1. INDEPENDENT EQUIPMENT DEALERS ASSOCIATION
Mitchell S. Milby, Esq.
Phillip A. Tumbarello, Esq.
Sean McDonough, Esq.
INDEPENDENT EQUIPMENT DEALERS ASSOCIATION
February 15, 2016
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2. Know Thy Seller/Buyer
AS A YOUNG CHILD MY MOTHER TOLD ME I CAN BE ANYONE I WANT TO BE TURNS OUT THIS IS CALLED IDENTITY THEFT
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3. Know Thy Seller/Buyer Legal name
Contact information
Tax ID
References
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4. Know Thy Equipment
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5. Know Thy Equipment
Inspections, aka, you do inspect the equipment, right?
Benefit of you vs. third-party inspection
Buyer inspections & limitations/disclaimers
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6. Know Thy Equipment Seller Warranty Possession Right to sell
Lien searches and limits
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7. Product Liability Is there a defect? Did the defect cause an injury?
Design
Manufacture
Warnings
Did the defect cause an injury?
Damages?
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8. Product Liability
A lawsuit filed by an injured party against a manufacturer, distributor or seller of a product
Product liability claims are governed by state law – state statutes or case law
Question of product defect is a fact question decided by the jury trials
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9. Product Liability Liability without regard to negligence
Liability without regard to privity
All parties in the chain of distribution
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10. How Do You Determine Product Defect?
Definitions of defect vary from state to state
Most common definitions include:
Do the risks posed by the product outweigh the utility?
Is the product more dangerous than a reasonable consumer would expect?
Are there reasonable alternative designs that would have prevented the accident?
© 2016 Wilson Elser. All rights reserved.

11. Restatement (Second) of Torts
What is a defect?
Risk/benefit test
Consumer expectation test
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12. Restatement (Third) of Torts
What is a defect?
Reasonable alternative design
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13. Product Liability: Practical Aspects
Codefendants and settlements by codefendants
Apportionments of liability
Pre-judgment interest
Standards for punitive damages
Awarded in 10 to 12% of cases
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14. American Tort Form Association
Publishes annual lists on line – CA, NYC, FL, MO, IL (Madison County), LA, Texas (Hidalgo County & U.S. Eastern District), Virginia (Newport News)
The same venues are on the lists year after year, usually only the order of the ten worst venue changes (the ten are usually the same)
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15. The Least You Need to Know
Product liability issues: Defect? Causation? Compensation?
Jury decides
Three types of defects: Design, Manufacture, Warnings
Trials are a battle of experts
Compliance with standards is only evidence, not a defense
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16. Gray Market
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17. Can You Limit Your Liability?
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18. State-by-State, i.e., uneven
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19. You Can Trust Me, Do We Really Need a Contract?
Master agreement
Warranty v. AS-IS
Defense & indemnity – getting and giving
Consequential damages
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20. Warnings
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21. Conclusion “Everything will be okay in the end. If it’s not okay,
it’s not the end.”
(unknown)
© 2016 Wilson Elser. All rights reserved.

22. Contact Mitchell S. Milby Partner Dallas, TX 214.698.8071
Phillip A. Tumbarello
Partner
White Plains, NY
Sean M. McDonough
Partner
Orlando, FL
© 2016 Wilson Elser. All rights reserved.