Gary C. Robb
Evening the Odds
Defense counsel enjoy many inherent advantages in products liability actions. By representing those who designed, manufactured, and sold an injury causing product, counsel defending the action have a ready-made reservoir of product expertise. Product manufacturers also have a financial advantage and often seek to outspend an injured plaintiff.
At the outset, however, plaintiffs’ counsel have a unique advantage. Most of the time, they know about the case before the defendant even knows that an injury occurred. To capitalize fully on this head start, counsel should conduct a thorough presuit investigation of the case. The following should be accomplished before filing a products liability lawsuit in order for plaintiffs’ counsel to even the odds against manufacturers.
1. Gathering the facts. Most plaintiffs’ attorneys are skilled at basic client interviews, but they should be sure not to neglect some specific matters with the client during the presuit investigation stage. In addition to facts about the product and the accident, counsel should elicit how the client learned about the product, how the client learned to use the product, who the witnesses were, and more. Even at this early stage, counsel should seriously consider which legal theories are suitable to the case. The statute of limitations date, of course, should be calendared at the first meeting.
It also is critical for counsel to consider which affirmative defenses are likely to arise and how best to rebut them. Thorough research on the requirements for comparative fault and assumption of risk defenses proves valuable down the road.
Counsel must obtain at the outset specific information about the offending product. This includes the name and location of the manufacturer, the age and model number of the product, the serial number if applicable, and pertinent options. The maintenance and repair history of the product is also necessary because many defendants point to “inadequate maintenance” or “product abuse” as the proximate cause of injuries.
Many victims are unable to precisely describe the way in which they were injured while using a product. If the plaintiff was using the product at the time of the injury —i.e., was not a passive recipient of the product’s harmful effects due to an explosion, a car accident, or the like —I have found it helpful to ask the client to act out what he or she was doing immediately before the injury-producing event.
For example, in many cases, the positioning of the plaintiff’s hands on the product is relevant to a defendant’s claim of comparative fault. By having the client close his or her eyes and visualize actions at the time of the injury, counsel can record these facts so that the client can be reminded of them before the deposition or before trial.
In addition to eliciting information about the client’s experience with the product, counsel should record what training or instructions the client received before the accident. Counsel must determine whether the client at any time had access to an instruction or owner’s manual and whether it contained specific instructions or warnings about proper or improper use of the product.
It is also important that plaintiff’s counsel gather basic information about the client at the beginning of the investigation. Has the client filed prior claims? Has the client ever pled guilty to or been convicted of a felony? If lost income is claimed, has the client filed tax returns? How deflating it can be to learn in the middle of litigation that a client with an otherwise meritorious case has not filed a federal tax return for five years!
Products cases require attention to detail. One helpful method is to use an extensive information intake form. A sample of the author’s Products Liability Case Information Form is available on request to ATLA members. (Send a self-addressed stamped envelope to me at
Robb & Robb, Mark Twain Tower, Suite 1500, 106 West 1lth Street, Kansas City, MO 64105.)
2. Obtaining statements from fact witnesses. At the earliest possible time, counsel should meet with all fact witnesses who know about the accident, the product, or the injuries. It is important to obtain written statements for two reasons. First, the trial may be several years away, and most people forget details as time passes. Second, the witnesses may be influenced to recall matters differently after a meeting with aggressive defense counsel.
Counsel should gather statements from fact witnesses before inspecting the product, obtaining experts, or spending more time and money on the case. Occasionally the facts as related by the client are diametrically opposite to what the witnesses with firsthand knowledge recall and will ultimately testify to. If the fact witnesses are credible and nonbiased and their recollections undermine the potential cause of action, counsel must confront the client. Unless the client can honorably reconcile the competing versions, counsel should consider withdrawing from the case.
In some instances, plaintiff’s counsel may wish to provide the witness statements with a settlement brochure before or shortly after filing the suit. These statements may induce the carrier to pay fair value on the claim to avoid substantial expenditure of defense costs.
3. Acquiring the product. Counsel should acquire the actual offending product or, if it has been destroyed or is otherwise unavailable, a like product. Establishing a manufacturing or design defect is challenging enough when a plaintiff has access to the product: proof of such a defect without the product may be impossible.
