A bicyclist careening down a hill in Travis County crashes, badly injuring himself and threatening a potential Olympic career. The bike manufacturer, the helmet manufacturer, the distributors for these products, the entities who manufactured the component parts overseas, and the bike shop that last fixed the bike are all parties to the lawsuit, and potentially liable. As a paralegal, where do you begin?
Obviously, a different approach will be taken, depending on which hat you wear as either a paralegal for Plaintiff's counsel, or Defendant's counsel. In either case, however, most product liability cases often require detailed preparation. There are many aspects to preparing a products liability case, and this particular article will focus, primarily, on gathering information and data for a products liability case, and also many of the sources available to you in that regard.
KNOW THE CASE
As paralegals, we are often faced with an overwhelming number of deadlines, leaving us with only a small amount of time to absorb all of the details of a particular case. I encourage you, however, to take the time needed to get to know the case inside and out, whenever possible. I am often surprised at the number of paralegals who do not even make an effort to get to know the case they are working on. While I understand, all too well, that paralegals often juggle many different files and deadlines, a paralegal can usually provide much better assistance to their supervising attorneys by being as informed as possible about the allegations, defenses, parties involved, product, etc. It is beneficial, therefore, to make every effort to take this obvious step, and make the time to identify the different allegations, the key players, discuss possible defenses (or possible anticipated defenses), and find out everything possible about the product and parties involved. It is difficult to generate an investigation when you do not have a substantial understanding of the issues involved.
INVESTIGATION
Gathering Documents and Data
The paralegal may want to consider obtaining a complete history of the article in many product cases. Determine the date of the original sale, identity of the dealer, distributor, subsequent purchasers, lessees and users. You will want to locate the instruction booklet, assembly booklet, warranties, and all other written material that accompanied the new product at the time of the original sale and distribution. Determine whether the article was modified or otherwise changed after it left the possession of the manufacturer and distributor, and, if so, the identity of the persons or entities which made the modification and the dates involved.
Other background data to consider include a complete description of the article, the manufacturer, distributor, sources of all component parts and all written materials pertaining to the product; advertising brochures, instruction booklets, technical data, parts manuals, repair manuals, operating manuals, catalogs, technical and lay advertisements, blueprints and diagrams of the article and component parts.
SOURCES:
Government Assistance:
There are a number of federal and state statutes, regulations, and safety orders that exist, as well as agencies that are concerned directly with a variety of different products. Locating an agency concerned directly with the product in question can serve as a basis for gathering further information. Federal statutes encompass aircraft, automobile equipment, boats and boating equipment, insecticides, medical devices, hazardous substances, highway safety, household refrigerators, packaging to protect children, mobile homes, motor vehicles, natural gas pipelines, and occupational safety and health.
State police or highway patrol should be checked for regulations concerning the use and equipment of motor vehicles. Most state fire marshals issue fire safety standards and basic building design and construction standards.
The U. S. Consumer Products Safety Commission is an independent federal agency whose main purpose is to reduce injuries. The Commission issues consumer product safety rules and can ban hazardous products. It maintains an Injury Information Clearing House to investigate and disseminate data relating to the cause of injuries associated with consumer products.
ÊÊThe National Technical Information Service of the U. S. Department of Commerce supplies a wide range of technical information and has a literature search service.
The Occupational Safety and Health Administration (OSHA) publishes numerous regulations and pamphlets on workplace safety and health standards, the use of industrial substances, and safety in industrial and construction operations.
Another source for information on regulated substances is the Environmental Protection Agency, which has the authority for air, water and pesticide standards.
Information concerning standards for various products and materials is available from the Office of Technical Information and Publications of the National Bureau of Standards.
The Food and Drug Administration should be contacted in cases involving food, drugs, medical devices or cosmetics. The FDA establishes the standards for regulated products and also has information on drug ingredients and food and drug manufacturing methods.
Electronic products which may emit radiation are regulated by the Bureau of Radiological Health, which has information concerning research, testing, and recall campaigns.
The National Highway Traffic Administration (1-800-424-9393) develops and issues safety standards for all new cars, conducts research on accident prevention, investigates motor vehicle defects and enforces notification of defects to owners of record. Numerous publications are produced by the Administration for consumers and their lawyers. The Federal Highway Administration is concerned with improving highway safety and conducts highway safety research relating to trucks and buses. The Transportation Research Board conducts computerized searches and prepares abstracts regarding engineering articles pertaining to highway topics.
The U. S. Coast Guard sets standards, makes factory inspections and conducts investigations of consumer complaints of defective boats.
A few other federal agencies that may be able to assist you with your case are the Federal Aviation Administration, the National Transportation Safety Board, and the Federal Fire Council.
Private Sources of Product Information:
The American Insurance Association maintains an engineering and safety service and has pamphlets concerning a wide range of accident prevention topics.
