Products liability: tips and tactics.

All products liability cases have common features. But each case is unique, depending on the particular product involved, and each demands special consideration by the trial lawyer.

In this symposium, seasoned attorneys discuss how to overcome the power and wealth of the drug industry in pharmaceutical cases, how to investigate and conduct discovery in general aviation cases, and how to deal with juror biases regarding recreational vehicles.

Other contributors explore methods for establishing a causal link between the lack of warnings and the plaintiff's injury in power tool cases, the types of evidence that should be introduced in defective toy cases, the basics of litigating motor vehicle products cases, and factors to consider in identifying an automotive defective design case.

Trial lawyers face great challenges in holding manufacturers accountable for product defects. The tips and tactics provided here may help you get just compensation for clients and improve product safety.

Pharmaceutical cases--overcoming drug industry power

In a drug products liability case, all the difficulties of power, "tort reform," evasiveness, and preparation are wrapped up in one large package ready to pounce on you as soon as the lid is opened. Perhaps no group of defendants has amassed the wealth of the drug industry and used that wealth to its benefit as the drug industry has.

No industry has been screaming for "tort reform" louder than the pharmaceutical kingpins. No other industry has a "corner" on experts and expertise as does the drug industry. No industry has prepared for the possibility of litigation years in advance of the first suit being filed as the drug industry has. And no industry has managed to cloak itself with respectability in advertising, the club rooms, or the courtrooms as this industry has.

Against this conglomeration, you then seek fairness for your client. How is that possible? First, understand the magnitude of the problem. These cases cannot be won without a substantive understanding of the enormity of the task. Finances must be considered. Recognize that you will be out-spent, so use your resources wisely.

Second, work with a pharmacologist to gain a basic understanding of the chemistry and biology involved. Is what you believe happened biologically plausible? Do the puzzle pieces fit together?

Third, do not assume there is strict scrutiny and testing by the Food and Drug Administration before a product makes its way to the marketplace. Making this assumption is a grave error. The industry is motivated by profit, and the FDA staff is overworked and does little of its own testing--choosing instead to rely on the industry to test its products honestly.

You will hear how "the FDA has approved this product." But, again, you should not be misled. "Warnings" are developed through negotiation of the FDA and the drug industry. Believing that the honor system works is a disservice to your client.

Fourth, understand the "peer review" process. Do not assume that all scientific and medical literature is reliable. Attorneys frequently conduct a literature search to determine if there is a basis for their claims. They will probably find articles that imply' the drug in question is safe. But a little extra research may reveal that the manufacturer had something to do with the articles. The data may have been interpreted "the company way."

More intensive research may indicate that the authors of the articles had them approved by the company's attorneys before publication. Or, the articles may report a study but not include complete data. To determine whether the data's interpretation is valid, you must examine the complete raw data, as well as conduct a thorough cross-examination of the researchers.

An inappropriate aura has developed around the concept of peer review, and many courts use it as a crutch to discredit plaintiffs' experts. The defense will argue your expert's opinions have not undergone peer review, which means in drug liability "speak" that the opinion is valueless. But, procedural and evidentiary rules do not mandate "publishing" to be an expert. Defendants will routinely contend that your expert's opinion is not supported by other experts, often using the literature for which they are responsible as a basis for this assertion.

Fifth, establish early in discovery what the defendant contends is the proper methodology--what is used to arrive at an opinion--for determining causation. Carefully distinguish between the methodology and the opinion itself. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), holds that only the methodology--not the opinion itself--is subject to review by a court. Although the defense will try to muddy these concepts, your job is to clarify them. There will likely not be a real issue on methodology, but the defendant will try to make your experts less believable by attacking their methods.

Sixth, understand the differences between "association," "causation," "proof," and "probability." If these phrases are foreign to you, spend some time with someone versed in statistics or biostatistics.

When an expert says that there is proof of a causal relationship, you must be able to distinguish scientific proof from legal proof and causation from association, and be ready to discuss probability from a legal standpoint. Courts frequently confuse these phrases--to the plaintiff's detriment.

Seventh, do not accept copies of documents from defense counsel in lieu of examining the originals. Laboratory notebooks may reveal differences, similarities. Or additions that might otherwise go unnoticed. To do the job right, you need to spend several days reviewing the original documents.

Pharmaceutical products liability litigation is fraught with difficulties every step of the way. Unless you are willing to take the time to understand the chemistry and components of the drug in question, you cannot succeed. At all times, you must be mindful of the mountain you are trying to climb.

Barry J. Nace, a past president of ATLA, practices law in Washington, D. C.

General aviation cases--investigating the case and knowing the law and applicable rules

Handling general aviation products liability cases requires a familiarity with the rules and procedures of ordinary products liability lawsuits and general aviation lawsuits. General aviation refers to aircraft such as helicopters and small airplanes holding fewer than 20 passengers that were not engaged at the time of the flight in scheduled passenger-carrying operations.

These cases are subject to different laws, federal regulations, and other considerations than commercial airliner cases, especially those involving international flights. The Warsaw Convention, other international treaties, and special laws, such as the Death on the High Seas Act, usually do not apply.(1) However, precisely the same law that applies to other products cases applies to general aviation cases.

The primary federal law with which plaintiff counsel must be familiar is the General Aviation Revitalization Act of 1994.(2) It provides that no civil action for damages arising out of an accident involving a "general aviation aircraft" may be brought against the manufacturer of any component of the craft if the date the aircraft crashed is more than 18 years after the date it was first delivered to a person engaged in selling these aircraft.(3)

This statute of repose, which has had the effect of dismissing otherwise meritorious actions, is inherently unjust given that these manufacturers warrant the "useful life" of their aircraft for far longer than 18 years. Nonetheless, one of counsel's first duties is to ascertain the date of manufacture of the aircraft, the engine, and the component parts.

