Gary C. Robb
TRIAL
11/01/1993

In every products liability case, plaintiff’s counsel makes the first move. The party making the first move in a competitive event, whether playing the white pieces in chess or serving in a tennis match, enjoys a distinct tactical advantage.

The party making the first move can force the adversary into a defensive posture. Maintaining this advantage places pressure on the opponent, controls the action, and reduces response time and options. Maintaining the litigation advantage is counsel’s overriding objective throughout a products liability lawsuit.

The proper handling of a products liability lawsuit must build on the plaintiff’s inherent advantage of going first. You must dictate the action by controlling the timing and sequence of discovery, thereby placing the defendant manufacturer in a defensive/reactive position throughout the entire lawsuit. If you do this, the prospects for a successful resolution—by verdict or settlement—are immeasurably enhanced.

There are 10 suggested steps for maintaining the tactical upper hand. To ensure effective implementation of these steps, you should—

• Take the lead in propounding and scheduling discovery;
• Focus efforts, time, and energy on obtaining discovery from defendants, not on resisting their lawful discovery of plaintiff; and
• Insist on full responses to “paper” discovery and in depositions.

With only one exception, the following 10 steps are sequential and you should not move to the next until the preceding step has been completed.

1. File when ready. Absent a statute of limitations problem or a seriously ill client or witness, you should not file the lawsuit until all preparatory prefiling steps have been accomplished. These include completing the fact investigation, obtaining statements from fact witnesses, securing the offending product, and retaining all necessary liability experts before the defendant manufacturer is even aware of the potential suit.

It is essential to complete the above actions before filing the lawsuit. Never be in a “catch-up” mode. From filing to discovery to trial, a methodical approach keeps the defendant from gaining control of the lawsuit. If at any point the manufacturer can dictate the action and place you on the defensive, the plaintiff’s inherent litigation advantage is destroyed.

All initial discovery requests should be served with the summons and complaint. These include a first set of interrogatories, first request for production of documents, and a Federal Rule of Civil Procedure 30(b)(6) notice of oral depositions of the manufacturer’s designated agents (or comparable state procedure). Early and firm control of the discovery process reaps a substantial benefit.

2. Challenge the sufficiency of the defendant’s answer. Many defense firms have a standard or “boilerplate” answer to a products liability complaint. When served with a standard answer, force the defendant to plead any defense with sufficient particularity and move to strike any defense that is immaterial or insufficient as a matter of law.

Under Federal Rule of Civil Procedure 12(f) and comparable state court rules, a plaintiff may move to strike “any insufficient defense” within 20 days after the service of that answer. Many times an affirmative defense raised by the defendant will not apply as a matter of law to the theories set forth in the plaintiff’s complaint.

For example, many states prohibit a “state-of-the-art” defense against a strict products liability claim. If the plaintiff has pled only in strict products liability and not negligence, plaintiff should not be burdened with the time and expense of litigating a state-of-the-art issue where it would be irrelevant as a matter of law.

Similarly, a manufacturer’s answer often alleges the comparative or relative fault of another party, most typically the plaintiff or a non-party such as an employer, previous owner, retailer, or governmental entity. If these allegations are generally framed and do not set forth any factual basis, immediately challenge them under Rule 12(e) of the Federal Rules with a motion demanding a more definite statement.

Failing to take advantage of either Rule 12(e) or Rule 12(f) will only encourage a manufacturer to obfuscate throughout discovery. A streamlined approach to discovery always benefits the plaintiff. Use these rules to forcibly compel if necessary a clear framework of the issues to be litigated.

3. Seek a firm discovery schedule and trial date. As soon as all defendants have answered, arrange a conference with the court and opposing counsel to prepare a discovery scheduling order. At minimum, the order should set deadlines for amendment of the pleadings, joinder of additional parties, identification of expert witnesses, filing of dispositive motions, and conclusion of discovery. A discovery schedule will discourage stonewalling by the defendants.

By the time the lawsuit is filed, you will have already retained liability and other experts and have them available for identification. However, without a court-imposed discovery schedule, defense counsel will delay identification of defense expert witnesses for as long as possible.

The earlier the deadline for identifying expert witnesses the better. Early disclosure of plaintiff’s team of liability experts is a powerful indication of readiness and thorough preparation.

At minimum, the defendant should be required to identify its liability experts within 30 or 60 days after plaintiff’s disclosure (ideally, of course, the deadline should be the same for both). Faced with such a deadline, defense counsel will have less time to locate, investigate, consult with, retain, and prepare the defense experts.

