1. Strict Liability:
Under Maine law adopting Section 402A, manufacturers and commercial sellers are strictly liable for injuries caused by products that are in a defective condition unreasonably dangerous. Bernier, 516 A.2d at 540.

2. Negligence:
Traditional negligence claims for negligent design, manufacture, inspection, or failure to warn. Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144 (Me. 1983).

3. Breach of Warranty:
Express and implied warranty claims under Maine's UCC, 11 M.R.S. Sections 2-313 through 2-315. Privity is not required for personal injury claims.

C. Defect Standards

Maine applies the following standards:

Consumer Expectations Test: The primary test in Maine. A product is defective if it fails to meet the safety expectations of an ordinary consumer with ordinary knowledge of the product. Bernier, 516 A.2d at 542.

Risk-Utility Test: May also be applied, particularly for complex products or design defects. Courts balance the product's utility against its risks.

D. Statute of Limitations

Under 14 M.R.S. Section 752, the statute of limitations for civil actions, including products liability claims, is six (6) years from the date the cause of action accrues.

Discovery Rule: Under 14 M.R.S. Section 752-C, for injuries that could not reasonably have been discovered at the time of the act or omission, the action may be commenced within 6 years of discovery.

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

E. Statute of Repose

Maine does not have a general products liability statute of repose. Claims may be brought regardless of when the product was manufactured, provided they fall within the statute of limitations.

F. Comparative Fault

MAINE FOLLOWS MODIFIED COMPARATIVE FAULT.

Under 14 M.R.S. Section 156, a plaintiff's recovery is reduced by their percentage of fault. Recovery is completely barred if the plaintiff's fault is equal to or greater than the combined fault of all defendants against whom recovery is sought (50% rule with equal bar).

• Comparative fault is an affirmative defense
• Product misuse may constitute comparative fault if unforeseeable
• The factfinder allocates fault among all parties

Our client was not comparatively at fault: [Describe why client bears no or minimal fault]

G. Joint and Several Liability

Maine has modified joint and several liability under 14 M.R.S. Section 156. When the plaintiff is not at fault:
- Each defendant is jointly and severally liable for all damages

When the plaintiff is at fault:
- Each defendant is severally liable only for their percentage of fault

H. Punitive Damages

Punitive damages are available in Maine under 14 M.R.S. Section 8105 upon proof by clear and convincing evidence of:
- Actual malice (ill will toward plaintiff, or conduct so outrageous that malice may be implied)

Important Limitations:
- Punitive damages are not insurable in Maine under 14 M.R.S. Section 8105
- This means the defendant corporation, not its insurer, must pay punitive awards

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 for the subject product
- [ ] Quality control records and inspection reports
- [ ] Testing data and results (pre-market and post-market)
- [ ] Safety assessments and risk analyses
- [ ] FMEA (Failure Mode and Effects Analysis) documents
- [ ] All versions of owner's manuals, instructions, warnings, and labels

Regulatory and Complaints:
- [ ] Communications with FDA, CPSC, NHTSA, or other regulatory agencies
- [ ] Consumer complaints involving this product
- [ ] Prior claims and lawsuits involving this product
- [ ] Recall notices and service bulletins

Maine courts impose sanctions for spoliation of evidence. Austin v. Consolidated Edison Co. of New York, 788 A.2d 192 (Me. 2002). Destruction of evidence may result in adverse inferences and other sanctions at trial.

III. THE DEFECTIVE PRODUCT

A. Product Identification

B. Chain of Distribution

IV. THE DEFECT

A. Nature of Defect - Design Defect

Under Maine law, a design defect exists when the product, as designed, fails to meet the safety expectations of the ordinary consumer or when the risks of the design outweigh its utility. Bernier v. Raymark Industries, Inc., 516 A.2d 534 (Me. 1986).

Consumer Expectations Test:
The ordinary consumer would expect that:
[Describe what consumer would expect]

The [Product Name] failed to meet these expectations because:
[Describe how product failed expectations]

The [Product Name] contains a design defect in that:
[Detailed description of design defect]

Alternative Safer Design:
A feasible alternative design existed that would have prevented this injury:
[Describe alternative design]

B. Nature of Defect - Manufacturing Defect

A manufacturing defect exists when the specific product departed from its intended design, making it more dangerous than intended. The product at issue:
[Describe manufacturing defect if applicable]

C. Nature of Defect - Failure to Warn

Under Maine law, a manufacturer has a duty to warn of known dangers and dangers that should have been known through reasonable testing. Roberts v. Rich Foods, Inc., 654 A.2d 1365 (Me. 1995).

Adequacy of Warnings:
A warning must be:
- Clear and understandable
- Convey the nature and extent of the danger
- Prominently displayed
- Adequate to inform the user how to avoid the danger

Sophisticated User/Learned Intermediary: Maine recognizes these doctrines in appropriate cases.