This is critical in these cases. Immediately upon being retained, counsel should personally inspect the crash site and arrange to examine and obtain the airplane or helicopter wreckage from its owner. The attorney should bring an experienced photographer to the site to compile an extensive photographic record.

Although the wreckage is likely to have been trucked to a storage facility by the owner or the National Transportation Safety Board (NTSB), careful evaluation of the site will reveal clues as to the nature and cause of the crash. The initial contact point may reveal the aircraft's altitude, position, and angle of approach. "Scars"--ground markings made by impact--should be measured for width, length, and depth. Dark discoloration on the ground may indicate fuel spillage or blood.

Careful measurements and photographs of clues are important, because the expert reconstructionist may not be able to visit the site immediately. He or she must then rely on the photographs.

Preservation and storage of aircraft. This is a necessary expenditure. Several storage facilities that charge reasonable fees, such as White Industries near Kansas City, Missouri, exist around the country.

Maintaining custody provides one's own experts with unlimited access to the aircraft, which permits a more thorough and unhurried examination. In addition, maintaining custody and ownership permits plaintiff counsel to select those most critical parts to move into the courtroom as demonstrative evidence.

Since in almost every case the pilot's actions will be scrutinized, counsel should acquire all the pilot's certificates, ratings, and log books. The types and grades of certificates are detailed in Part 61 of the Federal Aviation Regulations (FARs), and counsel should consult these early on. Two matters that crop up frequently are whether pilots hold a current and valid medical certificate and whether they are properly certificated for the aircraft they are operating. It is far better to learn this information early on than to be surprised close to trial.

Aircraft and engine maintenance. If the aircraft or engine manufacturer cannot blame the pilot for the crash, the manufacturer will often seek to assess fault against the aircraft owner or operator for improper maintenance. These attacks must not go unchallenged. If the defendant is successful in diverting fault, the plaintiff will be penalized because the operator or maintenance facility rarely maintains the level of insurance coverage the general aviation manufacturer does.

Weather conditions. Almost all of these cases require knowledge of the weather conditions prevailing at flight time and at crash time. The actual weather conditions and the weather information that was given to air traffic control or conveyed to the pilot immediately preceding take-off must be confirmed. This information may be found in telephone weather briefings and on the tape recordings of radio contacts between the pilot or crew before and during the flight. It can also be obtained from the local weather bureau, the local aircraft control tower, and the closest FAA regional office.

Helicopter crashes

Cases involving helicopter crashes, while similar, entail some different considerations. The helicopter and helicopter engine certification are separately regulated. The FARs impose much stricter useful life limitations on helicopter components, such as rotor blades and other components subject to very high levels of rotational or torsional stress, than on other aircraft components.

If the main rotor blades were intact during engine power failure, manufacturers will often claim that the pilot should have been able to safely land the helicopter by "autorotation"--an emergency landing procedure seeking to make use of the inertial rotational force of the rotor blades. Autorotation is virtually impossible near power lines or over populated areas, water, and dense forests. The pilot's training and experience are critical issues in such cases.

Special considerations are also involved when the crash involves a military helicopter or plane. In most instances, the investigation is performed by the military and is governed by the rules and regulations of the branch of service involved. As a routine matter, the NTSB will not involve itself in a military air crash investigation.

Discovery in these cases is more difficult, and it may be necessary to obtain some military-related information by using the Freedom of Information Act.(4) Indeed, military information on airplane and helicopter specifications is usually delivered only in conjunction with fairly strict protective and confidentiality agreements.

One discovery problem unique to general aviation cases relates to obtaining information from the NTSB investigators. By federal regulation, they are not required to testify in court and may only testify as to "personally known facts . . . observed by the employee or uncovered during the employee's investigations of the accident."(5) The regulations also provide that investigators "shall not testify as an expert or opinion witness . . . arising out of the employee's official duties."(6)

Although the NTSB and its general counsel are normally accommodating in scheduling depositions, counsel must be familiar with the subject matter restrictions on such testimony. Also, experience dictates that depositions be scheduled when the investigator is "on leave." Otherwise, he or she may be on call and summoned to investigate an aircraft crash just when the deposition is scheduled to commence.

Counsel must follow these procedures to obtain the deposition testimony of the NTSB investigator. First, obtain permission from the NTSB general counsel to schedule the deposition. And pursuant to federal statute, a subpoena must not be served. Finally, the deposition may be avoided and subject to the need for the investigator to be present at the site of an air crash.

Any plaintiff lawyer who has tried an aviation case knows there are numerous legal and practical constraints to using the NTSB findings at trial, whether through the actual report or the investigator's testimony. Absent unusual circumstances, the NTSB's final or "probable cause" report is inadmissible under current law and numerous other investigative reports and materials have hearsay and other admissibility problems. However, with effective use of the rules of evidence and careful planning, counsel will in almost all circumstances be able to bring before the jury the factual underpinnings of the NTSB's findings either by testimony of the NTSB investigator or by introduction into evidence of the NTSB's "factual findings" report.

An important alternative to presenting deposition testimony is using the NTSB's "factual findings" report at trial. Although there are obstacles to this route, they generally can be circumvented.

For authentication purposes, counsel must obtain the "Blue Ribbon" copy, an original copy of the NTSB report upon which is affixed the official agency seal attached to a blue ribbon. In almost all states and in all federal courts, an official government document like this is self-authenticating; it does not need testimony from a business records custodian. To the extent that plaintiffs' theory of the case aligns with the NTSB's factual findings, the jury may be persuaded that plaintiffs' position is likely to be correct.

