What is Products Liability in the New Millennium?

Depending upon your status in the legal community, or who you listen to, or what you read, you may believe that court decisions or legislative enactments have in the 90's, and may, for the foreseeable future, foster upon the American Public draconian legislative tort reform, or impose judicial preemptive strikes upon common law rights, or it may have been the decade of big, runaway verdicts. How you view the world of products liability depends upon your vantage point. This article attempts to provide a different view of the 90's and a predictive look at the next decade. As trial lawyers, representing the interests of catastrophically injured victims of individual and corporate neglect, we must see the "life of each of our cases" through the eyes of the jury. Only in this fashion can we select the "right" cases to litigate, and only then can we decide on the "right" theme to present in our quest to prevail upon the jury to find in our client's favor. The selection of cases and the manner in which cases are submitted to a jury dictate the success or failure counsel will experience in this age of consumer/jury cynicism.

Let's start by reviewing some of the major litigation topics of the 90's. If you study the types of products that are repeatedly part of the litigation process, it may help to focus what we, as trial lawyers, need to do to keep jurors interested and to prevail upon them to find in favor of our clients. Here is a list of the major products in litigation today:

Motor vehicles
Asbestos
Pharmaceutical Drugs
Industrial/Farming Equipment
Sports equipment
Cigarettes
Infant car seats
Medical devices

These products are, with few exceptions, interactive. That is, the consumer must choose to use the product, thereby "voluntarily" exposing himself/herself to the risk of harm, yet with the exception of cigarettes, consumers do not generally know the risk of harm to which they are exposed in the use of these products. The innocence of the victim becomes a rather significant factor in case selection and trial success.

The key elements to success in the field of products liability in the 90's were (a) good case selection, (b) sound organization, (c) aggressive discovery, (d) appropriate expert selection, and (e) creative and thoughtful trial presentation.

Case Selection

In this age of "personal responsibility," choosing wisely among the cases available to counsel is probably the most important task we face. After all, the business philosophy espoused by some in the 80's—"a volume practice is the way to go"—no longer works. No trial lawyer wants to lose, and the easiest way to avoid that situation is to take only cases with more chances of winning than losing. Putting it very simply, counsel should seriously consider restricting his or her case selection to those matters which have the following elements: (a) an "innocent" plaintiff (e.g., an injured person who did not contribute in any significant manner to his or her injury, and who was using the product in a foreseeable manner); (b) a plaintiff whose injuries are significant in causing life-altering circumstances; (c) a product which caused injury in a fashion that most people would not expect; (d) injury or death due to a design/manufacture feature which can be altered (in a demonstrable manner) without significantly effecting the usefulness of the product and which will increase the overall safety of the product; (e) an injury mechanism which is well understood and which can be illustratively shown to be avoidable with product modification.

Organizational Needs

The law firm of the new millennium must be well organized to handle the new challenges of products liability litigation. Coordination of tasks is essential. Document management is perhaps the most challenging aspect of the practice on a day to day basis. Every case must be processed through a "team approach"; that is, counsel must have personnel who can competently investigate every aspect of the facts of a case (before filing suit, if possible); investigate all aspects of the forensic issues that can be obtained through public information sources; locate and secure appropriate expert services; develop internal computerization to catalog and sort the incoming data; pursue with a vengeance the pre-trial discovery of the defendant manufacturer; and, coordinate the logistical tasks incumbent upon counsel when trial is imminent.

Discovery in the 90's

In the early 90's, courts and rules committees spent an inordinate amount of time developing "new discovery rules" intended to reduce the adversarial relationship of the discovery process. It has been termed "voluntary disclosure." It has not worked. Discovery continues to be the albatross of products liability litigation. Whether the rules require "voluntary disclosure" or disclosure upon request, the adversarial system continues the same patterned behavior. Plaintiffs ask for all conceivably relevant information and the defendants try to restrict discovery of technical data to those materials which are precisely identical to the product and facts of the accident at issue. Likewise, the defendants seek discovery of all materials that plaintiff's counsel has acquired about the product from other sources and the plaintiffs resist this intrusion of their purported work-product. Counsel and courts continue to be inundated with discovery battles over issues of "scope," "confidentiality," "privilege," and "work product." A few years ago, a federal district court judge called upon to address a typical discovery dispute stated:

"The defendant's decision to avoid discovery may be no more than [an] extension of the initial corporate decision to market a product despite the existence of a known defect . . ."

