Product liability leading to personal injury or property loss can greatly impact importers, vendors, manufacturers, distributors, and retail sellers in any industry. It can also lead to complex litigation which can be costly, protracted and disruptive. Product liability claims alleging manufacturing defects, design defects, or the failure to warn involve high stakes given the potential for mass tort action resulting from modern industrial society. Today's marketplace knows no jurisdiction, and the potential for widespread public damage resulting from a centralized cause has increased with advances in technology.

Added to the procedural complications resulting from disperse and inestimable claimants are problems resulting from the nature of personal injury claims. Ascertaining the cause and harm as alleged by a claimant is an inexact science, particularly in cases of delayed-onset disease or injury. Issues in product liability cases are often extremely complex, and it can be very difficult to determine the source of the harm. As a result, Canadian courts have begun to relax rigid application of proof of causation principles in some cases, and have permitted the inference of causation from facts based on common sense without requiring positive proof, even in medical cases. This raises the possibility of situations where the defendant would bear the burden of disproving inferred causation.

Causation becomes even more difficult to determine where products involve multiple manufacturers, and there is potential for liability to be attributed to parties who are not responsible simply because liability cannot be accurately determined.

Damage awards in product liability cases can be particularly difficult to predict, since settlement is common in these cases and as a result there is limited case law.

When it comes to product liability litigation, the best course of action is to be proactive, and when issues arise, to act quickly and decisively. Whether the matter involves food and beverages, pharmaceutical products, medical devices, chemical products, green technologies, automobiles, computers or building materials, our team has the resources and expertise to provide your business with the information it needs to make the right decisions and act quickly. Gowlings' knowledge base includes industry specialists, forensic accountants and auditors, engineers, epidemiologists, pharmacologists, physicians and clinical researchers. As a result of its significant experience in insurance law, Gowlings can provide comprehensive insurance advice, including information regarding litigation insurance.

When a business faces a potential product liability situation, it is imperative that its suppliers, customers, lenders and insurers know it is staying focused on its business while effectively dealing with a product recall or litigation. Gowlings has the technological resources necessary to get you answers when you need them, allowing you to get back to your normal business as quickly as possible. Our team uses leading-edge communications, database and Internet technologies to present your position in the courtroom. Secure extranet sites provide our clients with instant, 24/7 access to critical documentation, including court materials, status reports and internal communications.

You can mitigate your risk by:

• structuring the components of an immediate and sustained response;
• developing and implement product warnings and product recall procedures;
• reviewing corporate governance structures to address alleged compliance failures;
• safeguarding your position during audits, inspections and search warrants;
• developing effective media and public relations strategies to protect brand integrity;
• targeting responses to the investment community, shareholders, consumers, governments and regulatory agencies; and

• protecting your interests in class actions and related litigation

This, combined with our business focus and experience will guide you though any product liability issues efficiently and with the best possible outcome.

For more information on Gowlings' product liability services, you can visit our Product Liability website here and our Manufacturing and Distribution website at  www.gowlings.com/industry/md.asp.