Always insist on a specific date for identification of the defendant’s liability experts. Defense lawyers often request an expert disclosure deadline of 30 or 60 days after all plaintiff’s liability experts have been deposed. Resist this arrangement, as it allows defense counsel to depose plaintiff’s experts piecemeal while delaying the identification of defense experts indefinitely.

A firm deadline for amending the pleadings works to plaintiff’s advantage as well; any affirmative defense not raised by this deadline should be waived. Such a deadline also avoids the last-minute third-party claim or cross-claim desperate manufacturers of defective products often resort to.

You should seek to obtain a firm or special trial date at the earliest opportunity. A special or “first out” trial date turns over the hourglass and starts the flow of sand against the defendant. For reasons of efficiency and effectiveness, you should prepare for trial once and only once.

4. Complete plaintiff’s “first wave” of discovery—interrogatories and document requests to defendant. You reasonably should expect the defendant to respond to the initial set of interrogatories and request for documents accompanying the summons and complaint within 45 to 60 days. These responses should be reviewed immediately—primarily to assess their sufficiency but also so you can follow up on any factual leads set forth in the answers.

Do not move into the “second wave” of discovery—depositions of the manu-facturer’s employees—before receiving responsive answers to the first wave. If this material is not complete, insist that the defendant produce all relevant documents and answers to interrogatories —by court compulsion, if necessary. You and your liability experts will need time to study these materials before deposing the defendant’s employees and designated agents.

It is tempting to avoid discovery disputes by accepting the defendant’s offer to file scaled-down discovery responses. Resist this temptation because usually the offer is made only to avoid disclosing information and documents that most strongly support plaintiff’s claim.

Similarly, resist a defense offer to produce its employees or designated agents while awaiting resolution of any ongoing “paper discovery” disputes. You must have the opportunity to carefully review all documents produced by the defendant and to consult with the plaintiff’s liability experts about relevant points the documents contain. The need for advance study and organization of documents precludes your ever agreeing to any defense offer to produce documents “during or at the time of the deposition.” No lawyer can simultaneously depose a witness and make critical judgments about the relevance of numerous documents.

During this first wave or “paper phase” of discovery, there is danger lurking. During these early discovery skirmishes, a defendant manufacturer will move to seize the initiative—and the litigation advantage—by objecting to plaintiff’s lawful discovery while insisting on absolute precision in the plaintiff’s responses. Fight these tactics by promptly filing motions to compel adequate discovery and by refusing to be bogged down in discovery disputes propounded on the plaintiff.

Respond forthrightly to defendant’s initial discovery requests for all informa-tion that is lawful and proper. This “clean hands” approach puts you in a favorable position should you need the court to rule on any frivolous objections made by the defendant.

5. Complete the “second wave” of discovery—depositions of defendant’s officers, employees, engineers, and designated agents. At this stage of discovery, you know the names of the officers and various employees and engineers who were involved with designing, manufacturing, and marketing the product.

Whether plaintiff’s counsel should adopt a “bottom-up” or “top-down” approach to discovery of a product manufacturer is much debated.

With a bottom-up approach, counsel begins with depositions of lower-level employees and ends with division supervisors or officers. With a top-down approach, counsel proceeds down the chain of command. The bottom-up approach more effectively maintains the plaintiff’s litigation advantage.

Lower-level employees are less prone to suggestion by aggressive defense counsel than those higher in the chain of command and may be more likely to stick to the facts. Ask these lower-level employees not only what they know about the product but also if they know of internal memoranda or any other documents that were not produced in discovery. Pay particular attention to what directions and instructions were given to the “hands on” employees by their superiors and, particularly, what communications were relayed up the corporate ladder.

Take depositions of the managing agents, officers, and directors next. These witnesses are official spokespersons for the corporate defendant and can bind the company by making admissions or statements against interest.

Finally, schedule the depositions of the organization’s designated agents. The purpose of Rule 30(b)(6) depositions is to commit the corporate defendant to policy directives, obtain a clear picture of what the corporation knew about the product and when, ascertain the existence of similar complaints and lawsuits, and fill in any holes concerning discovery not obtained from previously deposed employees.

The drawback of a designated-witness deposition is that the defendant can pick and choose from a number of witnesses. Invariably, defense counsel will call the most articulate, impressive, and coach-able witnesses.

