THE PRODUCT CASE: IDENTIFICATION AND INVESTIGATION
By Raymond P. Johnson
Make no mistake about it, prosecuting a product liability case can be difficult and costly. Your investment can total from ten to hundreds of thousands of dollars in advanced costs, and much more in attorney and paralegal time. Approach each case conservatively—from the very beginning. If necessary, enlist the aid of knowledgeable experts and coordinate with seasoned lawyers who specialize in product actions. Gather your resources: Without exaggeration, complex cases can require as much as two to twenty thousand hours of work, and early settlement is unlikely. You just don't want to choose the wrong case to prosecute!
I. Case Selection
Selecting viable cases and avoiding bad ones is crucial. Many attorneys have come close to bankruptcy by selecting—and losing—the wrong product liability case. Where liability is minimal or nonexistent, a case taken because of its multimillion-dollar damage potential alone can be ruinous. The cost of prosecution may add up to many hundreds of thousands of dollars in expenses and attorney services. Absent liability exposure, however, the case is unlikely to settle for anything near the investment made, and your client is likely to lose at trial. "Winnable" cases against defendants with little experience and relatively small damage exposure can also explode into nightmares when a losing defendant, through ignorance or misguided pride in its defective product, continues to fight doggedly through trial, appeals, and perhaps retrials. Even where final victory goes to you and your client, the expense, effort and investment may dwarf an ultimate recovery.
A. Case Evaluation
What is the single, most important thing to look for when selecting the proper case? A clear defect? Major damages leading to significant defense exposure? Undisputed causation? While all of these are important, none ranks as the most important factor in case selection and evaluation.
The absolutely crucial factor is your client, the plaintiff. Many a case with an evident defect, multimillion-dollar exposure to the defendant, or clear causation has been lost, despite dedicated and even valiant prosecution by trial lawyers. These cases were lost first and foremost because the jury was put off by the plaintiff's words, actions, appearance, or attitude. Product cases are difficult enough at best; be very hesitant ever to accept one with a client who is arrogant, or exhibits any persistent characteristic likely to preclude empathy by an otherwise just jury. On the other hand, a great plaintiff can help win a hard case. Although it may not be fair, it is true: Defective product cases can succeed or fail, depending on the plaintiff.
B. Client Meeting
The initial interview with your prospective client then is perhaps the best single opportunity you will ever have to evaluate the case from an overall viewpoint. You must conduct that interview in person, making the most of the opportunity to listen to and look at the client, and take detailed notes. In the end, trust your gut-level intuition. Many times, that reaction will be very similar to the feelings of most jurors as your client leaves the witness stand.
C. Evaluating the Product Defect and Causation
With complex product cases, initial evaluation goes beyond the client. If the case involves automobiles, trucks, aircraft, boats, new products, complicated machinery, or crashworthiness issues, a further step will probably be necessary. Before rejection or acceptance, contact a competent expert or an experienced products lawyer to assist in your assessment of the case. The primary issues—defect and causation—can be elusive because of the technical nature of the analysis required. For example, in a potential auto-tire-defect case, your client and the traffic-collision report may tell you that the entire outer tread separated from the body of the tire. Your initial evaluation requires much more information about the tire, however, which means that investigation and other litigation costs may easily run from ten to forty thousand dollars even at the outset of the case.
The involved vehicle, including all suspension and tire parts, should first be secured and preserved. A tire expert should then inspect the actual tire carcass and all components of the tire, including the separated tread piece. Only in that way will you ever know whether a true defect was at fault, or whether behind the case facts there lurk potent defenses. For example, with older tires, did the tread separation occur because of defective bonding by the manufacturer, or because large jagged objects or sharp nails hit and penetrated the tire before the mishap? If the first is true, a viable case may exist, but the latter scenario is fraught with defenses and, perhaps even legitimate finger-pointing at "the plaintiff's misuse" by the manufacturer.
