Who's to Blame? The Proverbial Question in Products Liability Legislation

More and more cases related to injuries allegedly caused by product defects, faulty design, or failure to warn are showing up in courts all over the country. Consumer advocate groups and trial lawyers are alarmed and are attempting, through litigation and regulation, to force manufacturers to take responsibility for their unsafe products and to make safer products to avoid costly litigation. However, tort reform advocates are promoting and passing legislation which limits the product liability cases that can be filed and/or caps the amount of damages that may be recovered for injury. They feel that all the litigation and regulation drives up the costs of doing business and stifles creativity and innovation. Their theory is caveat emptor "let the buyer beware."

Additionally, many plaintiffs' lawyers and consumer advocates say the only way to get the attention of big corporations and persuade them to design and market safer products is by imposing punitive damages. Punitive damages is an amount of money over and above the amount awarded as compensation for actual damages, such as medical expenses or devices, rehabilitation, funeral and burial costs in death cases, and other expenses incurred as a direct result of the injury or death. Punitive damages are intended to be, literally, a punishment. The request for and the award of excessively large amounts of money for punitive damages has made this issue the focal point of much of the debate that has been simmering for years. Recently, there has been a nationwide confrontation and move for radical changes in the laws and numerous restrictions on product liability cases.

Products liability cases are complex, often technically difficult. Most involve use of experts to review applications of regulations and industry standards. All require attention to detail, careful identification of defendants, and review of the use and safety history of the product. The custody and preservation of the actual product involved is very important. It must be preserved as evidence and for expert examination. The integrity and chain of custody of the product may also have to be proved should its authenticity or condition come into question. Sometimes an injury or death has been caused by negligence on the part of the user, not by a product itself. In other cases, the trial team may determine that there are elements of both a dangerous product and negligence.

If you are asked to sign up a new client, evaluate a new file, or draft pleadings and discovery for a file you have not seen before, there are some basic elements necessary to evaluate a potential product liability claim.

1. Potential recovery in lawsuits is based upon damages and liability. The client or clients must have been damaged in some way, and there must be a person or entity, or a combination thereof, who was, at least partially, responsible for the defect or dangerous condition which caused the injury. Potential defendants must be identifiable and findable.
2. Certain facts about the product must be determined, such as
   • What, specifically, inflicted the injury?
   • Who had control and responsibility over the product at the time of the injury?
   • Who purchased the product, when, where, and why?
   • Exactly how did the product have contact with the person injured?
   • What are the specific injuries suffered?
   • Who, if anyone, contributed to the conditions leading up to the accident?
   • Did the injured person contribute to the circumstances surrounding the injury? If so, how?
   • Was anyone else injured in the same incident?
   • Was anyone else injured in this instance?
   • Have similar previous incidents and injuries resulted from the use of the product?
   • Were there any witnesses to the incident in question?
   • Did the incident in question occur on the job?
   • What equipment was being used?
   • Had the equipment been repaired or altered in any way?
   • What instructions or training for use of the equipment had the injured person received?
   • Was any warning of hazard posted in writing?

Here are a few of the acts of negligence, or omission to watch for that could cause accidents to happen, and could be factors in the case you are evaluating:

• Failure to warn of unsafe conditions
• Failure to design or manufacture products in a safe manner
• Failure to test products for safety
• Failure to drive safely, under the speed limit, keeping a proper look out for other vehicles, applying brakes properly, maintaining a vehicle properly, driving under the influence of alcohol or drugs, and so forth
• Failure to train employees properly in use of equipment and avoidance of unsafe situations
• Failure to have proper equipment for employee use
• Failure to maintain equipment properly or keep safety features in place on equipment
• Modification or disabling of safety features on equipment
• Failure to provide and require use of safety equipment such as safety glasses, gloves, steel toed boots, respirators, and so forth
• Failure to secure a gun properly
• Failure to design and manufacture a gun with appropriate safety features.
• Failure to provide a safe work place
• Lack of warnings

Something to look for, too, in construction and industrial accidents, is the safety record of the company or the job site. That will indicate some important things about hiring, training, and safety procedures as well as the use and maintenance of equipment.

It is very helpful to use a customized client information sheet if you are doing the new client interview, or when you first receive the file. If the attorney or firm does not have an information sheet for product liability cases, create your own, based on the information needed to assess the product, potential defendants, and damages.

You will want to get all documents that relate to the product and the injuries. Don't forget to seek any agency reports, government, and consumer group information, and recall information. The client in a product liability case is a very important resource in the process of new case evaluation and during the progress of the case. It is vital to keep a very well-organized catalog of documents you obtain pertaining to each case. Not only should that catalog list every document you have and its Bates number or other identifying locator, a brief summary of the subject addressed in the document will make it much easier to find the exact documents you are looking for a year or so later.

Again, the client can assist in determining some of the most important aspects of the case. This is especially true if the product was a household product. The client may have a receipt for when and where the product was purchased. The client may also have labels, instructions, warnings, and directions for use of the product. Find out when the product was bought, if there had been any problems with it, if it had been repaired. Also ask if the client if he was aware of any recalls, and if so, if the client complied with the recall notice.

In determining whether a product was defectively designed, the jury must consider whether the product's usefulness and desirability are outweighed by its risks, considering factors such as the likelihood of injury from the product's use, the seriousness of the injuries, the expectations of the ordinary consumer, the warnings and instructions issued with the product, and the use and availability of safer alternatives. Evidence of availability, or actual use, of a safer design by the defendant or others at the time of manufacture is strong evidence of a scientifically and economically feasible alternative which makes it more likely that the jury will find the product to be defective in design.

Another important factor to be considered is the intended user of the product, as well as any other foreseeable user of the product. For instance, a firearm may be manufactured and distributed for adults, but the fascination of guns among children is well known, so it may be foreseeable that children will also be handling the firearms.

Cases involving product liability often become the battleground for experts. You will need to maintain an extensive and current list of experts who are knowledgeable about the product targeted in the case, cases in which the experts worked and/or testified, and any ongoing research that may be related to the issues in your case. Articles in magazines or trade publications, stories in newspapers, and court documents pertaining to similar cases are good sources for names of experts.

Winning a products liability case depends on which side is best able to locate, accumulate, and document a preponderance of evidence that makes its argument the most likely and most credible explanation for the injury incurred by the plaintiff. A legal assistant with excellent organizational skills; an ability to remember small, seemingly unimportant bits of information; a non-threatening, friendly style of interviewing; a curiosity about missing pieces and the determination to track them down; and the ability to reconstruct a sequence of events can be an invaluable tool for the attorney involved in a products liability case.

TEXAS PARALEGAL JOURNAL
Summer 1997
©1997 Legal Assistants Division, State Bar of Texas

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