Experts

Counsel must assemble an "all star" team of experts from a variety of disciplines. The disciplines include aeronautical and mechanical engineering, metallurgy, pilot training and aircraft operation, federal aviation regulations, aircraft maintenance and operational procedures, and air crash reconstruction. Because general aviation cases almost always involve catastrophic injuries or death, the stakes are high.

Careful preparation and knowledge of the special laws and regulations applicable in general aviation cases should yield a favorable settlement or a jury verdict ending with the five most beautiful words in the English language, "We find for the plaintiff."

Notes

(1.) See, e.g., Warsaw Convention for Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934),

(2.) 49 U.S.C. [sections] 40101 (1997).

(3.) 49 U.S.C. [sections] 40101 secs. 2-3 (1997).

(4.) 5 U.S.C. [sections] 552 (1994) (as administered by the military unit from which documents would be requested).

(5.) 49 C.F.R. [sections] 9.9(b)(1)(1997).

(6.) Id. at [sections] 9.9(c) (1997).

Gary C. Robb is a partner with Robb & Robb, Kansas City, Missouri.

Recreational vehicles--dealing with juror biases

Recreational vehicles include off-road motorcycles, dirt bikes, jet skis, and snowmobiles. Cases involving these vehicles are similar to automotive products liability cases but have some unique features. Plaintiff attorneys should be especially aware of the following points:

Venue. Many recreational vehicles are frequently ridden in non-urban areas. People in these areas are more likely to be familiar with RVs than those in urban areas and may believe operators and passengers are responsible for anything that happens--a more "rugged individual" philosophy--and underplay the manufacturer's accountability. But do not assume that because a county is small and rural, the jurors will be mostly poor farmers. For example, many affluent people from California have moved to rural communities in eastern Washington seeking a more rural lifestyle. Jurors may also be selected from parts of the county that are bedroom communities for a large metropolitan area.

It is important to retain respected, experienced local counsel in cases being litigated in small communities. Through local counsel, you can begin to understand the demographics.

Advertisements. A manufacturer's advertisements are often the source of valuable information. This is especially true in jurisdictions that require proof of consumer expectations for strict liability claims.

Recreational vehicle manufacturers often cater to customers who buy vehicles for the pleasure or thrill of the ride, rather than for transportation. These customers are still entitled to a safe vehicle. The advertisements, replete with adjectives that are often inconsistent with safety, emphasize the many exciting ways the vehicle can be ridden.

These manufacturers blame customers for the kind of driving they condone and exploit in television commercials, magazine ads, and promotional brochures. This "blame the customer" strategy can be the manufacturers' Achilles' heel.

You should obtain all the defendant manufacturer's advertisements as far back as possible for both the recreational vehicle model involved and all similar vehicles. You can get these from resources such as the Detroit Public Library's automobile history section, which has back issues of many automotive-related publications.

Common sense. Try these cases in a way that appeals to common sense. Recreational vehicles often invoke more emotional responses than other automotive products. Think about your case from a logical perspective: Does it make sense to the average person?

There are usually significant hot buttons, such as contributory negligence, that the defendant manufacturer can push if the case does not appeal to jurors' common sense. Strive to make the case as simple as possible. The more complicated it is, the more difficult your burden of convincing the jury.

Focus groups. These are an excellent means of getting feedback from surrogate jurors, especially when the jurisdiction is a small rural county where recreational vehicles similar to the one involved in the case are common. You may more easily understand the beliefs prospective jurors have about recreational vehicles after listening to focus group members' opinions about the issues in your case.

Conducting focus groups in small counties requires your ensuring that the manufacturer and its counsel do not discover the results. Advance screening of participants should include questions about whether they know the parties and key witnesses in the case or have family members who work for the manufacturer's local dealer. Also, have each participant sign a confidentiality declaration.

Focus groups are only as good as the information provided to the participants. I believe in holding focus groups early. But a drawback is that the lawyer might not prepare as thoroughly as he or she would if the focus group were held shortly before trial after most discovery was complete.

You should use focus group questionnaires, which are similar to juror questionnaires, to elicit each participant's opinions on the issues. You can learn what each participant's opinions are before the group dynamic--important in simulating a jury's function--takes over.

Children. Unlike automobiles and trucks, some recreational vehicles are designed to be operated and ridden by children. Maybe I am too urban, but I believe it is dangerous for children to be operating motorized vehicles.

During voir dire, explore jurors' attitudes about children operating and riding recreational vehicles. You may want to point out through cross-examination of the manufacturer's representative that in cases where the manufacturer markets these vehicles to children, its concern for safety is suspect if it is critical of children riding as passengers. If the children can operate dirt bikes, why can't they ride on them as passengers?

Experts. Two important experts are human factors experts and enthusiast experts. Human factors experts study the occupants' response to the vehicle. This is relevant to contributory negligence. These experts also examine whether warnings were adequate or, if none were given, whether they should have been.

Enthusiasts are riders who may not possess educational degrees and training but who have hands-on experience. They are often more persuasive to jurors than engineering experts.

Warnings. It is often said that a products liability trial cannot be won on a warnings theory alone. I know this is not true. But I also know that manufacturers fight hard to prove that their warnings are adequate.

You may find that the manufacturer put labels on some models but not on others. Where there are no on-product warnings, manufacturers often argue that this does not matter because users would not have followed them anyway.

Presumably, on-product warnings tell operators and passengers that something about the vehicle is unsafe. An off-road motorcycle or ATV should not be ridden with passengers, for example, but potential passengers may not know that. A blanket statement that people do not follow warnings will insult many jurors. A comment like this shows indifference to customer safety since it implies that warnings are given just to minimize the manufacturer's liability risk.

Voir dire. In certain venues, jurors may believe that operators and riders of recreational vehicles take a risk each time they climb aboard, blaming them rather than the manufacturer for injuries or deaths. These biases must be dealt with during voir dire.

