By: Wylie Aitken & Richard Cohn
It is often useful, if not essential, to employ unique and creative discovery and investigation tactics in Products Liability cases. Equally important, however, (but frequently overlooked even by experienced attorneys), is the need to perform simple, common-sense and basic discovery in order to prove up one’s case at trial. This article points out several important basic strategies and ideas that are essential to any products liability case. In addition, a few unique and creative discovery/investigative tactics are briefly touched upon which have proven useful in a variety of products liability scenarios.
Know Where You Are Going
While it may seem like common sense, many attorneys overlook the need to formulate their products liability case investigation and discovery strategies by focusing first on what specific law will ultimately apply to the case at trial. It is absolutely essential to review the products liability jury instructions that will likely be given to the jury should the case go to trial before beginning investigation and discovery. It is also useful to research and understand the rules of evidence unique to products liability cases at the outset of the case in order to familiarize oneself with the types of evidence that should be sought through discovery and investigation that can ultimately be used at trial in products liability cases. In essence, before embarking on the journey, one should look at the road map of where he is going first. This will prevent one from potentially missing an important opportunity to gather evidence through investigation or discovery that one might otherwise not even know is relevant or material to the case.
For example, in the most general of terms, in a design defect case one needs to review BAJI 9.00.5 carefully at the outset of the case. Keeping in mind that strict liability is in essence liability without fault (although proving negligence or conscious disregard for safety is certainly helpful) one should realize that his case will still have merit even if negligence cannot be shown, so long as discovery is performed with the appropriate focus on the specific elements of the design defect jury instruction itself. Deposition checklists, written interrogatories, requests for admissions and requests for production of documents and things should then be formulated with the goal of obtaining information which proves that which is required by the applicable instruction.
While the above would seem patently obvious, it is amazing how many practitioners fail to put the concept to work in actual practice. Using the design defect example again, BAJI 9.00.5 requires that plaintiff prove at trial:
1. That the defendant manufactured/designed, supplied, etc. . . . the product. (This is usually easily proven with a simple request for admission. In addition, however, all of the methods of discovery can be employed to obtain defendant’s admission or stipulation to this simple fact.)
2. That the product possessed a “defect in design” which is defined as either (a) the product’s failure to perform as safely as the ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or (b) if the risk inherent in the product’s design outweighs the benefit of the design. (This is the key element of the instruction and the greatest portion of discovery will need to focus in on this element. The instruction goes on to enumerate specific factors in determining whether risks outweigh benefits in the design — and each of those specific factors should be the specific target of both investigation and discovery.)
3. The defect in design existed at the time it left the manufacturer, supplier, etc. . . . (Caution: Many practitioners overlook the need to actually present evidence to the jury, and gather that evidence in discovery, to prove this normally simple point. Additionally, however, many older products are altered in substantial or material ways and discovery must be performed to trace the entire history of the product’s maintenance, use, replacement of parts. etc. . . )
4. The defect in design caused the plaintiff’s injury. (This element can be extremely simple to prove or extremely complex depending on the type of case. For example, in a complex seat belt design case with a deceased ejected passenger, proving that the failed seat belt and subsequent ejection, rather than the impact of the accident itself, caused the death might be the key point of contention. A wisely thought out discovery plan would therefore include depositions to obtain in-depth analysis of coroner’s reports, wreckage inspection, etc. . . in conjunction with biomechanical expert consultation to provide the attorney guidance on what facts should be looked for.
5. The injury resulted from a use of a product which defendant could reasonably foresee.
(This includes foreseeable misuse, foreseeable comparative negligence, foreseeable momentary forgetfulness by the product user, etc. . . These foreseeable uses and misuses should all be the focus of discovery when deposing designers of the product. Did the product’s designers foresee obvious potential misuses or potential dangers if the product user momentarily forgets to be vigilant or accidentally slips, trips or otherwise places himself or a part of his body in harm’s way? Did the manufacturer/designers fail to foresee obvious dangers? Did they foresee the danger but fail to take precautions to protect against the dangers?
It is easy to see how, by carefully reviewing the jury instructions pertaining to design defect or to the other theories of products liability, one can come up with a lot of obvious as well as creative angles to approach investigation and discovery. Deposition check lists can be formulated and used in case after case, tailoring questions for specific situations. A sample products liability deposition check list prepared over the years by our law office is attached as an example. While it is not necessarily all inclusive, it is useful as a tool in pointing the attorney in the right direction in various areas of discovery specific to products liability. And, it need not be used solely for depositions — it can and should be used to focus investigation before filing suit, as well as to aid in crafting written discovery.
