July 31, 2017

Product liability: Don’t let plaintiffs stack the deck

Mounting a defense in product liability lawsuits has become more challenging as the plaintiffs’ bar has grown highly organized. Information sharing among plaintiffs’ attorneys has become a widespread practice that effectively requires defendants and their insurers to exercise equally organized document management.

The same experts frequently appear against the same product defendants in multiple cases. As a result, these experts often try to rely on information that has been shared from other cases or that they themselves have received or reviewed in other unrelated litigation.

In the past, defendants in product liability lawsuits generally had a significant advantage in their knowledge of the product, its design and performance. Now, plaintiffs have access to extensive databases of documents from prior or existing litigation. Knowledge of the product – and claims alleged in other lawsuits -- no longer resides principally with manufacturers.

Where are plaintiffs getting this information? A litigation group of the American Association for Justice, formerly known as the American Trial Lawyers Association, is a major resource for plaintiffs’ attorneys when it comes to trial documents, strategy and tactics. The Attorneys Information Exchange Group Inc. (AIEG) collects and makes available, for a fee, vast databases of information relating to product design and safety, ranging from automotive vehicles to consumer products.

According to AIEG’s mission statement, the group is “a national organization dedicated to sharing information, experiences and effective litigation practices among its member attorneys for the benefit of clients who are the victims of dangerous and defective products.”

AIEG’s roots go back to the early 1970s, when Ford Motor Company faced lawsuits alleging design defects in the gas tanks on Ford Pinto cars. The tanks were susceptible to fires and explosions in rear-end collisions. In Grimshaw v. Ford Motor Co., the California Court of Appeals upheld an award of $2.5 million in compensatory damages and $125 million in punitive damages. A key witness for the plaintiff in Grimshaw was a former Ford employee who testified that Ford management was aware of test results showing the Pinto’s gas tank was vulnerable to rupture in collisions and that Ford executives in internal meetings chose to defer correcting the problem.

Significant advances in automobile safety have been achieved in the decades since the Pinto litigation, but a reality is that sensitive, often confidential, proprietary and/or trade secret information, obtained in written discovery and deposition testimony and shared with other plaintiffs, can influence future litigation and make defenses more difficult. Knowledge of defendants’ actions in prior litigation can also lead plaintiffs to petition courts to compel defendants to produce certain documents and move for sanctions if a defendant’s discovery practices in one case do not mirror that of another which plaintiffs deem a prior “similar” case.

How to avoid the pitfalls of sharing

Defendants in product liability cases must take appropriate steps to avoid the pitfalls of sharing, such as:

Seek protection of proprietary and confidential documents. Before producing proprietary information in written or testimony form, defendants should seek the entry of a strong but fair non-sharing protective order that governs the entire case, including all parties and their experts, and requires the return of the proprietary information at the conclusion of the matter. Without such protection agreed to or issued by the court, the material can, and likely will, be retained and shared by plaintiffs’ attorneys.

Limit the scope of discovery. Most product liability cases only involve one product made in one plant or location during one time period. However, plaintiffs will often seek discovery on dissimilar products for unreasonable periods of time. This tactic is sometimes employed for the subject case, but can also be used to share or exchange information with other lawyers handling other matters. Fortunately, however, many jurisdictions limit discovery in product cases to the product at issue and only those products that the plaintiff can prove are “substantially similar.” Defendants should seek to limit the scope of the discovery sought by plaintiffs to the one product, plant and time frame at issue and be prepared to establish that the “other products” that plaintiffs want to discover are not “substantially similar.”  

Avoid haphazard or incomplete electronic documentation. Defendants should take all reasonable steps to ensure that product documentation is complete, organized and in a searchable form. Printed manuals and other information in analog formats that relate to a product, for example, may be helpful to the defense – but only if they are properly Bates numbered and digitized. This will also allow for easier tracking of information that may have been shared either properly or in violation of a protective order. Another advantage for defendants is easier compliance with electronic discovery rules, especially the preservation of data. The consequences are significant; non-compliance with e-discovery can lead courts to issue costly sanctions. To the extent that electronic discovery contains confidential information, such documents and information should not be allowed to be electronically stored or transmitted (via email) by plaintiffs because truly and completely deleting hard drives is extremely difficult. Confidential electronic information should only be produced on external storage devices, such as hard drives, thumb drives or CDs such that they can be properly returned and accounted for at the conclusion of the case and not retained and shared in the future.

Proper witness preparation. The importance of witness preparation cannot be overstated in product liability cases. For plaintiffs’ attorneys preparing to depose a corporate representative or expert, it is common to seek out prior testimony of the witness from others willing to share. For the defense, it is paramount for witnesses to tell a clear, consistent story that supports the defense’s arguments, not only when deposed by plaintiffs’ attorneys but throughout the course of a trial and from case to case. To the extent that company and expert witnesses have testified previously, especially in a similar matter, the defense must assume that plaintiffs’ counsel has reviewed or is otherwise familiar with that prior testimony and the witness must be prepared accordingly. To the extent that there are subtle nuances between the current and prior matters, the details must be fully explored before the witness is sworn in. Notably, video depositions are becoming more common in trials. Therefore, the importance of properly preparing a witness before a deposition is more relevant than ever. No longer can the defense rely on the opportunity to “fix the testimony” live at trial.

Challenging expert witnesses. The same experts frequently appear against the same product defendants in multiple cases. As a result, these experts often try to rely on information that has been shared from other cases or that they themselves have received or reviewed in other unrelated litigation. Often, this information has been deemed confidential in those other matters and is limited to being used in that other case. Thus, these experts try to “share” information with themselves and then rely on it even though they can’t or won’t disclose it in the instant case due to its protected status. This should not be, and usually isn’t, allowed.

Rules of civil procedure permit the defense an opportunity to prevent expert witnesses from offering unreliable and baseless opinions. Obviously, an opinion based on information that cannot or will not be disclosed, is baseless and unreliable.

The predominant standards for the admissibility of expert testimony that are binding on federal courts were established in Frye v. United States, 293 F. 1013, 1014 (D.C. Circuit 1923), and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 588 (1993). The Frye standard simply asks whether an expert's methods in reaching his or her conclusions are generally accepted in that person's relevant scientific community. Daubert goes well beyond Frye, in essence making trial court judges the arbiters of admissibility based on four factors:

  • Whether the theory or technique can or has been tested;
  • Whether the theory or technique has been the subject of peer review and publication;
  • The rate of error and the existence of standards for a particular scientific technique; and
  • Whether the theory or technique is generally accepted.

Of note, while the US Supreme Court's opinion in Daubert regarded scientific testimony, in subsequent cases, the high court and other federal courts have suggested that Daubert can apply to non-scientific testimony. Frye has been applied mainly to novel scientific theories, principles or techniques.

State courts have not uniformly adopted these federal standards, though an increasing number are recognizing Daubert. According to The Expert Institute, state courts in 18% of states follow the Frye standard -- including California, the District of Columbia and New York; while 76% follow Daubert. The remaining 6% of states -- including Nevada, North Dakota and Virginia -- recognize a combination of the two or another standard.

From protective orders to scope of discovery to witness preparation to evidence analysis and general defense strategy, defendants in product liability cases, and their liability insurers, have a lot to consider. Meanwhile, the plaintiffs’ bar is aggressively sharing information, becoming more educated and making it more difficult to defend the product at issue. Working with highly experienced and expert counsel is essential to providing every possible advantage to the defense.