The principal question you should ask is, "How do you feel about recreational vehicles?" This question will lead you into a discussion of whether jurors think these vehicles are safe and whether warnings should be placed on them.

A necessary, but less important, question is, "Do any of your family members ride recreational vehicles, and, if so, what type?"

The cornerstones of successfully trying this kind of case are having a common-sense approach to trial and dealing with juror biases regarding recreational vehicle users.

James S. Rogers practices law in Seattle.

Litigating the power tool case

Manufacturers of power tools used in the construction trades have gone to great lengths to minimize the perception that their products pose serious safety risks. But the reality is that these tools are inherently hazardous.

Also, with sophisticated technology and competitive pricing, these tools are no longer limited only to the workplace. Untrained "do-it-yourselfers" look to these products to get the job done, often oblivious to the sometimes permanent and disfiguring injuries associated with their use. When someone wrongfully harmed by a power tool comes to you for help, you should be aware of the steps necessary to successfully litigate a products liability case.

The initial interview should be as thorough as possible. Obtain from the client the name of the manufacturer of the power tool and its serial and model numbers, make, style, and date of manufacture. Retail sales data, such as receipts and circumstances of the sale, should also be obtained so that you can decide if the retailer should be included in the complaint.

Be alert for any disclaimers of liability or optional safety devices that could mitigate the defendant's liability. Determine the product's design and manufacturing process, including testing, assembly, warnings, and packaging. Ascertain any maintenance requirements or modification notices that the client may be aware of.

Preserving the product

Typically, when a power tool case is brought to your attention, a considerable amount of time has lapsed since the incident. If possible, you should act immediately to preserve the product because you will need the original or duplicate tool for the demonstrative evidence that is so crucial to the case.

If the client has the tool, take possession of it, photograph it, and have it examined by an expert, such as a metallurgist, an engineer, or a human factors expert, immediately. If the tool is not available, go with your client to purchase an identical model complete with all product literature. If the plaintiff is unavailable, seek the assistance of a coworker, neighbor, or family member who witnessed the incident.

Other people who may be able to identify the tool are police officers, firefighters, and medical personnel who responded to the emergency call; government safety investigators; the plaintiff's employer; insurance adjusters; and workers' compensation representatives.

If another person or entity has the tool, send them a letter early on asking them to preserve it. Fax the letter, and then send it by certified mail or have it hand delivered.

Also, motion the court for a protective order to preserve the product in its post-accident state. For example, in Illinois, an attorney may request production of documents and physical objects, examination of the product, and identification of the responsible parties before filing a suit against the manufacturer.(1)

To learn about the power tool, submit a Freedom of Information Act request to the Consumer Product Safety Commission. Also, check the index of Government Printing Office publications for an industry's own reports on a product's performance. The Exchange, ATLA's computerized research service; federal agencies; and other public entities are also excellent sources of information.(2)

Because these cases will generate reams of discovery, keep separate files on patent searches, literature searches, government regulations, union materials, production requests, interrogatory answers, requests to admit answers, advertising and promotional materials, and information gathered from your opponent.

Before issuing discovery, determine the customary trade usage regarding the power tool. Similarly, check whether there have been any prior incidents involving the tool to show that the defendant knew of a defect or other unreasonably dangerous conditions.

Proving inadequate warning

A typical claim in power tool cases is that the manufacturer failed to adequately warn the user of potential risks. The plaintiff must establish a causal link between the lack of warning and the injury.(3) The manufacturer will quickly point out that the warning was adequate--if the plaintiff had only read it.

Often, the manufacturer will argue that the plaintiff did not read the warning or that the plaintiff cannot show that a better warning would have changed the course of his or her conduct. Through expert testimony, demonstrate that the plaintiff did not read the warning because its size, format, and color did not catch his or her attention. The manufacturer may also argue that the plaintiff's misuse of the product caused the injury.

Often, the warning will wear off the tool. There is a rebuttable presumption that the user would have read an adequate warning and heeded its instructions.(4)

It is also important to retain the services of a human factors expert in a warning case. The expert can testify to the need and adequacy of hazard warnings in power tool cases. The expert can also rely on literature that addresses the impact of warnings and the need for users to have warnings.(5)

Trials, of course, are unpredictable. But much of the unpredictability can be minimized by preparation. Focus groups are an invaluable asset. They can help you discover pertinent information and explore different themes before the case actually goes to trial.

Also, advanced computer technology can create persuasive demonstrative evidence. Computer simulations, laser disks, CD-ROM displays, and computer-assisted design can all support an expert witness's opinion and make the trial more interesting from the perspective of the judge and jury.

Most important, however, are your instincts and understanding of jurors' reactions to evidence in the courtroom. Although focus groups and computer technology can be essential components of your decision-making process, trust your own experience in the courtroom.

Power tool cases are both challenging for the attorney and beneficial to the public. Success depends on your diligence in investigating all the facts about the power tool, preserving the tool, conducting extensive discovery, and using technology and experts to demonstrate the tool's safety risks.

Notes

(1.) See ILL. SUP. CT. R. 224 (1996).

(2.) Richard H. Porter, Voluntary Disclosure to Federal Agencies: Their Impact on the Ability of Corporations to Protect from Discovery Materials Developed During the Course of Internal Investigations, 39 CATH. U. L. REV. 1007 (1990).

(3.) Riley v. American Honda Motor Co., 856 P.2d 196, 198-99 (Mont. 1993).

(4.) Coffman v. Keene Corp., 608 A.2d 416, 420 (N.J. Super. Ct. App. Div. 1992), aff'd. 628 A.2d 710 (N.J. 1993).

(5.) See, e.g.. W. Kip Viscusi, Toward a Proper Role for Hazard Warnings in Products Liability Cases, 131. PROD. LIAB. 139 (1991).

