DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF TEXAS
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Texas ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Texas
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]
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 Texas law.
I. TEXAS PRODUCTS LIABILITY LEGAL FRAMEWORK
A. Statutory Framework
Products liability claims in Texas are governed by Chapter 82 of the Texas Civil Practice and Remedies Code (Products Liability) and common law principles. Texas recognizes strict liability, negligence, and breach of warranty theories.
B. Theories of Liability
1. Strict Products Liability
Texas adopted Section 402A of the Restatement (Second) of Torts in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex. 1967). Under strict liability, a manufacturer or seller is liable if:
- The product was defective when it left the defendant's control
- The defect rendered the product unreasonably dangerous
- The defect caused the plaintiff's injury
2. Negligence
A manufacturer has a duty to exercise reasonable care in design, manufacture, testing, and warnings. Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995).
3. Breach of Warranty
Texas recognizes claims for breach of express warranty (Tex. Bus. & Com. Code Section 2.313), implied warranty of merchantability (Section 2.314), and implied warranty of fitness (Section 2.315).
C. Statute of Limitations
Under Tex. Civ. Prac. & Rem. Code Section 16.003, the statute of limitations for personal injury products liability claims is two (2) years from the date of injury. The discovery rule may toll the limitations period where the injury was inherently undiscoverable. HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998).
D. Statute of Repose
Under Tex. Civ. Prac. & Rem. Code Section 16.012, a fifteen (15) year statute of repose applies to products liability claims. No action may be brought more than 15 years after the date of the sale of the product by the defendant, unless:
- The manufacturer expressly warranted the product for a longer period
- The action is based on toxic exposure with a latency period exceeding 15 years
E. Design Defect Test
Texas applies a risk-utility balancing test for design defects, as articulated in Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995). Factors considered include:
- The utility of the product
- The likelihood and severity of danger
- The availability of a substitute that would meet the same need
- The manufacturer's ability to eliminate danger without impairing usefulness
- The user's ability to avoid danger through care
- The user's anticipated awareness of danger
- The feasibility of spreading loss through price or insurance
The consumer expectations test may also apply in cases involving simple products where ordinary consumers have reasonable expectations. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009).
F. Proportionate Responsibility (Comparative Fault)
Texas follows modified comparative responsibility under Tex. Civ. Prac. & Rem. Code Section 33.001. A claimant's recovery is reduced by their percentage of responsibility. If the claimant is more than 50% responsible, recovery is completely barred.
Under Section 33.011, proportionate responsibility applies to strict liability claims.
G. Seller Liability Limitations
Under Tex. Civ. Prac. & Rem. Code Section 82.003, a seller (as opposed to manufacturer) is generally not liable unless:
- The seller participated in the design
- The seller altered or modified the product
- The seller made an independent express warranty
- The seller had actual knowledge of the defect
- The manufacturer is insolvent or not subject to jurisdiction
H. Punitive Damages
Under Tex. Civ. Prac. & Rem. Code Section 41.003, punitive (exemplary) damages require clear and convincing evidence of:
- Fraud
- Malice (specific intent to cause substantial injury or harm)
- Gross negligence (subjective awareness of extreme risk and conscious indifference)
Statutory Cap (Section 41.008): Punitive damages may not exceed the greater of:
- $200,000; or
- Two (2) times economic damages plus non-economic damages up to $750,000
No cap applies for certain felonies or intentional torts.
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 documentation
- Testing data and safety assessments
- All versions of warnings, labels, and instructions
Complaints and Claims:
- Prior consumer complaints regarding this product
- Prior claims and lawsuits involving similar defects
- Regulatory correspondence and adverse event reports
Spoliation Warning: Texas courts impose severe sanctions for spoliation of evidence. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014). ANY DESTRUCTION OR ALTERATION OF EVIDENCE WILL RESULT IN SEVERE CONSEQUENCES.
