DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY

STATE OF NEW YORK

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

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 York products liability law.

I. NEW YORK PRODUCTS LIABILITY LEGAL FRAMEWORK

A. Governing Law

New York products liability claims are governed by common law principles established through judicial decisions. New York has adopted strict products liability based on Restatement (Second) of Torts Section 402A. Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461 (1973).

B. Statute of Limitations

Under N.Y. CPLR Section 214(5), the statute of limitations for personal injury claims, including products liability, is three (3) years from the date of injury. This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

New York applies the discovery rule in certain products liability cases, particularly those involving latent injuries or unknown defects. Blanco v. American Tel. & Tel. Co., 90 N.Y.2d 757, 666 N.Y.S.2d 536 (1997).

C. Statute of Repose

New York does not have a general statute of repose for products liability claims. However, CPLR Section 214-d provides a 10-year statute of repose for claims involving building materials that cause injury after the material is substantially altered.

D. Theories of Liability Under New York Law

New York recognizes the following theories of products liability:

1. Strict Products Liability:

Under Codling v. Paglia, 32 N.Y.2d 330 (1973), a manufacturer is strictly liable for harm caused by a defective product without proof of negligence. The plaintiff must prove:
- The product was defective
- The defect existed when the product left the defendant's control
- The defect was the proximate cause of plaintiff's injuries

2. Manufacturing Defect:

A manufacturing defect exists when the specific product deviates from the intended design, making it more dangerous than expected. The product is compared against the manufacturer's own design specifications. Caprara v. Chrysler Corp., 52 N.Y.2d 114, 436 N.Y.S.2d 251 (1981).

3. Design Defect:

New York applies a risk-utility test for design defect claims. A product is defectively designed if it is not reasonably safe and the risk of danger inherent in the product's design outweighs its utility. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398 (1983).

The risk-utility factors include:
- The product's utility and its benefits to the user and society
- The likelihood that the product will cause injury
- The availability of a safer design
- The potential for designing and manufacturing the product so that it is safer but remains functional
- The user's ability to avoid danger through care in use
- The user's anticipated awareness of inherent danger
- The feasibility of the manufacturer spreading the cost of design improvements

Important: New York does not use the consumer expectation test for design defects. Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250 (1995).

4. Failure to Warn:

A product may be defective due to inadequate warnings or instructions. Under New York law, a manufacturer has a duty to warn users of known and reasonably foreseeable dangers associated with the product's use. Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764 (1998).

The adequacy of a warning is judged by whether it reasonably conveys the nature and extent of the danger. The warning must be specific enough to alert users to the risk.

5. Negligence:

New York recognizes negligence claims against manufacturers and sellers, including:
- Negligent design
- Negligent manufacture
- Negligent testing and inspection
- Negligent failure to warn

6. Breach of Warranty:

New York recognizes claims for breach of express warranty, implied warranty of merchantability (N.Y. U.C.C. Section 2-314), and implied warranty of fitness for a particular purpose (N.Y. U.C.C. Section 2-315).

Importantly, Denny v. Ford Motor Co., 87 N.Y.2d 248 (1995), held that breach of implied warranty and strict liability design defect claims are distinct and may yield different results, as warranty claims utilize the consumer expectation test while strict liability uses risk-utility.

E. Comparative Fault

New York follows pure comparative negligence under N.Y. CPLR Section 1411. A plaintiff's recovery is reduced by their percentage of fault, but recovery is never barred regardless of the degree of fault.

Our client bears no responsibility for this incident and was using the product in a reasonably foreseeable manner.

F. Punitive Damages

Punitive damages are available in New York products liability cases where the plaintiff proves by clear and convincing evidence that the defendant's conduct was wanton and reckless, showing "such an utter disregard of the rights of others that it amounts to wilful and intentional mischief." Prozeralik v. Capital Cities Commc'ns, Inc., 82 N.Y.2d 466, 605 N.Y.S.2d 218 (1993).

New York does not have a statutory cap on punitive damages. However, punitive damages must be proportional to the reprehensibility of the defendant's conduct.

II. PRESERVATION OF EVIDENCE - CRITICAL NOTICE

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
- Design documents, specifications, and engineering drawings
- Manufacturing records and quality control data
- Testing data and safety assessments
- All versions of warnings, labels, and instructions
- Marketing and advertising materials

Regulatory and Compliance:
- Communications with CPSC, FDA, or other regulatory agencies
- Recall notices and service bulletins
- Adverse event reports and consumer complaints

Claims History:
- Prior claims and lawsuits involving this product
- Prior complaints regarding similar defects

New York courts may impose spoliation sanctions, including adverse inference instructions. Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P., 91 N.Y.2d 406, 671 N.Y.S.2d 415 (1998). Intentional or negligent destruction of evidence may result in severe consequences.