The warnings provided were inadequate because:
[Describe warning deficiencies]

V. THE INCIDENT

A. How the Injury Occurred

On [Date], at approximately [Time], our client was [describe what client was doing with the product]:

[Detailed narrative of the incident]

B. Foreseeable Use

Our client was using the product in a manner that was:
- [ ] Intended by the manufacturer
- [ ] Foreseeable by the manufacturer
- [ ] In accordance with provided instructions

C. No Comparative Fault

Our client exercised reasonable care at all times. Even if comparative fault is alleged, our client's conduct was less than 50% at fault, and therefore recovery is not barred under 14 M.R.S. Section 156.

VI. LIABILITY ANALYSIS

A. Strict Liability Under Section 402A

All elements of Maine strict liability are satisfied:

1. Defective Condition: The product contained a [design / manufacturing / warning] defect as described above.

2. Unreasonably Dangerous: The product failed to meet the safety expectations of an ordinary consumer.

3. Defect Existed When Product Left Defendant's Control: The defect was present at the time of sale.

4. Causation: The defect was a proximate cause of our client's injuries.

5. Damages: Our client has suffered substantial damages as detailed herein.

B. Negligence

Your company breached its duty of care by:

1. Negligent Design: Designing a product with an unreasonably dangerous characteristic when safer alternatives existed.

2. Negligent Manufacture: Failing to implement adequate quality control procedures.

3. Negligent Failure to Warn: Failing to provide adequate warnings of known dangers.

C. Breach of Warranty

Express Warranty (11 M.R.S. Section 2-313):
Your company expressly warranted that [describe warranty]. This warranty was breached.

Implied Warranty of Merchantability (11 M.R.S. Section 2-314):
The product was not fit for its ordinary purpose due to the defect.

VII. PRIOR KNOWLEDGE OF DEFECT

Evidence of your company's prior knowledge of this defect includes:
- [ ] [Number] prior complaints regarding this defect
- [ ] [Number] prior injuries from this defect
- [ ] Recall or service bulletins issued
- [ ] Internal documents acknowledging the defect

Such prior knowledge supports an award of punitive damages for actual malice under 14 M.R.S. Section 8105.

VIII. INJURIES AND DAMAGES

A. Injuries Sustained

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

Physical Injuries:
- [ ] [Injury 1]
- [ ] [Injury 2]
- [ ] [Injury 3]

Surgeries and Procedures:
- [ ] [Surgery 1]
- [ ] [Surgery 2]

Permanent Conditions:
- [ ] [Permanent condition 1]
- [ ] [Permanent condition 2]

B. Medical Expenses

Future Medical Expenses: $[Amount]

C. Lost Wages and Earning Capacity

D. Non-Economic Damages

• Physical pain and suffering
• Emotional distress
• Disfigurement
• Loss of enjoyment of life
• Inconvenience

E. Summary of Damages

F. Punitive Damages

Your company's conduct warrants punitive damages under 14 M.R.S. Section 8105. Your company knew of the defect and acted with actual malice or conduct so outrageous that malice may be implied.

IX. SETTLEMENT DEMAND

Based upon the clear liability of your company under Maine law and the severe injuries suffered by our client, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for forty-five (45) days from the date of this letter, expiring at 5:00 p.m. Eastern Time on [Expiration Date].

X. CONCLUSION

This case involves a defective product that caused serious injuries to our client. Your company is strictly liable under Maine law. Our client was not comparatively negligent, or was less than 50% at fault, thus preserving the right to recovery.

If this matter cannot be resolved, we are prepared to file suit in the Superior Court, [County] County, State of Maine, and to pursue this matter through trial.

Please contact me at your earliest convenience.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Maine Board of Overseers Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

MAINE PRODUCTS LIABILITY PRACTICE NOTES

• [ ] Long Statute of Limitations: Maine has a generous SIX (6) year statute of limitations for products liability claims.

• [ ] Modified Comparative Fault: Maine follows the "50% bar with equal bar" rule - plaintiff recovery is barred if fault is equal to or greater than the combined fault of defendants.

• [ ] Punitive Damages Not Insurable: Punitive damages under Maine law are not covered by insurance (14 M.R.S. Section 8105), meaning the defendant must pay directly.

• [ ] Consumer Expectations Test: Maine primarily uses the consumer expectations test for determining defectiveness.

• [ ] Expert Testimony: Required to establish defect and causation in most cases. Maine follows Daubert standard under M.R. Evid. 702.

• [ ] No Statute of Repose: Maine does not have a general products liability statute of repose.

• [ ] Venue: Superior Court in county where defendant resides or where cause of action arose. 14 M.R.S. Section 501.

• [ ] Economic Loss Rule: Maine recognizes the economic loss doctrine - purely economic losses without physical injury are generally not recoverable in tort. Oceanside at Pine Point Condo. Owners Ass'n v. Peachtree Doors, Inc., 659 A.2d 267 (Me. 1995).

• [ ] Seat Belt Evidence: Evidence of nonuse of seat belts is admissible to reduce damages. 29-A M.R.S. Section 2081.

• [ ] Pre-Litigation Requirements: Consider whether any pre-suit notice requirements apply to specific defendants.

Maine products liability law is complex. This template must be reviewed and customized by a licensed Maine attorney before use.