Robert A. Clifford is the principal partner in the Chicago law firm of Clifford Law Offices. Jeffrey J. Kroll is an associate with the firm.

Defective toys--demonstrating manufacturers' disregard for children's safety

A 10-year-old girl and her brother were playing in a yard. As the girl was going into the house, a lawn dart thrown by the brother struck her head. She sustained a skull fracture, resulting in severe and permanent brain damage. The darts were weighted so that their metal tips were positioned to penetrate whatever object they came in contact with-in this case, the girl's head. Also, the darts lacked readily visible warnings to alert users of their hazards.

Every year, the market is filled with unsafe toys that injure and kill children. Every December holiday season, many defects are represented in the "10 Worst Toys List."(1) The toys listed over the last few years include the Bleeding Butcher Knives, which could potentially result in puncture injuries if the sharp edges contact a body part; Winnie-the-Pooh Wooden Pull Toys, which could result in strangulation if the cord becomes entangled around a child's neck; Fisher Price's Little People Mini Popper, which could result in choking if a figurine is swallowed; and Batman Forever 3D Viewer, which could result in eye injuries if Batman's protruding ears come in contact with a child's eye.

In its 1996 annual report to Congress, the Consumer Product Safety Commission (CPSC) reported 19 toy-related deaths for 1993-94 and 138,097 toy-related hospital emergency room visits for 1995-96. And virtually thousands of other toy-related injuries and deaths go unreported each year. With these statistics, why are there not more cases involving toy-related injuries and deaths?

The answer is simple: A protracted public relations campaign by the toy industry has indoctrinated parents and caregivers to blame themselves when tragedy strikes. This type of blame shifting often causes parents and some plaintiff lawyers to hesitate in seeking redress for a child's injury or death caused by a defective toy. Blame is put on the child's use of the toy or on the parent's or caregiver's supervision of the child, rather than on the toy industry--where it belongs.

Rechanneling the blame can occur only when it is uniformly accepted that children's behavior is predictably unpredictable. How can children "misuse" a product when all they are doing is using it as any child would? Even though this issue is not widely raised, attorneys should not be dissuaded from pursuing a toy-related products case.

Winning strategies

Often, toy cases can be won by looking beyond the traditional interpretation of defect--anything that is wrong with a product that is causally connected with the injury. Toys may be defective because they (1) are inadequately designed, assembled. packaged, tested, or inspected; (2) include inadequate instructions and warnings; (3) contain improper materials, components, and safety devices; and (4) are advertised in away that misleads consumers.

Attorneys should be familiar with the laws that address toys. The federal Toy Safety Act of 1984 provides that the CPSC may take action against a manufacturer of "any toy or other article intended for use by children" that "contains a defect which creates a substantial risk of injury to children."(2)

The Child Safety Protection Act institutes safety standards for bicycle helmets; requires manufacturers to warn of the choking hazards associated with toys that contain small parts (for example, marbles) and to report choking incidences to the CPSC; requires clear and visible warnings; and bans the sale of balls with a diameter of 1.75 inches or less to children who are under the age of 3.(3)

The Consumer Product Safety Act promulgates product safety standards.(4)

In cases involving toys that contain small parts, attorneys should be aware of the Truncated Cylinder Test for Small Parts, which is often used by the toy industry as a defense. The test, which has never been scientifically validated, was the government's first step in trying to ban toys that pose choking hazards, and the toy industry's "voluntary standard" for regulating hazards posed by small parts.

If a toy or component fits completely into the cylinder--with a diameter of 31.7 mm and a depth of 25.4mm to 57.1 mm--it fails the test, violating both government and industry standards for small parts. Many children have died or been severely injured, however, by toys that have passed the test.

A key to winning toy cases is evidence that the toy manufacturer knew about the defect before the accident at issue. In Cunningham v. Quaker Oats Co., a boy barely over the age of 1 sustained brain damage when one of the Fisher Price Little People became lodged in his throat.(5) At trial, evidence was introduced that although the company had been put on notice by concerned consumers and safety experts that the original Little People presented a potential choking hazard, the manufacturer elected not to take corrective action.

Also important is evidence that shows a flagrant disregard for children's safety. In Cunningham. the toy designer's trial testimony indicated that safety was not a consideration in designing the figurines:

Q. Did you read any material--have any

input about safety considerations regarding

the toy during the period of time when you

initially got involved in the development of the

figurines?

A. No.

Q. Did you receive any safety input at that

time from any other member of the team that

you tried to incorporate into the design of the

figurines?

A. Not in the figurines themselves.

Q. So in essence, prior to the time that they

were marketed. there was no safety input with

respect to the figurines?

A. Not with the specific ones we are

referring to, which is the evolutionary figure,

the one that I designed specifically.

Parents of children injured or killed by defective toys deserve just compensation. Attorneys must find ways to demonstrate the industry's disregard for children's safety. Today's children deserve no less.

Notes

(1.) A copy of the list can be obtained by writing to World Against Toys Causing Harm, 10 Marshall St., Boston, MA 02108, or by calling [phone].

(2.) 15 U.S.C. [sections] 1274(c)(1) (1994).

(3.) 15 U.S.C. [subsections] 6001-6006, 1278. 1261 (Supp. 1997).

(4.) 15 U.S.C. [subsections] 2051-2084 (1994).

(5.) No. 19173-343 (W.D.N.Y. June 18, 1981).

Edward M. Swartz is a partner with Swartz & Swartz in Boston. The author thanks Wily D. Swartz for her assistance in preparing this article.

Motor vehicle products liability litigation--the basics

According to the National Highway Traffic Safety Administration, in 1996, over 41,000 people died in motor vehicle collisions. Hundreds of thousands were seriously injured. Unfortunately, many of these deaths and injuries could have been prevented had the motor vehicle manufacturers provided reasonable safety that was technically available and feasible.