A plaintiff who has the defective product controls the expert examinations. The experts can have unfettered access to the product and conduct any necessary testing. Moreover, a plaintiff’s attorney can control the timing and extent of the defendant’s examination of the product. In most jurisdictions, destructive testing is prohibited, and most courts permit the plaintiff’s counsel or his or her representative to be present during the product examination.
Having custody of the product is very helpful where extensive testing is warranted. Such testing is done at the convenience of plaintiff’s counsel and his or her products experts. I recommend that the plaintiff’s firm maintain a secure storage warehouse for retaining products. No one other than the plaintiff’s law firm should have access to the warehouse. The cost of such storage is surprisingly reasonable.
In a recent case involving a truck defect, the advantage of owning the truck was borne out. Before trial, the defective seating in question was brought into the courtroom on a platform and became Plaintiff’s Exhibit No.1. It became the focus for the trial, which resulted in a substantial plaintiff’s verdict.
Where the injury-producing product is secured, plaintiff’s counsel should resist at all cost allowing the defendant or its experts to examine or test the product without a representative of the plaintiff present. If possible, plaintiff’s counsel should videotape the defendant’s testing of the product. Every so often, the product will react exactly how the plaintiff claims it reacted, and what a delight it is to capture defendant’s experts’ realization of this on videotape!
Sadly, cases are legion in which a defendant manufacturer “accidentally” lost or destroyed the product. See, e.g., DePuy, Inc. v. Eckes, 427 So. 2d 306 (Fla. Dist. Ct. App. 1983) (hip prosthesis given to defendants for testing was returned with fracture site missing). Being present at the product inspection allows counsel to review and record precisely what defense experts do to the product.
4. Photographing the scene and injuries. The scene of the injury should be photographed and diagramed. This important task is often put off, and by the time someone goes out with a camera, things have changed.
Also, counsel should promptly obtain photographs of the injuries. They may look ghastly soon after the injury, but a year later may not look so bad.
Preferably, photographs should be taken by a professional. The negatives of professional photographs permit better quality enlargements for use as exhibits at trial. A 35mm camera cannot generate photographs larger than 8 x 10 inches without a poor quality finish and a grainy or snowy backdrop. By contrast, a professional using a heavier studio-quality camera can produce a much larger negative, which can be developed into a trial exhibit photograph of 30 x 40 inches with outstanding sharpness.
5. Locating and retaining liability experts. Virtually every products case requires assistance, identification, and opinions of a qualified expert witness. Although the federal rules and most state procedures are somewhat lax about who qualifies as an expert, many cases are won or lost by selecting and using the proper expert.
Counsel should search the relevant scientific and engineering literature before seeking a product expert. This material can lead counsel to the top authorities in the particular product field.
Such an expert is far preferable to the well-worn but battle-tested professional who will testify on just about anything. Someone prominent in the field may or may not have testified before. Whether he or she will make a good appearance to the jury or withstand vigorous cross-examination is a judgment that plaintiff’s counsel must make.
Too many members of the plaintiff’s bar spend too little time searching for the right expert. Even though the local mechanical engineer will make the plaintiff’s submissible case, that is not enough. Increasingly, defendants are seeking out the best qualified experts. The best way to combat this approach is to consult an expert for plaintiff who makes a better witness.
Given thorough preparation, the first-time expert can be a pleasure to produce for deposition. It is always a delight to see defense counsel’s expression when he or she learns the plaintiff’s expert has never before testified in deposition or at trial.
Lawyers often think that lack of prior litigation experience disqualifies a product expert. We forget that engineers, either in industry or academia, must defend their opinions constantly. I have witnessed presentations of papers at engineering meetings where the presenter was grilled far more intensely than in the typical deposition. Finding these gems takes more time and effort, but the results are well worth it.