Technical and scientific information can be located in several indices which contain references to scientific books, articles and reports on almost every product manufactured. The Applied Science and Technology Index, Engineering Index, and Science Citation Index should be checked.
The National Safety Council, National Fire Protection Association, American National Standards Institute, American Chemical Society, American Society of Mechanical Engineers, American Water Works Association, and the Manufacturing Chemist's Association all have scientific and technical data.
The Center for Auto Safety (202-328-7700) in Washington, D.C., the Transportation Safety Department of Calspan in Buffalo, NY, and the Highway Safety Research Institute in Ann Arbor, Michigan, all do research in the field of automobile design. The Society of Automotive Engineers in Warrendale, Pennsylvania, maintains a complete library on automobile components and safety standards.
EXPERTS
The search for product information is often an arduous task, and in many cases, will be assigned to an expert in the field. Finding a qualified expert is usually a major factor in successfully proving or defending the case and, as a paralegal, you may be called upon to assist in this endeavor.
Although a university professor may make an excellent witness, the skilled technician or mechanic should not be overlooked. There are many resources for experts, including, but not limited to: Technical Advisory Service for Attorneys ("TASA"), 1166 DeKalb Pike, Blue Bell, PA 19422-1853 (800-523-2319; http://www. tasanet.com), and IDEX, Box 12426, Overland Park, Kansas, 66282-2426 (800-521-5596; http://www.idex.com).
A literature search can sometimes provide a list of potential experts on esoteric subjects. Consider that in a fairly recent case involving a vintage fire hose coupling which failed when placed under pressure, all identifying marks had been obliterated by use, and the manufacturer was unknown. A literature search uncovered a San Diego author, an expert on fire hose coupling, who was able to identify the small Wooster, Ohio, manufacturer from a photograph of the coupling.
In addition to utilizing engineering testimony, consideration should be given to psychologists or experts specializing in the field of human factors. On occasion a strict engineering approach fails to consider that a product must be designed so that people can safely use it. Consider a case against a manufacturer of a defective industrial switch that explodes and spews burning oil. A human factors consultant may envision an inexpensive safety lock, for example, that could be added to the existing design at little cost and which would have prevented the plaintiff's injuries.
DISCOVERY IN PRODUCT LIABILITY CASES
You may be called upon to assist in some aspect of discovery, whether it is drafting proposed discovery requests, preparing proposed objections and/or responses, or gathering responsive documents to be produced. Paralegals can offer valuable assistance in this phase if they are well-informed about the product and the types of information that can be requested. Some of the product information that is generally requested through discovery in products liability cases may include, generally, the type of requests or interrogatories stated below.
Plaintiffs will typically want to identify and locate blueprints and diagrams of the product and component parts, the materials used in manufacture and their suppliers, a breakdown and analysis of the manufacturing and quality control processes, the schedule of inspecting and testing of the product, patents and patent applications, dealer bulletins, advertising materials, trade journals and scientific journals. Interrogatories may also try to obtain information pertaining to subsequent design or manufacturing changes, as well as identifying pertinent standards issued by engineering associations concerning the product in question. Additionally, requests for the complete accident history file for the product and other similar models are sometimes helpful. It may be helpful to try and determine if the manufacturer maintains a safety committee and whether or not minutes of discussions exist. Interrogatories should also identify each person connected with the design not only of the product in question but of similar products, including employees of the manufacturer and other consulted concerning the design. Counsel should also determine the intended use of the product when the design was originally considered and the contemplated conditions under which the product was to be operated.
Often answers to interrogatories will provide you with an opportunity to gain access to valuable test data and interoffice memoranda. The Pinto case is an important example. Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 791-792, (1981) . In this case internal Ford engineering studies concluded that the cost of paying victims for injuries and deaths would be less expensive than installing a device that could help prevent gasoline from escaping from vehicles in collisions. This famous "Grush" memo, named after its author, was the basis of a $127 million punitive damage award.
Only you and your supervising attorney together can determine specifically what your role will be in a products liability case. Some paralegals have a lot of responsibility in almost every aspect of the case, from investigation through assistance at trial. Many attorneys will agree that paralegals are essential to this type of litigation. Whatever your role may be, it has been my personal experience that product liability cases are often interesting and challenging, and you will learn something from each of them, not only as a paralegal, but also as a consumer.
Jodye Kasher is a Certified Legal Assistant, and is also certified by the Texas Board of Legal Specialization in Personal Injury Trial Law. Currently, she is a senior paralegal with the Dallas law firm of Fanning, Harper & Martinson, where she has worked in the area of insurance defense litigation for the last 8 years. Ms. Kasher is a board member of the Dallas Area Paralegal Association, and currently Professional Development Committee Chair for the Legal Assistant's Division of the State Bar of Texas.
The above article is intended to provide general information and should not be construed as legal advice or opinion. This article is not a substitute for legal counsel.