"In some type of litigation the motivation to resist discovery is so great that offenders will not comply with discovery unless they know in advance that the cost of 'stonewalling' will be greater than the benefits. Only by imposing harsh sanctions against the willfully deceitful and evasive litigant do the courts take the advantage out of such misbehavior and turn it into a decided disadvantage." Chudasama v. Mazda Motor Corp, 1995 WL 641984 (M.D. Ga. 1995).

Here are some basic propositions to follow in the discovery battles you must wage against the manufacturers of defective products: (1) network with other attorneys, (2) refuse to sign confidentiality agreements [except under the most favorable circumstances], (3) require the defendant to account for each document produced so that the thoroughness of your adversary's production can be gauged, (4) maintain civility with your opponent -- never personalize litigation, (5) identify and, if possible, work out foreseeable controversy before taking corporate depositions, (6) refuse to accept documents which have been altered by the defendant without leave of court, and (7) refuse to inspect documents at a repository without a full list of all materials and an agreement that no additional documents will be added without notification to you.

Information sharing is the core means available to plaintiffs to prepare a products case. Judge Carrigan best summarized the importance of information sharing in Ward v. Ford Motor Company, 93 F.R.D. 579, 580 (D. Colo. 1982):

"The plaintiffs' attorneys' discovery information exchange group reduces the effort and expense inflicted on all parties, including Ford, by repetitive and unnecessary discovery. In this era of ever expanding litigation expense, any means of minimizing discovery costs improves the accessibility and economy of justice. If, as asserted, a single design defect is the cause of hundreds of injuries, then the evidentiary facts to prove it must be identical, or nearly so, in all cases. Each plaintiff should not have to undertake to discovery [sic] anew the basic evidence that other plaintiffs have uncovered. To so require would be tantamount to holding that each litigant who wishes to ride a taxi to court must undertake the expense of inventing the wheel. Efficient administration of justice requires that courts encourage, not hamstring, information exchanges such as that here involved."

We must be vigilant in our efforts to prevent product manufacturers from surrounding our "wagon," forcing us to wage battle alone. Likewise, we must not give up the fight against the abusive process which has been fostered upon us by large law firms who intimidate plaintiffs' counsel by fostering dozens of associates upon us.

Never forget that you are not in this alone. The AzTLA along with the ATLA Products Liability Exchange, the Products Liability Reporter, and the Products Liability Section Newsletter are tremendous sources for information about virtually every product which has been exposed to litigation. The cloak of secrecy which product manufacturers seek to impose on plaintiffs, as well as the calculated and constant imposition of tactics which delay and frustrate the acquisition of vital discovery must be rooted out and defeated.

In most products cases involving a large number of documents, the preferable course may be to request an opportunity to conduct a computerized search of the defendant's databases in order to establish an inventory of available information. When a discovery request is made, the language of the request should be as clear and precise as possible. Thus, the plaintiff should use the defendant's company in-house language if at all possible. Challenges during the discovery process often center around the definition of the scope of inquiry and the identity of witnesses who were personally involved in relevant product design choices. One of the most perplexing problems facing litigants today is the fact that courts are unwilling or unable to give these discovery disputes the time and effort required to fairly resolve these matters. As the "step-child" of the judicial system, civil litigation is not a high priority for judges inundated with vast criminal documents. This means that motions must be succinct and essential if there is any hope for meaningful court intervention in this frustrating process.

Counsel often are faced with the dilemma of taking thousands of pages of technical internal documents and making them relevant to the case at hand. It's the proverbial issue: "Well, now that I have all these boxes of documents, what do I do with them?" The simplest way to accomplish this task is to depose a corporate representative, who can relate the design and testing records to the product model at issue. This is essential because of the plaintiff's burden of proving a correlation between the challenged design features and those which are the subject of the manufacturer's document analysis.

