DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF NEW HAMPSHIRE
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, New Hampshire ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of New Hampshire
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 New Hampshire law.
I. NEW HAMPSHIRE-SPECIFIC LEGAL FRAMEWORK
A. Products Liability Theories Recognized
New Hampshire recognizes the following theories of products liability:
1. Strict Liability (Restatement (Second) of Torts Section 402A)
New Hampshire adopted strict products liability in Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36, 260 A.2d 111 (1969). Under New Hampshire law, a seller of a product in a defective condition unreasonably dangerous to the user is strictly liable for harm caused by the defect.
2. Negligence
Traditional negligence claims are available for design defects, manufacturing defects, and failure to warn. Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978).
3. Breach of Warranty
Express and implied warranties under the New Hampshire Uniform Commercial Code (N.H. Rev. Stat. Ann. Sections 382-A:2-313 through 382-A:2-315) provide additional bases for recovery.
B. Design Defect Standard
New Hampshire applies a consumer expectation test as the primary standard for design defect cases. Under Thibault, a product is defective if it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."
New Hampshire courts have also considered risk-utility factors in evaluating design defects. Cheshire Med. Ctr. v. W.R. Grace & Co., 49 F.3d 26 (1st Cir. 1995) (applying New Hampshire law).
C. Statute of Limitations
Under N.H. Rev. Stat. Ann. Section 508:4, the statute of limitations for personal injury claims, including products liability, is three (3) years from the date of injury.
The discovery rule may toll the limitations period until the plaintiff knew or should have known of the injury and its cause.
This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].
D. Statute of Repose
Under N.H. Rev. Stat. Ann. Section 507-D:2, New Hampshire has a twelve (12) year statute of repose. No products liability claim may be brought more than twelve years after the manufacturer parted with possession and control of the product, or more than twelve years after the product was sold by the original seller to an initial user or consumer.
Exceptions: The statute of repose does not apply if:
- The manufacturer expressly warranted the product for a longer period
- The claim is based on fraudulent concealment
E. Comparative Negligence
New Hampshire follows modified comparative fault under N.H. Rev. Stat. Ann. Section 507:7-d. A plaintiff's recovery is reduced by their percentage of fault, and recovery is barred if the plaintiff is 51% or more 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
Under N.H. Rev. Stat. Ann. Section 507:16, punitive damages (called "enhanced compensatory damages" in New Hampshire) are available upon proof by clear and convincing evidence that:
- The defendant's conduct was malicious, or
- The defendant's conduct was in wanton and reckless disregard of the plaintiff's rights
Enhanced damages may be awarded in an amount up to three times the compensatory damages.
G. Joint and Several Liability
Under N.H. Rev. Stat. Ann. Section 507:7-e, New Hampshire has abolished joint and several liability. Each defendant is severally liable only for their proportionate share of fault.
H. Seller Liability
Under N.H. Rev. Stat. Ann. Section 507-D:4, a product seller (other than the manufacturer) is not liable in a products liability action unless:
- The seller was also the manufacturer
- The manufacturer is insolvent or not subject to jurisdiction
- The seller made express warranties about the product
- The seller exercised substantial control over design, testing, or manufacturing
- The seller altered or modified the product
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
New Hampshire courts recognize spoliation sanctions. Destruction of evidence may result in adverse inferences and other sanctions.
III. THE DEFECTIVE PRODUCT
A. Product Identification
| Product Information | Details |
|---|---|
| Product Name | [Full Product Name] |
| Manufacturer | [Manufacturer Name and Address] |
| Model Number | [Model Number] |
| Serial Number | [Serial Number] |
| Date of Manufacture | [Date, if known] |
| Lot/Batch Number | [If known] |
| Date of Purchase | [Purchase Date] |
| Retailer/Seller | [Retailer Name and Location] |
| Purchase Price | $[Amount] |
Statute of Repose Verification: The product was sold to the initial user on [Date], which is within the twelve-year statute of repose period.
B. Chain of Distribution
The following entities are in the chain of distribution and may bear liability under New Hampshire law:
| Entity | Role |
|---|---|
| [Manufacturer Name] | Manufacturer |
| [Component Supplier] | Component Manufacturer |
| [Distributor Name] | Distributor |
| [Retailer Name] | Retailer/Seller |
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 unreasonably dangerous under New Hampshire's consumer expectation test. The product was more dangerous than an ordinary consumer would expect when using it in its intended manner.
[Detailed description of design defect]
A feasible alternative design existed that would have prevented the injury:
[Describe alternative design]
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. Strict Liability
Under Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36 (1969), your company is strictly liable because:
- The product was in a defective condition when it left your control
- The defect made the product unreasonably dangerous
- The defect caused our client's injuries
- Our client suffered damages
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
C. Breach of Warranty
The product breached:
- Express Warranty: [Describe any express warranties]
- Implied Warranty of Merchantability: N.H. Rev. Stat. Ann. Section 382-A:2-314
- Implied Warranty of Fitness: N.H. Rev. Stat. Ann. Section 382-A:2-315
D. Comparative Fault
Our client exercised all reasonable care and bears no percentage of fault for this incident. Under N.H. Rev. Stat. Ann. Section 507:7-d, your company cannot establish comparative fault.
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
| Provider | Service | Amount |
|---|---|---|
| [Provider] | [Service] | $[Amount] |
| TOTAL PAST MEDICAL | $[Total] |
Future Medical Expenses: $[Amount]
D. Lost Wages
| Category | Amount |
|---|---|
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL | $[Total] |
E. Non-Economic Damages
[Describe pain and suffering, emotional distress, loss of enjoyment of life]
New Hampshire does not cap non-economic damages in products liability cases.
F. Summary of Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earnings | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Subtotal] |
| Pain and Suffering | $[Amount] |
| Emotional Distress | $[Amount] |
| Loss of Enjoyment of Life | $[Amount] |
| TOTAL NON-ECONOMIC | $[Subtotal] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
G. Enhanced Compensatory Damages
[If applicable:]
Your company's conduct demonstrates malice or wanton and reckless disregard for safety warranting enhanced compensatory damages under N.H. Rev. Stat. Ann. Section 507:16:
[Describe conduct supporting enhanced damages by clear and convincing evidence]
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].
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 New Hampshire products liability 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 [County], New Hampshire, and pursue this matter through trial.
Please contact me at your earliest convenience.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
New Hampshire Bar No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
File
NEW HAMPSHIRE-SPECIFIC PRACTICE NOTES
Twelve-Year Statute of Repose: Critical to verify product was sold to initial user within twelve years. Document date of original sale.
Comparative Negligence: 51% bar rule - plaintiff cannot recover if 51% or more at fault.
Consumer Expectation Test: Primary test for design defects, with risk-utility factors also considered.
Enhanced Compensatory Damages: New Hampshire's version of punitive damages - capped at 3x compensatory damages. Require clear and convincing evidence of malice or wanton and reckless disregard.
Several Liability Only: New Hampshire has abolished joint and several liability - each defendant liable only for their percentage of fault.
Seller Liability Limitations: Non-manufacturer sellers have significant protections under N.H. Rev. Stat. Ann. Section 507-D:4.
Expert Testimony: Required to establish defect and causation in most cases.
Conservative Jurisdiction: New Hampshire juries tend to be conservative; set realistic damage expectations.
Federal Court: New Hampshire is in the First Circuit; federal court may be strategic alternative for diversity cases.