On the other hand, take the example of a woman who is found quadriplegic and not wearing her seat belt at the scene of a single-vehicle rollover crash (no witnesses). Further assume that the vehicle structure crushed very little during the rollover, and that the client remembers nothing about the crash, except that she was driving at night when the vehicle went off the road for apparently no reason. She may even have told the police, "I guess I fell asleep."
At first look, this case appears to be a tragic injury with little or no liability for the manufacturer, and significant comparative fault. But, as in most, if not all, complex product cases involving catastrophic injury, a closer look is needed. In this case, a suspension expert may find that an obscure component of the suspension or steering system failed, causing the initial loss of control. A seat-belt expert may determine that the seat belt unlatched because of its defective design (e.g., a release button with unreasonably dangerous exposure to impact by objects during a collision). And a biomechanical engineer may confirm that the driver's door latch failed during the rollover, inadvertently opening the door and causing your client to be thrown from the car. She then landed on the back of her head, suffering spinal cord damage and paralysis. Obviously, with this additional information, your case evaluation will change. The lesson: if catastrophic injury is involved, (1) never reject a product case, or (2) pursue only a third-party-negligence claim (where funds are likely to be inadequate to satisfy the judgment), without first consulting the appropriate experts, or at least having an experienced products lawyer review the case. At that point, you will be in a position to make a reasoned decision about whether to reject, accept, or refer the case.
A. The Need for Investigation
Good investigation can be the bedrock of a products liability case. No investigation can be the death knell. Because products liability litigation is so fact-dependent and fact-intensive, facts alone can make or break the case.
Product cases, by their very nature, begin with a serious injury or significant property damage. That event, and the facts surrounding it, become the mainstay of the litigation: Each case is different, and may involve an airplane crash, a meat-packing machine or automobile collisions. You can count on certain things to be the same, however, in every case: the injury scene will always involve the product and the victims, sometimes even a witness or two.
Another thing that remains the same: the defendant will always blame "operator error." The driver of one of the cars, the pilot of the plane, the operator of the machine will always have the defendant's finger pointed straight at him. After all, if it's not operator error or someone else's fault, the jury might conclude the product was defective and caused injury; the defendant would rather perish the thought.
In any event, you need early answers to certain questions: Where is the product? How do you preserve it? Have other injuries occurred with this product or similar ones (foreseeability-notice)? Do witnesses and others confirm your client's version of the facts (comparative fault-causation)? Had the particular product in this case been altered or modified by others since manufacture (misuse-alteration of product)? Has the design of the product changed over the years (subsequent remedial measures)? Do similar products exist with safer designs (feasible alternative designs)? Were proper warnings or instructions provided with the product (failure to adequately warn)?
In most cases, questions like these and others can be answered through thorough investigation. Whether the case is simple or complex, some initial investigation is necessary to adequately evaluate it and make informed decisions before investing countless hours, significant resources, and very substantial advanced costs in a product liability action.
B. Who Should Conduct the Investigation?
If at all possible, involve yourself personally in the investigation. Even in a simple case, you should direct and guide the investigation. When delegating tasks to investigators and other staff, stay aware of what is being done at each stage, and ask for periodic progress reports that emphasize the important items.
Never leave case investigation totally to an investigator. While good investigators can be invaluable, never let them make ultimate decisions regarding what information is or is not important, and what leads should or should not be followed. If you retain an investigator, be thoroughly familiar with his credentials and his experience with product liability matters.
Whenever possible, inspect the actual product yourself, and try to visit the injury scene and assure yourself that all physical evidence is gathered and preserved. And although investigators and paralegals can be very helpful, stay personally involved in the production of any videotapes or photographs that will possibly be used at trial. By being involved you will ensure that the videotapes and photographs contain only information that you want shown to the jury, not matters that may prove prejudicial or affect admissibility.
At a minimum, incident reports and any existing official photographs of the injury event or loss should be obtained and reviewed. Police, paramedic, ambulance, and emergency room records should be inspected in detail. Often, admissions by the client and others show up in such reports, as do the names of additional witnesses.
