SEQ CHAPTER \h \r 1Evaluating The Products Liability Case
Michael F. Imprevento, Esquire
Thomas J. Curcio, Esquire

Breit, Drescher & Breit Cohen, Dunn, Curcio, Keating 1000 Dominion Tower & Rohrstaff, P.C
999 Waterside Drive 221 South Alfred Street
Norfolk, Virginia 23510 Alexandria, Virginia 22314I.

Preliminary Considerations

- Seriousness of Injury - given the expensive nature of a products case, in most cases, the injury must be severe or fatal to justify going forward.

- Availability of sufficient coverage from other tortfeasors - if the injury was caused by the actions of two or more defendants, consider whether there is sufficient coverage from the non-product liability defendant.

- Novelty of claim - is the defect one that has been litigated and established elsewhere or is it novel- i.e. rollover of an older model utility vehicle vs. challenge to a new product.

- Evaluating case with recognized defect is easier since:

- attorney network to consult

- experts easier to find

- track record of result - i.e. verdicts or settlements

- Possession of Product - Does the potential client have possession of the product and has it been preserved? What will it cost to preserve the product?

- Cost - products cases can be very expensive. Can client pay the costs, can you afford to advance (and lose) the costs.

- Time commitment - product cases are time intensive, both presuit and to litigate, consider effects on other cases;

- Statute of Limitations - how much time is left on the applicable statute of limitations. Sufficient time is needed to locate experts, determine the defect, and to identify the correct corporate defendants.

- Lawyer’s background/experience/interests - is the product one that you have some experience with or do you have training that enables you to better understand the product and evaluate your case.

II. Initial Evaluation

- Client or witness interviews- not only is it important to assess the potential jury appeal of your client, you will have to assess the credibility of the individual and the circumstances which led to the injury. Obtain from the client critical information concerning his usage of the product, awareness of hazards, consideration of any warnings or instructions, instructions from his employer, and other pertinent information which will help you evaluate the relative weaknesses and strengths of the case at the earliest possible time.

- Factual investigation - to further evaluate the case, you must determine and evaluate the facts. To do so, you should interview eyewitnesses, obtain and review all reports, (i.e. police reports, worker’s compensation reports, ambulance reports, emergency room reports, autopsy, death certificates, review photographs, initial medical records), and interview investigators (i.e. police).

S To the extent permissible, especially with consumer products, (automobiles and the like), secure the product and discuss the financial feasibility of having the product stored at an appropriate time. In an auto case, contact the insurance carrier immediately that has the right of salvage over the vehicle and make arrangements to have it inspected. The vehicle should be maintained as if opposing counsel were in the case at that time so as to avoid potential issues of spoilation.

- Inspect Product - inspect the product yourself and consider having it inspected preliminary by an expert. Some experts are willing to do a preliminary examination and give an initial report for a set fee. Have the expert take photos and/or video. The more time goes by, the less likely an effective investigation will take place. S If the product is in the hands of an employer, obtain the permission of the employer to inspect the product immediately and request, with the cooperation of the compensation carrier that the product not be altered, spoiled, or sold until further order of the Court. Counsel may well commence an equity proceeding which could lead to injunctive relief against a non-cooperative employer or other person in possession of the product which has injured your client so as to preserve the product until further notice. Orders such as this have been entered.

- NOTE: Spoilation of Evidence - be wary of doing anything to the product, i.e. disassembly - that will enable the defense to later raise a spoilation argument. Spoilation will likely be considered an issue of leveling the evidentiary playing field and damage to the product caused by your expert or by carelessness could well lead to very serious problems. i.e. summary judgment for defendant; adverse inference instruction. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995); Bolling v. Montgomery Ward & Co., Inc., 930 F. Supp. 234 (W.D. Va. 1996).

- Manuals, instructions, warranties - all literature relating to the product should be obtained and reviewed. Make certain product was being used consistent with instructions, that product was properly maintained, and applicable warnings were followed.

- Determine what standards apply to product, i.e. Federal Motor Vehicle Safety Standards; American National Standards Institute. Compliance with a standard is not a defense; breach of one is strong evidence of a defect. Compliance with standard is an argument that you will have to address at trial.