Motor vehicle products liability litigation typically involves either a defect that causes an accident or a failure by the manufacturer to design a vehicle that provides reasonable safety in a foreseeable accident. The concept of reasonable safety seems simple to understand for lawyers but apparently not for the laypeople who make up our juries.

Before you take a motor vehicle design case, make sure you understand the law in the applicable jurisdiction. For example, does the plaintiff have to prove an alternative safer design? In some jurisdictions, this requirement does not exist, while in others it exists only in crashworthiness cases. Also, what is the burden and degree of proof necessary to prove causation?

Understanding these legal requirements is essential so that you can conduct the proper investigation and evaluation of the case, as well as tailor discovery and trial presentations so that all legal elements are proven. Typically, establishing these elements involves the plaintiff reconstructing the accident; offering evidence of kinematics--the occupants' movement within a vehicle--and of any design defect; and proving proximate cause.

Investigation

The primary advantage the plaintiff has in these cases is the opportunity to investigate a case and secure evidence before the defendant knows about the claim. Therefore, it is essential to secure the vehicle in question as soon as possible and arrange to own it if possible.

The owner of the vehicle has a distinct advantage in that he or she controls when the defendant inspects the vehicle and also observes which people inspect it and what they do during the inspection.

It is also very important to secure all vehicle components and keep them in their original condition so no spoliation argument can be made.

Another important step in your investigation is interviewing all witnesses. This may seem like a ridiculously simple suggestion, but the term "all witnesses" includes not only everyone who witnessed the accident but also every person who appeared at the scene (for example, medical personnel, ambulance drivers, police) and who lives at or near the scene.

It is impossible to predict at the outset whether information a person might have will later become important. But if you have interviewed everyone who has information about the incident, the scene, the vehicle, the occupants involved, and the injuries sustained, you will have the facts necessary for accident reconstruction and kinematic, causation, and design analysis.

It is also important to obtain all photographs of the scene and the vehicle because sometimes photographs taken early may capture some piece of evidence that becomes important later.

Accident scenes tend to change with time, and sometimes the vehicle is inspected by so many people on so many occasions that the position of certain components changes or marks are made inadvertently that are not associated with the original incident.

Finally, it is important to obtain all the injured or deceased plaintiff's medical records, not only records from this incident but all past records. Often, defendants dig up medical history to explain why an incident occurred. The defense may use a history of alcohol or drug abuse to argue that the plaintiff was impaired at the time of the accident. The defense may also argue that the plaintiff's injury was not caused by the accident but resulted from a preexisting medical condition.

Design evaluation

You can often obtain an initial impression of how an accident occurred by interviewing the investigating officer or having an accident reconstructionist screen the case by looking at photographs of the vehicle and scene. Once you establish how fast the vehicles were traveling so that you have some assurance that the fatal crash was survivable and a design change would have made a difference. you can evaluate design.

The first and least expensive step in evaluating design is to contact the Attorneys Information Exchange Group and the ATLA Exchange, the association's computerized research service, to determine if there is any litigation history for the vehicle. These resources often lead to attorneys who have handled similar cases. They can recommend experts and tell you about recalls or similar incidents.

Before you engage a whole team of design experts and evaluate design alternatives, have the medical records reviewed to make sure that the plaintiff's injuries are associated with the design defect you suspect. Sometimes, you will encounter what appears to be the failure of a component, but that failure has nothing to do with the plaintiff's injuries.

Once you believe that you have the approximate vehicle speeds and an injury that is associated with the design defect, have the vehicle inspected not only to evaluate the quality of the design but also to determine if there are alternative safer designs. Even if proving alternative safer designs is not a legal requirement, it is helpful to show a jury that an existing design was used by another manufacturer or the same manufacturer on another model. The ability to prove this is probably the best evidence of a design defect. If this is not possible, you should be able to show an alternative was technologically feasible.

I believe it is important that the various experts understand all aspects of the reconstruction as well as the vehicle performance during the incident and how the design contributes to the injuries. Have the experts meet and discuss their respective evaluations. Although some attorneys fear the details of the meeting will be discoverable, I believe the best test of an expert's conclusions comes from questioning by fellow experts.

These meetings also provide for the coordination and distribution of tasks, such as further testing, that are necessary to finish preparing a case. The meetings are also important in distinguishing the experts' roles so there is no conflict or duplication of effort.

Once the crash investigation and design evaluation have been completed and the case is filed, develop a discovery strategy. You should establish some guidelines at the beginning.

For example, set deadlines for both sides to exchange any testing or studies that have been conducted. Many motor vehicle manufacturers wait until the last minute to do any testing so that it is too late for plaintiff attorneys to either respond by doing their own testing or to adequately discover the details of the defendant's testing. Often, defendants show up at the end of a discovery cutoff or as late as allowed by a pre-trial order with testing not produced during their experts' depositions so that your experts could evaluate the testing and respond.

Also, agree that any tests or studies will be produced in advance of an experts' depositions. Motor vehicle manufacturers often show up at their expert's deposition with a test that has just been conducted or a study that has just been completed. Plaintiff counsel has not had an opportunity to prepare to examine the expert on that test or study or to receive input from the plaintiff's experts so that a meaningful examination can be conducted.

Last, agree to a maximum length for depositions. Defense counsel typically take very lengthy depositions of the plaintiff's experts.

All these suggestions should be undertaken within an agreed discovery schedule, if possible. If this is not possible, you should petition the court to enter an order establishing a formal discovery schedule. It is helpful to have the court enter a formal order even if the discovery schedule and conditions are agreed on.

Formal discovery typically involves the usual interrogatories and requests for production. Over the years, I have found that less can be more in the sense that judges generally are not as likely to grant motions to compel if the requests for production are too voluminous.