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] |
| Date of Purchase | [Purchase Date] |
| Retailer/Seller | [Retailer Name and Location] |
| Purchase Price | $[Amount] |
B. Chain of Distribution
Under Texas law, the following entities may be liable:
| Entity | Role | Liability Analysis |
|---|---|---|
| [Manufacturer Name] | Manufacturer | Full liability |
| [Component Supplier] | Component Manufacturer | Liable for defective component |
| [Retailer Name] | Retailer/Seller | Limited liability per Section 82.003 |
IV. THE DEFECT
A. Nature of Defect
[DESIGN DEFECT / MANUFACTURING DEFECT / FAILURE TO WARN - Select applicable]
[Detailed description of the defect, how it rendered the product unreasonably dangerous, and how the defect existed when the product left the defendant's control]
B. Risk-Utility Analysis
Under Texas's risk-utility test from Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995), the [Product Name] was defectively designed because:
- The risk of harm substantially outweighs the utility of the design
- A safer alternative design existed that would have prevented the injury
- The alternative design was technologically and economically feasible
- The alternative design would not have substantially impaired the product's utility
V. THE INCIDENT AND INJURIES
A. How the Injury Occurred
On [Date], at approximately [Time], our client was [describe use of product] when [describe how the defect caused injury].
B. Injuries Sustained
As a direct and proximate result of the defective product, our client sustained:
Physical Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]
Medical Treatment:
- [Treatment summary]
Permanent Effects:
- [Describe any permanent conditions]
VI. DAMAGES
A. Economic Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Total] |
B. Non-Economic Damages
Under Texas law, our client is entitled to compensation for:
- Physical pain and suffering (past and future)
- Mental anguish (past and future)
- Physical impairment (past and future)
- Disfigurement
- Loss of consortium [if applicable]
C. Punitive (Exemplary) Damages
[If applicable:]
Your company's conduct in [describe egregious conduct] constitutes gross negligence demonstrating subjective awareness of an extreme risk of harm and conscious indifference to the rights and safety of others, warranting exemplary damages under Tex. Civ. Prac. & Rem. Code Section 41.003.
D. Summary of Damages
| Category | Amount |
|---|---|
| Total Economic Damages | $[Amount] |
| Total Non-Economic Damages | $[Amount] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
VII. SETTLEMENT DEMAND
Based upon the clear liability of your company under Texas law and the substantial damages our client has sustained, 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].
If this matter cannot be resolved, we are prepared to file suit in the District Court for [County] County, Texas, and pursue this matter through trial.
VIII. DOCUMENTATION ENCLOSED
☐ Medical records and bills
☐ Photographs of the defective product
☐ Photographs of injuries
☐ Employment and wage documentation
☐ Product documentation and warnings
☐ Expert reports (if available)
☐ [Other relevant documentation]
IX. CONCLUSION
This case involves a defective product that caused serious injuries to our client. The defect was present when the product left your company's control, and the injuries were entirely preventable.
We urge you to evaluate this claim seriously and respond with a reasonable settlement offer within the time allowed.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
State Bar of Texas No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
[File]
TEXAS PRODUCTS LIABILITY PRACTICE NOTES
☐ Chapter 82 Framework: Texas Products Liability Act (Tex. Civ. Prac. & Rem. Code Chapter 82) governs products claims.
☐ Risk-Utility Test: Primary standard for design defects per Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995).
☐ Seller Protection: Sellers are generally protected from liability under Section 82.003 unless specific exceptions apply.
☐ Modified Comparative Responsibility: 51% bar rule - claimant cannot recover if more than 50% responsible.
☐ 15-Year Repose: No action more than 15 years after sale by defendant, with limited exceptions.
☐ Punitive Damages Cap: Greater of $200,000 or 2x economic + up to $750,000 non-economic.
☐ Expert Requirements: Expert testimony generally required on defect and causation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) (Daubert adopted).
☐ Joint and Several Liability: Defendants more than 50% responsible are jointly and severally liable. Section 33.013.
☐ Seat Belt Admissibility: Evidence of seat belt non-use is admissible. Tex. Transp. Code Section 545.413.
☐ Chapter 74 Requirements: Medical device claims may implicate Chapter 74 medical liability provisions.
This template is specific to Texas law. Products liability law is complex and varies significantly by jurisdiction. This template must be customized for each case by a licensed Texas attorney.