S Any lawyer who is not willing to go out into the field and get dirty in the evaluation of these cases has no business handling products liability cases. Sending investigators to the scene and relying on the judgment of an investigator as to what happened and the ramifications of what happened is inappropriate. An attorney must review the product, interview witnesses, and get a feel for the situation as quickly as possible.

S The majority of products cases will arise in a workplace setting. It is important, at the earliest possible time, to obtain the cooperation of the workman’s compensation carrier (you must convince them that assisting you will help them recover their lien) in order to gain access to witnesses, the product itself, instructions, and other information which will be important.

S Many times employers will have a negative view of the employee’s conduct as they try to avoid workman’s compensation exposure by trying to establish that the worker violated safety rules, or they will be defensive about having an attorney on the premises because they do not understand that they are not amenable to suit and they may have altered a warning, removed a guard, or done something to the product.

S You must obtain the cooperation of the employer if at all possible and utilize the workman’s compensation carrier to communicate that the employer is not amenable to suit and issues of sophisticated user or alteration or misuse of the product must be dealt with to try and determine if the alteration was foreseeable to the manufacturer, or was invited by the manufacturer.

S If there has been an OSHA or workman’s compensation investigation of the accident, these files must be obtained and reviewed immediately by use of FOIA or simply the cooperation of the workman’s compensation carrier. It is our experience that many times the workman’s compensation carrier may retain its own engineer in order to review the product or the incident at the direction of the defense counsel who normally does workman’s compensation defense. This is a recipe for disaster. First of all, the compensation carrier’s counsel is consistently thinking in terms of defenses and many times does not have an understanding of a third party products liability case. Many times an engineer will be given a very strict mandate which will not be exceeded. A non-creative view of the situation has led on many occasions to paperwork being created which establishes that there is no third party products liability claim. I have personally handled several cases where this is the case and have obtained judgments. The worst individuals to do preliminary evaluation of these claims are defense lawyers and engineers who are not given a proper mandate and are not allowed to view these cases considering the issues of foreseeability and the limited defenses available to a manufacturer under applicable Virginia law.

S OSHA investigations only evaluate the conduct of the employer. There is no jurisdiction by OSHA to review the propriety of the manufacturer’s conduct. Many times issues of proper guarding or warning are overlooked despite the fact that OSHA has recommended that an employer be fined. Again there has been very successful cases which have been litigated in an atmosphere where OSHA has fined an employer for an unsafe workplace condition. Although these issues will come up at trial, Virginia law involving intervening and superseding cause and other issues of foreseeable misuse will lead to jury issues in cases even where an employer may have engaged in an unsafe practice. Joint and several liability considerations assume this.

S If you are in the case at an early stage, convince the compensation carrier to assist you financially with your review of the case, and allow your expert to go in with the compensation carrier’s assistance. Ensure that this aspect of the file is not included in the general workman’s compensation file which may be discovered later by way of subpoena duces tecum. The workman’s compensation carrier enjoys the same attorney-client privilege that anyone else would with respect to its own internal review of potential third party claims. If a separate privilege file is maintained and you have the cooperation of the carrier in an unfortunate workplace incident, you will insulate these thought processes from discovery at a later time. It will be important, however, to ensure that the product is not spoiled, altered, or destroyed so that the defendant cannot obtain these type of reports under an exception to work product or attorney-client privilege.

III. Networking

To further evaluate a products case, you should consult the following:

- Other lawyers who handle products cases;
- ATLA Exchange-(800) 344-3023, (202) 965-350, ext 515, and http://exchange.atla.org;
- AIEG (Attorney Information Exchange Group), 651 Beacon Parkway West, Suite 115, Birmingham, AL 35209, (205) 945-4860;
- ATLA Products Liability Law Reporter - Monthly publication, contains case summaries by product; recall information; websites for product related information; and information on plaintiff/defense experts; names of plaintiff/defense lawyers; and
- Virginia Lawyers Weekly trial reports.

