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TRIAL - November 1, 1994

Deposing the Product Manufacturer’s In-House Engineers

Gary C. Robb

By any cost/benefit measure, the potential gain from properly deposing defendant’s in-house engineers will more than compensate for the time, the trouble, and the expense of conducting these procedures.

The primary emphasis of these depositions will be to explore the engineers’ knowledge of any risk associated with use of the product, of alternative designs, and of reasons why they were considered. Emphasis will also be on the reasons the engineer believes the actual design with its known risk was selected.

The objectives of depositions, however, will shift as counsel moves up the corporate ladder. Initially, they are taken primarily to gather information, authenticate documents, and learn about corporate organization and structure. As one moves up the corporate ladder, greater emphasis will be placed on committing the deponent to certain positions: What instructions were received? What results were obtained? Were results communicated to decision makers?

It would be foolhardy to go forward with these depositions without extensive preparation, including scheduling and timing considerations. In fact, depositions should not be taken until certain crucial steps have been completed. (See Gary C. Robb, 10 Steps for Maintaining the Plaintiff’s Litigation Edge, TRIAL, Nov. 1993, at 52.) The following actions can maximize the potential benefit of these depositions:

Procure all requested documents and responses to interrogatories. The defendant must be made to respond to initial interrogatories and document requests promptly. Counsel must review these responses immediately to assess their sufficiency and follow up on any factual leads. These documents must be studied before deposing in-house engineers.

Acquire all relevant technical and trade literature about the industry, the manufacturer, and the product. With rare exception, counsel can tap into a wealth of technical data published in the industry’s trade literature. Experts can help in this search by identifying appropriate trade journals, reports, and other literature relating to the industry.

The technical literature may address the very problem that is the basis for a lawsuit. It is worth noting that in every state a manufacturer is held to the standard of an “expert” in that field and is presumed to be familiar with pertinent technical and scientific literature.

During the literature search and before taking depositions, counsel must identify design standards that are “ordinarily used” in the industry. Experts can be useful in identifying these standards, particularly where they are independently presented in trade journals or the engineering literature.
Acquiring relevant government regulations and standards is critical. Counsel often will find either congressional reports or state-initiated investigations that have covered the pertinent subject matter. Golden nuggets found in these reports will justify the search.

On a related note, many industries have a governmental compliance officer (GCO) whose primary task is to keep abreast of federal and state regulations. To the extent that the design, manufacture, or even marketing of a product deviated from published regulations, the GCO is a key deposition target.

Identify witnesses. After the “first wave” of discovery (interrogatories and document requests to the defendant), counsel will know the names of engineers involved with the design and manufacturing process.

Engineering supervisors are normally “managing agents” of the company. These witnesses are spokespersons for the corporate defendant. Under federal and comparable state court rules, they can bind the defendant by making admissions or statements against interest.

Depositions of the manufacturer’s designated agents should cover corporate engineering philosophy, procedures, and practices. The purpose of Rule 30(b)(6) depositions is to commit the defendant to particular knowledge of the engineering practices, a product’s possible hazards, or existence of similar complaints and lawsuits. The defendant should be made to commit to a position of either “positive” knowledge or “negative” knowledge about an engineering matter. An “I don’t know” response can amount to an important admission that can be explored at trial.

The only drawback of the designated witness deposition is that the defendant can select a spokesperson from a number of engineers within the corporation. Invariably, the defense will call only “coachable” witnesses who present an impressive appearance.

To overcome this problem, at least in part, counsel should carefully review the defendant’s documents to identify the names of engineers who apparently knew about certain matters but were not specified in answers to interrogatories. The corporation may prefer to keep these people hidden because they would not go along with the “corporate party line.”

Maximize the effectiveness of the designated agent’s deposition. Counsel must defer the designated agent deposition until all other individually named engineers are deposed. This is done because in any litigation there will be a learning curve. Counsel will know much more about the defendant’s safety philosophy and engineering procedures after completing the first depositions. The golden opportunity of a designated agent’s de-position should not be used as an educational experience.

Also, previously deposed engineers may not know some critical information. One purpose of a designated agent deposition is to commit the defendant to certain knowledge about engineering and policy directives—to obtain a clear picture of what the defendant knew and when.

Finally, much of the early deposition testimony of in-house engineers will be informational and, thus, true discovery depositions, but counsel should view depositions of designated agents as evidence. For this reason, counsel should videotape these depositions to show excerpts to the jury at trial. By saving this category of depositions for last, counsel avoids admissibility objections because that testimony is binding on the corporate defendant.

Complete the discovery of fact witnesses and empirical records. Once the depositions of in-house engineers begin, little guesswork should remain about underlying facts of the injury-producing event, use and ownership of the product, and its sales and marketing. Proceeding with engineering depositions without first nailing down these facts is an invitation to disaster. If questions at deposition are based on an inaccurate understanding of the product’s use in a given circumstance, the deposition will be worthless. There may be disagreement about some underlying facts, but these must be fully developed in the record so that counsel is not surprised later.

For the same reason, nontechnical and accident-related data such as title verification, medical records, and maintenance logs must be secured and authenticated before deposing in-house engineers.

Prepare jury instructions. Before taking depositions, counsel should prepare a draft of proposed jury instructions.

Prepare jury instructions. Before taking depositions, counsel should prepare a draft of proposed jury instructions.

These should be as close as possible to those the court will give jurors at trial. The defendant may dispute critical aspects of the plaintiff’s prima facie case at trial unless these points are admitted by witnesses during depositions.
Counsel may be so focused on obtaining proof of defect and related issues that questions directed to the product’s “reasonably anticipated usage” may be forgotten. Preparing jury instructions will fix counsel’s focus on the precise elements of required proof.