Prompt consultation with a qualified liability expert yields two important advantages. First, the expert can advise counsel on the “recoverability” of the products suit and point to potential liability problems before counsel has filed suit. Prudent practice requires counsel to make arrangements for the expert to physically examine the subject product as early in his or her consultation as possible. If most or all of the expert’s opinions are formed before he or she has actually examined and tested the product, the expert is vulnerable to cross-examination. Defense counsel may then argue to the jury that this expert’s opinions are suspect or that they were “spoon-fed” from plaintiff’s counsel in view of the fact that the opinions were formed without the benefit of hands-on examination and testing.
If counsel is unfamiliar with the technical or scientific field involved, the promptly retained expert may suggest experts in related fields who may be not only useful but necessary in presenting plaintiff’s prima facie case. For example, counsel may employ an automotive engineer to examine a vehicle’s seat-harness system that allegedly caused plaintiff’s injuries. After examining the system, the expert may well be able to testify about the existence of a defect in the latching mechanism or the materials used or other deficiencies. However, a biomechanical engineer would have to testify on the precise cause or relationship of the defect to the client’s injuries.
The second major advantage of early retention of products experts is their use as “discovery counselors” throughout the litigation. I routinely enlist the help of product experts in drafting interrogatories and, particularly, document requests, because of their expertise. In drug product cases, early retention of a pharmacological expert is mandatory for even the most seasoned products attorneys. At given points in time, the Food and Drug Administration has had varying reporting requirements concerning the efficacy of its drugs; information to be contained on New Drug Applications (NDAs); and other reporting requirements regarding research, testing, and field experience. In view of the importance of these early discovery skirmishes concerning interrogatories and documents, proceeding at this stage without the advice of the expert is courting disaster.
Although plaintiff’s counsel must be in charge of the methods of discovery and trial preparation, he or she should not hesitate to get the advice of an expert. In many instances where an expert has consulted in litigation previously, he or she may know more about the pitfalls than counsel.
Too few plaintiffs’ counsel, whether for financial reasons or other reasons, take advantage of the opportunity to have the liability expert present at a deposition of the defendant’s representatives or defense experts. In developing useful information, having the assistance of the expert at the deposition is most valuable.
If counsel chooses not to have the expert present at any of these depositions, an alternative is to make arrangements for a brief telephone conference with the expert near the end of the deposition. Counsel can tell the expert of the positions taken by defendants or their experts and the plaintiff’s expert can suggest new lines of inquiry to explore those positions.
6. Consulting other plaintiffs’ lawyers. Counsel should consult other attorneys who have handled similar cases. The ATLA Exchange is a good resource for accomplishing this task.
7. Meeting treating physicians. In person meetings with all treating physicians should take place as soon as possible. They are not always helpful, however. The physicians may have a defense orientation or simply not want to get involved. An agreement to videotape a deposition instead of calling the physician to trial sometimes results in the cooperation desired.
8. Preparing jury instructions. All too often, counsel leaves the preparation of jury instructions until the week before trial or, worse yet, during trial. By taking the time to draft instructions at the outset, counsel can streamline discovery to the facts most probative of the elements of the plaintiff’s case in chief.
9. Filing discovery requests with complaint. Filing opening interrogatories, a first request for production of documents, a first request for admissions, and a Federal Rule of Civil Procedure 30b(6) notice of oral depositions of an organization’s designated agents can set the tone for the litigation by virtue of counsel’s taking the initiative in discovery from the outset. Counsel should insist on full and responsive discovery before answering defendant’s discovery and take the lead in setting deposition dates and other discovery deadlines.
Counsel should never permit depositions of his or her liability experts or depose a defendant’s designated agents before obtaining all properly discoverable documents. There simply is not enough time at deposition to review, digest, and organize the documents for maximum effectiveness in examining the witnesses.
If counsel for the plaintiff accomplishes these tasks before service of process, the plaintiff gains a substantial advantage throughout the case. By carefully preparing the case before defense counsel are even on notice of the potential suit, plaintiff’s counsel gains an advantage that should carry through the rest of the litigation and, ideally, result in a favorable settlement or jury verdict.
Gary C. Robb is a partner with Robb & Robb in Kansas City, Missouri. He is a member of the Board of Editors of Products Liability Newsletter, published by Leader Publications.