IV. Expert Consultation

- Through speaking with other lawyers, and checking sources listed above, you will locate potential experts. Several things to keep in mind when selecting an expert:
- obtain feedback from lawyers who have used the expert;
- obtain C.V.;
- determine charges/retainer;
- determine amount of litigation experience;
- determine whether expert is an advocate or is objective- (Advocates are to be avoided);
- determine whether expert will do a preliminary evaluation; and
- determine whether expert respected by other experts.
- In the post Daubert world, it is important to understand that it is no longer sufficient to simply examine the expert’s Curriculum Vitae and qualifications in order to ensure that the person will be able to testify on an issue of mechanical engineering, warnings, or other issues relevant to a products liability case. A Court must now also be convinced that the witness is relying on information normally considered by such an expert and came to his or her conclusions in a manner consistent with that used by real experts in the field of study. Therefore in selecting an expert, the attorney must scrutinize the methodology the expert used to reach his conclusions and determine whether that methodology has been validated by scientific technical literature or other methods which are used by the reasonably prudent practitioner in that field. It is therefore necessary to determine whether this expert is one that has been given a favorable recommendation by other attorneys who practice in the area of products liability law. It would also be important to determine if that individual has ever been the subject of a “gatekeeper” motion in a Federal Court which led to that experts testimony being excluded or modified by a District Judge. Many products cases will be removed to Federal Court by virtue of diversity of citizenship and it is important that the expert be selected with this criteria in mind.

Dealing with experts:

- establish clear understanding regarding fees and scope of work;
- recognize that documents provided expert are potentially discoverable;
- In the post Daubert world, we must force our experts to utilize literature and other relevant data in the field to augment and supplement the expert’s opinions. Any expert retained should be encouraged to immediately engage in a thorough literature search or to utilize information obtained through other litigations so as to provide a foundation for the expert’s opinion.

V. Elements of Claim to be Satisfied

(See Chapter 34 Virginia Model Jury Instructions)

- Theories of Liability - Three theories of liability apply in product liability cases in Virginia: negligence, breach of implied warranty; and breach of express warranty. Regardless of the theory plead, the plaintiff must prove: (1) product was unreasonably dangerous either for its intended or reasonably foreseeable uses, and (2) the unreasonably dangerous condition existed when the product left the manufacturer’s hands.
- Note: That the defect may be one of improper design or improper manufacture. A failure to warn of an unavoidable hazard which is not obvious or readily discoverable is actionable.
- Virginia’s Breach of Warranty Claim has been deemed to be the functional equivalent of a strict liability claim but with one important modification. Assumption of the risk and contributory negligence are not available as defenses. In a breach of warranty case in Virginia, the defendant is only allowed to plead and prove the defenses of misuse or open and obviousness, Wood v. Bass Pro Shops, 250 Va. 297, 462 S.E. 2d 101 (1995). Differences between misuse and contributory negligence can be important because although there is no such thing as the doctrine of “unforeseeable” contributory negligence, misuse presents a situation where the defendant would still have the duty to manufacture and sell a product that was reasonably safe for its foreseeable and intended uses. Certain uses that were not intended by the manufacturer of the product but which are nonetheless foreseeable to that defendant can still be the subject of an award in favor of the plaintiff. The greatest mistake made by counsel in screening out these cases is assuming that a consumer or industrial worker made a “mistake” in using the product, and that will be a bar to recovery. Nothing could be farther from the truth. In modern products liability jurisprudence, there is an understanding that the defendant is in a greater position to understand risks associated with foreseeable uses of the product and is in a better position to take the steps necessary to reduce those risks and hazards.