Don’t Expect Defendant To Be The Source of Helpful Evidence
Products liability cases, and particularly design defect cases, often provide the plaintiff’s attorney with some very fertile sources of helpful evidence which come from a variety of entities other than defendants. Industry/Trade magazines with articles and advertisements regarding innovations, problems with various products and remedies to those problems, can be invaluable as a source of evidence, experts, and clues on what issues need to be addressed in a case. For example, the elevator industry has a widely circulated publication known as Elevator World magazine which has articles on safety, innovations, code changes, and virtually any aspect of vertical transportation and escalators you could think of. It publishes a yearly “source” guide listing hundreds of experts and consultants in every imaginable area of specialization of the elevator industry. It also publishes a long list of “educational materials,” books, pamphlets, code books, etc. . . that can be useful in virtually any case involving injury to a passenger or mechanic in an elevator setting. After you get the “inside scoop” on the industry specific to your case, you can then conduct discovery and depose the defendant product designers and hold them to their own industry standards.
Additionally, public governmental entities as well as industry specific entities are essential sources of information in products liability cases. Obviously, without even scratching the surface, one could never truly do a thorough job on an auto design defect case, for example, without getting information from NHTSA regarding crash testing data, FMVSS compliance and requirements, prior incidents/complaints similar to your case, etc. . . . An aviation products liability case could not be properly handled without seeking FAA, NTSB and other essential information. An attorney handling an elevator design defect case involving an injured worker should look to Cal-OSHA, local building and safety inspection entities, etc. . . . Indeed, virtually any time a worker is injured by an allegedly defective product on a job site, there are almost always specific product industry related and public entity promulgated standards, codes, etc. . . ., which are applicable, and union, OSHA and other public entity accident investigators more than willing to point you in the right direction.
It is also often very helpful to perform a patent search on certain products to determine, for example, if the manufacturers or other manufacturers of similar products have developed cost effective methods of remedying dangerous conditions and problems which have caused injury.
On this note, it is important to remember that in products liability subsequent remedial measures, code and regulation upgrades, or even industry wide recommendations or changes which are aimed at eliminating the product’s condition which caused your client’s harm are all admissible at trial to show, among other things, the mechanical feasibility of a safer alternative design of the product. Thus discovery aimed both directly at the defendant, as well as investigation and discovery industry wide, regarding subsequent remedial measures is all fair game.
It must also be kept in mind that attorneys who have previously handled similar cases against the same defendant you now face can be your greatest source of information. For example, even if you are handling a design case involving a Honda Accord, it will help to contact an attorney who handled a case against Honda involving a Prelude — as it turns out much research and design for the vehicles overlapped. Further, the layers upon layers of Honda’s corporate entity shell game can be exceedingly frustrating — and it can be very helpful to know who to sue in the first place, rather than having to name Doe defendants after months of discovery. If a federal preemption claim by the defense is looming in your future, others who have already fought the battle can be lifesavers. By contacting ATLA, or by consulting jury verdict and settlement reports, you can virtually always find someone who has already been down the path upon which you are about to travel. Also, do not overlook the opportunity to contact former employees of the defendant who may be willing to provide you with inside information.
It should also be emphasized that discovery in products liability should focus on the defenses that defendant will raise in summary judgment motions, in motions in limine, and at trial. If you are likely to see a federal preemption claim, don’t wait for it to come to you. by way of summary judgment Rather, go into it in discovery to determine the facts and legal contentions upon which any preemption claim will be based. That way you can gather the facts and do the research in a timely manner to be prepared to best fight the claim when the time comes to do so.
Discovery and investigation in products liability cases are essential tools in developing case themes. It is essential to know and understand from the outset of the case exactly what law will ultimately be given to jurors at trial — and to focus discovery and investigation on developing evidence to satisfy the elements stated in the applicable jury instructions. Along with this seemingly basic, yet often overlooked point, the attorney handling a products liability case must also realize that the source and type of evidence that can be used to prove up the basic elements of the case often does not come by simply directing discovery solely at the defendant. Numerous industry specific/trade specific sources of information are readily available if you just scratch the surface. Public officials, OSHA investigators, accident investigators of all types, union representatives, and many other individuals related to specific case types are also available and often volunteer their help. Do not overlook the many opportunities to obtain discovery and investigational information from all of the sources discussed in this article — and furthermore be aware that in most cases there are many available sources of information which this article has not even touched upon. Creative efforts to develop information from unique sources virtually always yields great reward.
Contact Aitken * Aitken * Cohn today to learn more.