Taking the Deposition

For each deposition of a defendant’s in-house engineer, it is necessary to establish a common basis for communication. The starting point is agreeing on definitions of basic engineering terms.

Counsel should ask the engineer to define “risk,” “design hazard,” “anticipated environment of use,” “field use,” and “known environment of use.” There is normally little dispute about these definitions. The exercise simply avoids quibbling about the terms later.

The substantive importance of these depositions is to uncover knowledge that the defendant’s engineers had concerning the design, manufacture, and production of the product and its field use. Further information must be obtained as to the defendant’s knowledge of risk of injury during use and actions taken by the defendant based on that knowledge. The inquiry may proceed along the following lines:

Identifying hazards. The most critical safety engineering function in product development is to identify any risk of injury associated with intended and anticipated use. There are intended, predictive, and actual environments of use.

For example, a boat designer may intend a boat to be used on calm waters, although use on choppy waters is predictable and use may occur during a severe storm. Counsel must pin down the in-house engineer as to steps taken by the engineering department to identify each of these environments.

Counsel must always elicit an agreement that the term “hazard” refers to the known engineering risk of injury or death associated with the anticipated use of the product. Any engineer will agree that the hazard associated with a product’s use cannot be identified in a vacuum. This is why the anticipated and actual environment of use had to be identified by the engineering department. The engineer had to identify and predict real-life situations in which the product would be used.

A manufacturer does not blindly make products, ignoring how they will be used in the real world. There must be some mechanism for field response to assist developmental product engineering.

When inquiring about what a defendant knew about a hazard, counsel must separate the probability of injury from its anticipated severity. The severity of injury caused by a hazard may range from minor injury to paralysis or death. The higher the probability of suffering a severe injury, the greater is the hazard. Counsel should be prepared to gain agreement from the witness on the proposition that the likelihood of any death-producing event is excessive.

Similarly, counsel should elicit admissions that the likely result of an injury-producing event is severe injury or death. The means by which the defendant sought to acquire or document this information is very important. In-house engineering studies and their results should be obtained before taking any depositions.

Other examples of field-use data are reports of product failures that did not cause injuries, customer complaints, lawsuits, claims, and warranty reports. It is a violation of professional engineering practices to ignore field-use information in product development.

Designing out the hazard. Having confirmed from the engineers that the corporation knew of injury risk, counsel needs to examine design alternatives that addressed eliminating or reducing the hazard. Both the technical literature and counsel’s knowledge of the design of competitive products will come into play here.

The first task is to elicit the engineer’s knowledge of the existence of all known alternative designs related to the safety issue. It is helpful for counsel to list these.

Counsel must then explore with the engineer the pros and cons of each design. The engineer’s role is normally limited, because final design decisions may be made outside the engineering department. If so, this information must be confirmed with the witness.

If a design was selected on the basis of product attractiveness or cost, the engineering department may have been “out of the loop.” Often, counsel may be able to draw on the engineer’s frustration about the dominance of the company’s marketing arm. In any event, the ultimate decision-making function must be located.

When deposing the engineer, counsel should focus on alternative designs that could have eliminated the hazard at issue. If cost was a factor in selection, the precise cost per item should be discovered. If marketing “attractiveness” was a factor, counsel may examine the trade-off of higher sales against lower safety, which a jury normally reacts to with great disfavor.

Guarding against the hazard. If in-house engineers could not design away the injury-producing risk, they surely knew how guarding could eliminate or reduce it. Guarding can take many forms ranging from sealing off an en try point into dangerous machinery to adding a fire-retardant shield for an engine. Rarely does adding a guard impair product efficiency. The two principal issues are usually attractiveness and cost.

Warning of the hazard. If a redesign or guarding procedure was not selected, counsel must then thoroughly explore the alternative of a warning or instruction materials.

Depending on the industry; communications between manufacturer and field operator range from frequent to rare. The greater the frequency of contact between the manufacturer and the product user, the greater is the opportunity for a warning or instruction.

Counsel must be aware of any government regulations affecting warnings from the manufacturer. For example, the Federal Aviation Administration has specific requirements for communicating aircraft-related malfunctions and maintenance requirements to operators. Violations of these standards may be negligence per se.

A review of the communications between manufacturer and user may reveal an absence of information about known hazards. This may have created a false sense of security in the user.
When communication is frequent, the user may reasonably have believed that a routine service advisory would warn about design deficiencies or malfunctions causing injuries. The existence of a manufacturer-to-user communication system already in place dissipates any defense objections made on the basis of cost and marketing.

Manufacturer’s Actions

Counsel’s discovery of in-house engineers’ knowledge of a product’s potential risks and of alternatives to lessen that risk is only part of the discovery agenda. Relative to information known by, or available to, the defendant at any point in time, decisions could be made—ranging from pulling the product off the market to carrying on with business as usual. Counsel must ask an in-house engineer how many serious injuries and deaths must occur before the company initiates any action.

Counsel must also ask whether from an engineering safety standpoint the engineer at a given time would have recommended a design alternative, some form of guarding, or a warning. If an engineer says he or she would have made a recommendation because of safety concerns, counsel should not be surprised by a telephone call the following week from defense counsel inquiring about settlement.

The extent to which corporate management injected itself into the design process is an important theme. There is always tension and competition between the engineering/research/development department and the marketing/promotion/sales department. Tapping into this tension is one of the fundamental methods of successfully deposing the manufacturer’s engineers.

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