You and/or your investigator should of course quickly locate and take control of the product that caused the injury. After a careful examination of it and of any photographs, you should be in an excellent position to get in touch with potential experts who can help formulate an ultimate decision on whether to accept or reject the case. While you deal with the experts, your investigator should locate and interview at least the key eyewitnesses to the injury event. These witnesses can be crucial to the evaluation of the case, its potential for settlement, and ultimately, the trial.
III. Identifying the Viable Case: Use of Experts
Products are getting technologically more complicated all the time. Defects—such as electromagnetic incompatibility that causes automobiles to accelerate suddenly, gyro malfunctions that can make airplanes crash, and radiation mishaps that cause microwave ovens to leak—transcend everyday knowledge, yet pervade everyday life. Lawyers for injured plaintiffs must prove to untrained triers-of-fact that the defect in a complex product caused injury and that other factors did not. A lawyer's resource for this is the expert; and the proper evaluation of a products case can turn directly on finding and using the right experts.
A. Searching for the Right Experts
An effective way to select experts is to do it from your own past experience. Attorneys with less experience or seasoned litigators whose past experts have retired or opened restaurants, need only inquire from other lawyers. If the case involves highly technical issues and requires multiple experts, a specialist lawyer who has handled similar cases may be your best resource. Specialists such as this usually have had multiple trial experiences with similar cases, and sometimes hold engineering degrees and other special qualifications themselves.
In situations with complex products, hotly contested liability, or severe, permanent injuries, consider referral to or association with such a lawyer for the prosecution of the liability issues of your case. These attorneys know appropriate experts and the best ways to prosecute the action.
The second best resource: ask the first expert you retain—assuming she or he proves knowledgeable about the issues and experienced in litigation—to recommend other needed experts. Excellent experts tend to know other excellent experts; they publish, lecture, and work together in research, testing, and litigation settings.
Other methods are also available. A helpful source is the Exchange Expert Witness Database at the Association of Trial Lawyers of America (ATLA), a computerized listing of experts that ATLA members can use. Other computerized research aids can also be helpful. DIALOG of Dialog Information Services in Palo Alto, California is a large computer-base with considerable technical information, including papers, authors, and noted authorities. Additionally, WESTLAW offers a database called Forensic Services Directory that includes the names and addresses of many prominent scientific experts.
You can also find experts by reading patents or technical articles on your product and contacting the authors. In addition, universities and colleges are excellent places to find experts. You may have to "create" and orient an expert from such a faculty, but finding the right expert at a nearby institution and presenting someone from the local community may save time and money and impress the jury.
B. Selecting the Expert(s) You Need
Seek the experts with the best credentials for your particular issues. Credentials can take the form of education or experience. In an ideal world, you would want individuals with the highest-level diplomas and the most direct experience. For example, Ph.D.'s with 20 years of experience in fuel tank design do nicely in Pinto-type cases.
Often you will have to trade off educational achievement for quality work experience. Even in the most complex design-defect cases, you can give up the doctoral and even master's degrees if the experts have solid work experience directly on point.
Almost as important as education and experience are character and demeanor. The right experts need to blend background with effective, believable presentation. You cannot accept one and not the other without taking on significant risk. Regardless of how often and hard you work with an expert—even in a long case—you are as unlikely to change his personality and communications skills as you are his education and experience. Do not overestimate your ability to do so.
The character and demeanor of the expert witness are absolutely critical to the success of the case. Select an expert who is articulate, credible, sincere, and able to teach.
With proper investigation and the right expert(s) you are now ready to make the all-important decision to accept or reject the case. A correct decision will benefit you and your potential client; the wrong decision will be hurtful to you both. Choose carefully, and prosecute to the hilt. Justice will follow.
||For a more detailed explanation of proper investigation in the complex product liability case, see R. P. Johnson and M. Eidson, Defective Product: Evidence to Verdict (Lexis Law Publishing, 1997), Chapter 6.|
||For additional information on expert selection and product liability experts in general, see id. at Chapters 2, 6 and 7.|