A helpful stratagem is to review documents produced by the defendant to pinpoint the names of any employees who would appear from the content of the document to know about certain matters but who were not identified in defendant’s answers to interrogatories. Defense lawyers usually have good reason to keep these people hidden. Many are unfailingly honest. They may not have appreciated, or perhaps resisted, defense counsel’s coaching and thus were rejected for use as witnesses. Or the manufacturer may simply have thought they would be unfavorable witnesses for the corporation.

6. Produce the plaintiff for deposition only after completing first and second discovery waves. Most defense lawyers are anxious to “get at the plaintiff,” especially where comparative fault is an issue. Agree to produce the plaintiff for deposition as soon as the defendant’s corporate witnesses have been deposed. This procedure avoids the distraction of preparing and producing the client in the middle of the plaintiff’s own second wave of discovery, and it also induces the defendant to more quickly produce the defense witnesses for deposition.

The overriding justification for waiting to produce the plaintiff for deposition until after completing the first and second discovery waves is that this is the period in which you are likely to find additional defendants, such as component part suppliers, distributors, retailers, or repair shops. You may need to seek leave to amend the original complaint to bring in additional defendants before producing the plaintiff for deposition.

Any defendant who is brought into the case after plaintiff’s deposition has been taken is entitled to redepose the plaintiff—to get “another bite at the apple.” A second go-round gives the defense an opportunity to trap the plaintiff into a minor inconsistency that could undermine an otherwise meritorious case.

7. Produce plaintiff’s liability experts for deposition only after completing first and second discovery waves and the plaintiff’s deposition. It is imperative that plaintiff’s liability experts have the benefit of reviewing both the documents obtained from the defendant during discovery and the deposition transcripts of the defendant’s employees and other agents before giving their final opinions on liability and causation.

All the information discovered during plaintiff’s first and second discovery waves should be given to the liability experts before the deposition. If additional or different underlying facts reach experts after the deposition, the opinions given may be incomplete or, even worse, erroneous. This leads to complications, not the least of which is having to offer up the liability expert again to revise or bolster the earlier opinions.

The other sequential imperative is that the plaintiff’s deposition must be completed before the deposition of plaintiff’s liability experts. Otherwise, if the plaintiff’s sworn version of the facts later differs materially from those assumed by the expert, the expert’s opinion is rendered worthless.

8. Complete plaintiff’s “third wave” of discovery—depositions of defendant’s expert witnesses. In addition to the customary thorough and probing depositions of defense experts, you should confirm that the defense experts have not received documents, testimony, or any other data not available to the plaintiff’s own experts.
9. Complete the “fourth wave” of discovery—requests for admissions of fact and genuineness of documents. At this stage of discovery, defendants will be more inclined to admit the truth of undisputed matters of fact. Your request should set out as many basic, undisputed facts as possible so as to compress plaintiff’s case-in-chief and eliminate unnecessary witnesses and evidence.

Serve a request for admission of genuineness for any and all documents sought to be admitted at trial, whether or not they were generated by the defendant. Documents should include all medical records and billings, investigative reports, pertinent industry standards, as well as any defense documents intended to be introduced as evidence at trial. Documents already furnished to defense counsel or made available for inspection and copying need not be served with the request.

10. Prepare for trial throughout the entire case. This last step is the single exception to the sequential order outlined above. For maximum effectiveness, your trial preparation must be ongoing throughout the discovery process.

All too often plaintiff’s counsel views a products liability case in two sequential steps: discovery followed by trial preparation. These activities should be thoroughly intermingled and interwoven.

The trial notebook is an essential tool for preparing for trial. Create the notebook or set up the equivalent computer field at the outset of the case and revise it throughout litigation. On the airplane or at the office—even during a tedious deposition—you may think of ideas to use in making the opening statement and closing argument, presenting evidence, and determining the order of proof and witnesses. You should put these thoughts in the trial notebook.

Preparing for trial throughout the entire case also includes periodically testing your theory of the case. Do this either informally with friends and colleagues or formally with focus groups, mock juries, or sample venire surveys. Constant reevaluation and frequent feedback permits you to fill in proof holes or revise the theme of the case well before trial and, indeed, at a point when you can conduct meaningful discovery or take other remedial steps.

Best Moves

The very best opening moves in any contest are designed to place early and persistent pressure on the opposition. Being on the defensive means operating with less room to maneuver, being forced to make decisions earlier than desirable, and, ultimately, losing a large measure of control over the final outcome.

In a products liability lawsuit, plaintiff’s counsel must constantly take the offensive by using a systematic, methodical, and focused approach to discovery and trial preparation. All these efforts will be rewarded when you hear the five most beautiful words in the English language, “We find for the plaintiff.”