How to prove the product was unreasonably dangerous:

S In Federal Court, the prevailing cases seem to indicate that the plaintiff must show that there was a departure from an industry custom or standard or that the product disappointed consumer expectations. It has been difficult to ascertain what the Fourth Circuit means by the term “disappointed consumer expectations”. The Court has indicated that this can be divined through relevant literature or what it calls “direct” evidence of disappointed consumer expectations. This may be in the form of surveys, focus groups, or other direct information, including perhaps information from a plaintiff’s employer that a particular product design disappointed its performance expectations. With respect to products not covered by an industry custom or standard, it has been the determination of the Fourth Circuit that expert opinion which has been arrived at with appropriate methodology can allow the Court to ascertain the appropriate safety standard. Since many products are not covered by voluntary industry standards, good expert opinion is important. Where industry customs or standards do control a product, it will be important for the plaintiff to show a departure from those standards or at least show that the standards themselves are unreasonably dangerous so as to allow the case to get to the jury. Although the Fourth Circuit indicates that this is the Virginia law of products liability, the Virginia Supreme Court in Morgen Industries v. Vaughn, 252 Va. 60 (1996), and Jeld-Wen, Inc. v. Gamble, 256 Va. 144 (June 5, 1998) have consistently used just the simple formulation of “unreasonable dangerousness” as its applicable test for product defect. It is believed that an expert who testifies in a Virginia state court that a product contains unreasonable hazards and that the risks of the product outweighed the utility of the product it would seem that the case should go to the jury. There is no such decisional test as set forth by the Fourth Circuit in Alevromagiros v. Hechinger Co. 993 F.2d 417, 420 (4th Cir. 1993), but it would appear that both plaintiff and defendant are free to argue a variety of theories under the general heading of “unreasonableness” or “reasonableness”. It also appears that Virginia state courts would hold that compliance with an industry custom or standard does not automatically absolve a manufacturer if there is other evidence that the product is not reasonably safe. Featherstone v. Firestone Tire and Rubber Co., 219 Va. 949, 252 S.E.2d 358 (1979).

VI. Defenses to Products Liability

- In addition to failing to satisfy the elements of a prima facie case, the defenses to a products case are as follows:

1. Contributory negligence bars a negligence claim, but is not a defense to a warranty claim. V.M.J.I. #34.190 and cases cited there.

2. Misuse or unforeseeable use of the product is a defense to a warranty action. V.M.J.I. 34.200 and cases cited there.

3. Open and obviousness of the hazard relieves the defendant of a duty to warn or guard against such a hazard. However, in a line of recent cases from both the Virginia Supreme Court and the Fourth Circuit, Morgen Industries v. Vaughn, 252 Va. 60 (1996) and Freeman v. Case Corporation, 118 F.3d 1011 (4th Cir. 1998), it has been made crystal clear that regardless of whether the defect itself is readily apparent to the user, it is the hazard that must be patent in order for the defendant to be relieved of the duty to guard or warn against the hazard. In Morgan, supra, an expert was allowed to testify that the hazard of being caught in the nip point of an unguarded wheel was not “obvious to most people” which allowed the matter to go to a jury. This type of testimony was used with great effect in a products case tried in the Norfolk Circuit Court wherein the chief defense was “open and obviousness.” The case ended in a plaintiff’s verdict.

4. The defendant may also attempt to envoke the sophisticated user defense or other defenses which utilize the doctrine of intervening or superceding causation. It is however important to remember that Virginia law in this area is most beneficial to the plaintiff and that only if the defendant’s negligence did not cause or contribute to the incident in the “slightest degree” will the defendant be absolved from liability, Coleman v. Blankenship, 221 Va. 124 (1980). If the defendant’s conduct placed into operation the hazard, the defendant cannot avail itself of this doctrine at all, Jefferson Hospital v. Van Lear, 186 Va. 74 (1947) - therefore, even if the plaintiff with a potential automobile crashworthiness case was speeding to a reasonable degree or perhaps failed to heed a warning that was in fact inconspicuous or deficient, it is unlikely that the defendant will be able to successfully advance any of the above defenses. A worker’s failure to use a safety device or failure to heed certain instructions might be deemed reasonable conduct by virtue of other aspects of the design which invite misuse. Also the defendant’s experience with other claims, which have not led to changes in the way the machine is designed, or the defendant’s failure to use devices that have been patented by itself or competitors in the industry which would have avoided the accident may dilute any such defenses. All these factors must be kept in mind in the initial evaluation of the case. ATLA exchange services, an AIEG search and patent searches can help in these areas. Many experts already know these issues.

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