Expert Selection

Products liability cases are no longer capable of resolution by counsel hiring a local forensic scientist who, from his or her classroom, can redesign the product on paper and then do a laboratory test to confirm the efficacy of the design. Juries, judges, and our adversaries expect compelling evidence of product defect and causation. We are expected to employ a "team" of scientists with personal experience in the field of product design relevant to the case at hand. To prevail, we are placed in the unenviable position of having to become "mini-manufacturers," forced to redesign and rebuild the product to prove the efficacy of our alternative design. Computer wizardry has become a marvelous means available to litigants who are obliged to "reinvent the wheel." Using experts who can combine first-hand experience with the visual media of computer enhanced illustrations, the plaintiff's experts should be in a position to prove what happen in the accident event, how the product was designed to cause the injury producing event, and then establish the alternate features available to avoid the injury.

Trial Preparation and Presentation

A trial has a life of its own. Shakespeare was right, "all the world is a stage . . .," and we as attorneys are the directors (and sometimes we become the actors) presenting in a courtroom a true life drama. From selecting the cast (jury voir dire), to the choice of an opening monologue, and through the final interchange, the importance of "plot," "theme," and "motivation" remain prominent in the presentation of a case. How we present ourselves, the witnesses, and the evidence is just as important as what evidence we present. Equally critical to plaintiff's presentation is how you deal with the foreseeable defense evidence and arguments against your claim. As we orchestrate the trial, it is vital that plaintiff's theme of the case be constantly presented to the jury, during your case in chief and during the cross-examination of the defendant's experts. After all, the jury should never adjourn for the day without a reminder of what your case is all about.

Educating a Jury

Jurors learn in different ways. Key factors in learning include: (a) importance, (b) repetition, and (c) timing of presentation. The amount of information to be understood affects the rate of learning; the more to learn, the longer it will take to comprehend. And, the corollary of this premise is that the faster the data is presented the less jurors will remember. When you start a trial it is, in many ways, like bringing jurors back to school. Competing facets of this educational process are thoroughness versus boredom. Educating a jury may take several weeks when the issues involve complex scientific principles and their application to a convoluted accident event. Nevertheless, counsel must find ways to present the evidence so that jurors are motivated to listen and learn. To enhance perception, you must consider the effects of organization, clarity, subject matter, and presentation. Jurors will judge a litigant's method of presenting the evidence even before they judge the issues in the case. Select evidence which demonstrates the "objectivity" of your client's claim. Use all accident data, and try to make use of your opponents exhibits and theories to explain your case—take head-on the defenses' theories. During your case in chief have your witnesses answer all of the known arguments you expect the defendant to present; do not present your case wearing blinders.

Critical Components to Plaintiff's Objective of Controlling the Theme

Your client is a victim;
Your client had no idea that the product was defective;
Your client did nothing that was intentionally exposing himself/herself to harm;
The accident was foreseeable;
The aspect of the vehicle causing injury was predictable to the manufacturer;
Good engineering rather than bureaucratic compliance with government mandated safety standards is all that we ask for in the design of a vehicle;
The client's injuries are directly related to the failure of the product to provide a necessary measure of safety;
All sides hire experts who are in the business of testifying for a particular litigant;
Access to data and experts is not equal; manufacturers are the "Goliath" and you represent "David", attempting to slew the giant [a bit melodramatic but true];
Automobile crashes do not guarantee serious injury; rather injury is dependent upon safety design;
The "greater good" defense (i.e., "cost-benefit") does no "good" for your client, who is not a statistic, but rather he or she is a casualty of the "pencil pusher" mentality of determining compliance with government standards are no more;
The manufacturer of a motor vehicle has a "personal responsibility" to design and fabricate a well designed vehicle;
The Public Health requires that this wrong be righted; and
The "you're not alone theory" [each of us is a victim].

Conclusion

Litigation in the 90's was very complex, and the next decade will see even more significant challenges. Everyone involved with the process, including attorneys, witnesses, judges, and jurors are more sophisticated and cynical of the process we call "litigation." Counsel must remain vigilant to weed out unwarranted lawsuits, and pursue with a vengeance those meritorious claims which warrant our attention. By combining the sciences available today with the social mores that we can expect jurors to use (e.g., "personal responsibility") in judging products liability cases, we can continue to succeed in the representation of injured victims.