It is better to tailor the requests to seek the specific documents and answers you and your experts believe are necessary, rather than to conduct shotgun discovery. Sometimes, this is not possible because the defendant is evasive, but usually the more precise the request, the more likely the court will require the appropriate response.

Federal Rule of Civil Procedure 30(b)(6) depositions of the defendant corporation in which the corporation designates the person(s) most knowledgeable about the subject matter are probably the best discovery device. However, these depositions should not be conducted as fishing expeditions or in lieu of interrogatories or other forms of discovery. By conducting all forms of discovery, you will be ready to thoroughly cross-examine the corporate representative in a meaningful way.

Informal rather than formal discovery is preferred. Lawyers who have handled similar cases can often provide documents and depositions or at least help you identify the documents you should request. Do not agree to protective orders unless they allow sharing of information with other lawyers handling similar cases.

Conduct discovery with a view toward trial presentation. It is not helpful to obtain thousands of documents and a lot of deposition testimony if they do not support your theory of the case. It is therefore important to have a theme and tailor the presentation of your experts and your questioning of the defense experts to support your theme.

Trial

These cases are complicated because of the technical issues involved, as well as the amount of expert testimony. Do not assume that jurors understand the technical issues or the legal concepts.

Several years ago, I commissioned a survey as part of the preparation of a crash worthiness case. Respondents overwhelmingly found the design to be unreasonably dangerous but not defective.

Apparently, they did not understand that what is a defect and what is unreasonably dangerous are legally the same. Instead, they thought of defect as something that was not working, rather than as a design that is unreasonably dangerous. As a result of this survey, I now explain during voir dire and opening statement the terms, concepts, and legal principles that form the framework of my case.

It is also important that the jury understand that crashworthiness involves a determination of what caused an injury rather than what caused an accident. Defendants are often successful in focusing the jurors' attention on driver or environmental factors that "cause" an accident, diverting their attention from the design defect that actually caused the injury.

Finally, it is essential to address the Federal Motor Vehicle Safety Standards. The jury must understand that these are minimum standards with which the manufacturer certifies compliance without independent testing by the government. If possible, educate the jury on the fact that these manufacturers lobby the government, so the standards are often the fox guarding the henhouse.

A motor vehicle design case begins and ends with the coordination of accident reconstruction, design analysis, and injury causation. Only when you address all three of these elements will you be successful. You need to be familiar with these elements, in terms of both the legal requirements in your jurisdiction and the practical requirements necessary to prove each element to jurors.

The major auto manufacturers are formidable opponents that are well funded and well prepared. You must thoroughly investigate, meticulously evaluate, and strategically present your case so that jurors understand that the manufacturer could have prevented a foreseeable injury and should have done so.

James R. Pratt III practices with flare Wynn Newell & Newton in Birmingham, Alabama.

Automobile cases--recognizing the detect

Most serious injuries and deaths in automobile accidents could be prevented by safety technology that was developed as early as the 1960s.(1) Since 1968, all major auto manufacturers participated in designing and testing experimental safety vehicles (ESVs) and research safety vehicles (RSVs). The vehicles' designs and crash test performances were widely reported in the technical literature.(2) Unfortunately, many of the strides in safe design that resulted from the ESVs and RSVs have still not been incorporated into passenger vehicles.

In evaluating auto cases involving serious injuries, it is important to consider why the collision occurred. Did the driver suddenly lose control of the vehicle? Did it have a braking problem? Was there a design defect?

It is also important to determine how the injury occurred. Did the driver's restraint function properly? Was the steering wheel adequately padded?

This article discusses factors to consider when determining if your case involves a design defect.

Typical accident facts

Defective design cases share a number of characteristics regardless of the particular defect. Typically, they involve fatal or severe injuries such as paralysis, head injuries, and internal injuries.

It is not unusual to find that other passengers in the same vehicle as the severely injured plaintiff or passengers in the other vehicle involved in the collision suffered only mild injuries. Often, a particular type of injury indicates a particular defect. For example, a severe abdominal injury to an occupant who was belted may signify a defective restraint design.

Further, the combination of severe injury or death with a relatively low-speed collision or simple accident facts such as a typical intersection collision may also indicate a defect.

If you think your case involves a defect, secure the vehicle and its components and store them in a safe place. Do not disassemble components to send them to experts or try to fit the broken pieces together.

Gather evidence by taking photographs and videos of the accident scene and the vehicles involved. Also, interview witnesses, including police officers and anyone who touched the vehicle after the accident took place.

Hold off on settlement. In jurisdictions applying comparative causation or limiting joint and several liability, the plaintiff may be penalized for early settlements with negligent defendants. The jury's finding, regardless of the size of the settlement, can be reduced by the percentage of causation attributed to a settling defendant.

Specific defects

Defects commonly fall into one of the following categories:

Fuel system failures. These may involve any component of the fuel system, such as filler caps, connecting lines, and tanks, that allows fuel to escape and cause a fire. The components may be positioned so that they rupture or disconnect in a collision.

Lack of occupant compartment integrity. A basic tenet of good auto design is that the occupant compartment should not be compromised in a collision. Some examples of compromise are roof crush and intrusion of the vehicle's components into the occupant space.

Also, contact with sharp objects in the compartment may cause injury. Often, these are not covered by plastic or vinyl to reduce the likelihood of injury if an occupant contacts them during a collision.

Restraint system failures. Today, injuries produced by restraints are the largest category of auto products cases. The effectiveness of the restraint system is determined by the design and performance of the seat belt, the seat back, the seat cushion, and the steering assembly.

Some of the more typical defects in restraint systems include--

* Excessive seat belt slack. To function correctly and safely, a seat belt must fit snugly against the occupant's body. In an accident, even a small amount of slack can cause serious injury or death.