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 New York law:

IV. THE DEFECT

A. Nature of Defect

[DESIGN DEFECT / MANUFACTURING DEFECT / FAILURE TO WARN - Select applicable]

[Detailed description of the defect]:

The [Product Name] is defective because [describe specific defect]. This defect rendered the product not reasonably safe under New York's risk-utility analysis.

Risk-Utility Analysis (For Design Defects):

Under the risk-utility test established in Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (1983), this design is defective because:

• Utility vs. Risk: The risk of [describe danger] substantially outweighs the product's utility
• Safer Alternative: A feasible alternative design existed that would have prevented injury
• Feasibility: The alternative design was technologically and economically feasible
• User Awareness: The danger was not obvious to users exercising reasonable care
• Risk Spreading: The cost of safer design could be absorbed and spread through pricing

B. Alternative Safer Design

A feasible alternative design existed at the time of manufacture:

[Describe the alternative safer design that would have prevented injury]

This alternative design was:
- Technologically feasible
- Economically feasible
- Used by competitors or in subsequent models
- Would have prevented our client's injury

V. THE INCIDENT

A. How the Injury Occurred

On [Date], at approximately [Time], our client was [describe activity]:

[Detailed narrative of the incident]

B. Foreseeable Use

Our client was using the product in a manner that was intended or reasonably foreseeable by the manufacturer. Under New York law, manufacturers are responsible for foreseeable uses and misuses.

C. Causation

The defect in the [Product Name] was the proximate cause of our client's injuries. Under New York law, the plaintiff must demonstrate that the defect was a substantial factor in causing the injury.

VI. PRIOR KNOWLEDGE OF DEFECT

[If applicable - strengthens claim and supports punitive damages]

Your company knew or should have known of this defect prior to our client's injury:

• [Number] prior complaints regarding this defect
• [Number] prior injuries caused by this defect
• [Recall or service bulletin information]
• [Regulatory correspondence]
• Internal documents acknowledging the defect

This prior knowledge demonstrates the wanton and reckless disregard for consumer safety required for punitive damages in New York.

VII. INJURIES AND DAMAGES

A. Injuries Sustained

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

• [Injury 1]
• [Injury 2]
• [Injury 3]
• [Permanent conditions, if any]

B. Medical Treatment

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

Surgical Treatment:
- Date(s): [Dates]
- Procedures: [Description]

Ongoing Treatment:
- [Current treatment needs]

C. Damages Summary

D. Punitive Damages

[If applicable:]

Your company's conduct demonstrates wanton and reckless disregard for consumer safety, warranting punitive damages under New York law. Prozeralik v. Capital Cities Commc'ns, Inc., 82 N.Y.2d 466 (1993). We reserve the right to seek substantial punitive damages at trial.

VIII. SETTLEMENT DEMAND

A. Demand Amount

Based upon the clear liability under New York products liability law, the severity of our client's injuries, and the substantial damages incurred, we hereby demand:

$[DEMAND AMOUNT]

B. Time for Response

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 defective product
• Photographs of injuries
• Employment and wage records
• Expert reports (if available)
• Recall notices or safety bulletins (if applicable)
• [Other relevant documentation]

X. CONCLUSION

This case involves a defective product that caused serious injuries to an innocent consumer using the product in a foreseeable manner. Under New York's strict products liability law, your company is liable for these injuries.

We urge you to evaluate this claim seriously and respond with a reasonable settlement offer. If this matter cannot be resolved, we are prepared to file suit in the Supreme Court of the State of New York and pursue this matter through trial.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
New York State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
[Co-Counsel, if any]
File

NEW YORK PRODUCTS LIABILITY PRACTICE NOTES

• Risk-Utility Test Only: New York uses risk-utility, not consumer expectation, for strict liability design defect claims. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (1983).

• Warranty vs. Strict Liability: Implied warranty claims use consumer expectation; strict liability uses risk-utility. Both can be pled. Denny v. Ford Motor Co., 87 N.Y.2d 248 (1995).

• Pure Comparative Negligence: Recovery reduced but not barred by plaintiff's fault. CPLR Section 1411.

• Joint and Several Liability: New York retains joint and several liability for non-economic damages. CPLR Article 16 limits joint liability for non-economic damages for defendants less than 50% at fault.

• No Damage Caps: No statutory caps on compensatory or punitive damages in products liability.

• Certificate of Merit: Not required for products liability cases (unlike medical malpractice).

• Learned Intermediary Doctrine: Applies to prescription drugs and medical devices.

• Government Contractor Defense: Available under federal law. Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

• Venue: CPLR Section 503 - county where any party resides or where cause of action arose.

• Note of Issue: Must be filed within 12 months of RJI filing or case may be dismissed.