One of the primary sources of slack is in the "window shade comfort feature" or tension-reliever mechanism, which is built into the belt retractor. When the occupant moves forward in a non-impact situation to adjust the radio or rear-view mirror, the restraint loosens and does not automatically return to its proper position. Consequently, when a collision occurs, the belt is not fitted appropriately to provide maximum protection.

Other sources of slack include--

designed-in stretch in the belt's fabric webbing in excess of 5 percent, which can result in six inches or more elongation in the belt;

stiffeners to hold the belt buckle upright and in place, which can induce up to an inch of additional slack;

threaded loops, a series of folds sewn into the lower portion of the lap belt, which can break away; and

lack of a positive fabric lock in the retractor, which can cause the webbing fabric to tighten around the locked reel and release several inches of belt.

* Passive restraint problems. Two particular problems are associated with passive restraints. The first involves a widespread misunderstanding about how these devices work. Most consumers believe that when the passive belt crosses the chest, they are safely belted. But using the chest belt without the lap belt, which must be put on manually, often causes severe or fatal injuries in low-impact collisions. Often, the liver is lacerated, and the occupant dies before reaching the hospital in what is an otherwise survivable automobile collision.

Second, if the chest belt is mounted in the door and the door opens, the belt becomes useless. For all practical purposes, the occupant is unbelted.

* Only lap belts for rear-seat passengers. Many vehicles have only lap belts in the rear seats. During a collision, rear seat occupants may jackknife over the seat belt or submarine underneath it, resulting in head injuries, serious internal injuries, or paralysis from fractures of the lumbar Spine.

* Seat belt buckle release. Because of an inferior latch mechanism, some seat belt buckles release during a collision. The belt appears to be locked when in fact it is not.

* Improper belt angle. To function properly, the lap belt must pass over the strong bones in the pelvic area and remain there during a collision. If the belt is positioned too high on the occupant, he or she may submarine under the belt and suffer severe abdominal or spinal injuries. Improper angling may also result in excessive slack in the belt.

* Seat back failure. The seat back comprises the rear half of the front-seat occupant restraint system. When the seat back fails, the front-seat occupant becomes unrestrained and is frequently ejected into the rear seat or through the rear window, causing spinal injuries or death.

* Inadequate seat cushion design. Factors including the shape, angle, and stiffness of the automobile's seat cushion all contribute to whether the restraint will function effectively in a collision. An inadequate seat design can cause the occupant's lower torso to move forward in a crash and increase the likelihood of the occupant submarining under the seat belt.

* Lack of energy-absorbing steering assemblies. In forward collisions, the steering assembly which consists of the steering column, the steering wheel, the spokes in the wheel, and the hub--should be capable of absorbing a great deal of energy--almost as much as an air bag. The stiffness of the steering column, as well as materials that absorb energy on the steering wheel itself, can help protect an occupant in a collision.

The majority of cases trial lawyers handle involve automobile collisions, which often involve catastrophic injuries or deaths. Nevertheless, many automotive products liability cases go unrecognized or are recognized too late to do anything about them.

Recognizing these cases early on will not only benefit our clients but will also draw attention to unsafe designs, encouraging manufacturers to increase vehicle safety.

Notes

(1.) R.R. MCHENRY, CORNELL AERONAUTICAL RESEARCH LAB. ANALYSIS OF THE DYNAMICS OF AUTOMOTIVE PASSENGER RESTRAINT SYSTEMS (1965): G.H. MULLER, HIGHWAY SAFETY RESEARCH INST., UNIVERSITY OF MICHIGAN, WHY A SECOND COLLISION? (1967): N. BARACOS & A. RHODES, SOC'Y OF AUTO SAFETY ENG'S (SAE) FORD'S' FRAME, SAE REP NO. 690004 (1969).

(2.) K. MITSUHASHI ET AL., SOC'Y OF AUTO SAFETY ENG'S, ON CRASHWORTHINESS OF NISSAN ESV, SAE REP NO. 740208 (1974): W.J. WINGENBACH & R. SCHWARZ, SOC'Y OF AUTO SAFETY ENG'S, EXPERIMENTAL SAFETY VEHICLE CRASHWORTHINESS DESIGN, SAE REP. NO. 720070 (1972): NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., REPORT OF THE THIRD INTERNATIONAL TECHNICAL CONFERENCE ON EXPERIMENTAL SAFETY VEHICLES, NTIS REP NO. 5003-000084 (1972): NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., TOYOTA/AMF ESVS-FRONT-TO FRONT IMPACT TEST AT 60 MPH, NTIS REP NO. HS-801 526 (1975).

RELATED ARTICLE: ATLA's Products Liability Section--members helping members

At about 1400 members strong, the Products Liability Section assists members who handle cases involving numerous products, from latex gloves to conversion vans to hazardous prescription drugs.

The section has a two-fold function, according to section chair Gary C. Robb of Kansas City, Missouri. "First, it strives to educate and inform members through the products Liability Law Reporter, a quarterly newsletter, and various educational programs. Second, the section allows members to share and exchange information about specific products," Robb said.

The section maintains a databank of cases that have resulted in safer products from the market. The section is also working to compile a list of consumers who were injured by unsafe products and who would have been barred from filing claims had harsh products bills been in effect.

In addition to Robb, section officers for 1997-98 are James Prat III of Birmingham, Alabama, chair elect; Brent Carpenter of Sugarland, Texas, first vice chair; Daniel Dell'Osso of San Francisco, second vice chair; Donald Slavik of Milwaukee, Wisconsin, secretary; and David Whitaker of Detroit, treasurer.

To learn more about the section and its activities, call [phone], ext. 312. To join, call Membership at [phone], ext. 611. Dues are $133 a year. Membership benefits include a subscription to the Product Liability Law Reporter.