Proving your case with manufacturer employee depositions: during each stage of your planning in a products case, consider how information gained from the manufacturer's employees can help prove its liability.When deposing product manufacturers employees, as in any deposition, you want to advance your theories and destroy your opponent's defenses. While both goals are important, the second is critical, and the employee deposition is your best chance to achieve it. Prepare each step of the case bearing in mind what information company employees might provide to help prove your points. Start by serving focused written discovery. Federal courts and some state courts limit the number of interrogatories Written questions submitted to a party from his or her adversary to ascertain answers that are prepared in writing and signed under oath and that have relevance to the issues in a lawsuit. that can be served, so don't waste them. Skip topics covered in self-executing disclosures, such as insurance information, and ask about the manufacturer's contentions. A typical contention interrogatory in·ter·rog·a·to·ry adj. Asking a question; of the nature of a question; interrogative. n. pl. in·ter·rog·a·to·ries Law A formal or written question, as to a witness, usually requiring an answer under oath. looks like this: Do you contend that [the plaintiff] misused [the product]? If the answer is anything other than an unqualified "no," present the following: * the manner in which you contend [the plaintiff] misused [the product] * all facts supporting your contention * the identity of all witnesses who will testify To provide evidence as a witness, subject to an oath or affirmation, in order to establish a particular fact or set of facts. Court rules require witnesses to testify about the facts they know that are relevant to the determination of the outcome of the case. in support of this contention * the identity of all documents that refer or relate to the factual basis for this contention. Also ask specific questions about your proposed alternative design: * Do you contend that [the alternative design] was not technologically feasible on [the date of the defective product's manufacture]? * Do you contend that [the alternative design] would have met with customer resistance on [the date of the defective product's manufacture]? * Do you contend that [the alternative design] would create a false sense of security in the user? * Do you contend that [the plaintiff's] injury would have occurred even if he [or she] had used [the alternative design]? With answers to these questions, you will not be surprised by any defenses the manufacturer's employee raises when you depose To make a deposition; to give evidence in the shape of a deposition; to make statements that are written down and sworn to; to give testimony that is reduced to writing by a duly qualified officer and sworn to by the deponent. him or her. Your biggest discovery battle is likely to be over requests for "other similar incidents." A few preventive moves can position your case for victory. First, be realistic in framing the scope of these requests. It is tempting to ask for information about all accidents involving any of the manufacturer's products at any time, but such a request is doomed. For example, if your workplace injury case concerns a narrow-aisle scissor-lift tipover, do not ask for information on accidents involving all tipovers of other types of aerial work platforms An aerial work platform (AWP) is a mechanical device used to provide temporary access for people or equipment to inaccessible areas, usually at height. AWPs may also be known as a lift table, lift platform or cherry picker. . Instead, ask about incidents involving the same accident mechanism as your client's and limit the request to the defective design or style. Seek incident information only for a legally relevant time period. In some jurisdictions, this period runs from when the manufacturer first sold similarly designed products to when it sold the product involved in your case. In jurisdictions that recognize a postsale duty to warn duty to warn AIDS A legal concept indicating that a health care provider who learns that an HIV-infected Pt is likely to transmit the virus to another identifiable person must take steps to warn that person , the relevant time period extends to the time of the accident. Second, prepare for standard defense objections. One common response is that the information involves trade secrets. Nonsense: There is no advantage that a defendant's competitors could achieve if accident information were disclosed, other than how to make the design safer. Another common objection is that similar-incident discovery is protected by the self-critical privilege. But manufacturers have had little success in arguing that they should not be compelled to divulge accident information they gather in order to make their products safer. (1) A well-focused discovery request usually overcomes this objection. Third, request similar-incident information concerning your alternative design. If the product lacked a safety feature that was incorporated into later models, ask for the accident history of the later models. Nothing is more powerful than the manufacturer's own statistics about the safety of a subsequent alternative design. Also, if the alternative design prevented accidents no better than the earlier design, you want to know this. Fourth, understand how the defendant collects and uses accident information. Before a manufacturer can argue that a lack of similar incidents proves its product is safe, it must establish that it has a comprehensive and reliable system for collecting accident data. Serve discovery seeking the sources of this information: Does it include filed lawsuits only or all reported claims? Does it compile accidents only or near-misses as well? What the manufacturer does with its accident information may speak volumes about the company or the product: Is it shared only with risk-management personnel and outside lawyers, or does the company provide the information to its design engineers to make products safer? Once you've received responsive answers to your written discovery, start making a product rime line that outlines the product story you will tell in opening. Use manufacturer-employee depositions to confirm the following timeline entries and fill in any gaps: * product class invented * product class patented * product class first sold * defendant began doing business * defendant developed defective product * defendant patented defective product * defendant first sold defective product * defendant received notice of other similar incidents * alternative design developed and tested * alternative design patented * alternative design first sold * defendant learns of alternative design * accident occurs Advance your theories Use employee deponents to advance the following themes or theories. Safety. Product safety is a fundamental theme. You should start by questioning the company's safety director or person in charge of product safety. Find out what he or she does to contribute to product safety and foster an environment in which safety is paramount. Then ask the product's lead engineer whether he or she has contact with the safety director, and what contributions the safety director made during the design stage of product development. You might ask other employees whether safety is the most important consideration at the company, ff the witness answers yes, the groundwork is laid for later contrasts: "If safety is the most important thing at your company, why didn't you [perform stability testing Stability testing can refer to:
tr.v. dev·as·tat·ed, dev·as·tat·ing, dev·as·tates 1. To lay waste; destroy. 2. To overwhelm; confound; stun: was devastated by the rude remark. companion theme: At John Doe John Doe formerly, any plaintiff; now just anybody. [Am. Pop. Usage: Brewer Dictionary, 329] See : Everyman Corp., money is more important than safety. Warnings. The warnings on a defective product can be used to great advantage, even when your client may not have heeded them. First, warnings show what hazards the manufacturer knew about. Use the warnings to prove that the defendant was aware of how its product might be used and what harms could occur from its use. Depose the lead engineer on the product and the safety director. Ask, How long has the manufacturer known its product might be used this way? What options did it consider in choosing how to address the potential for harm? Why didn't the manufacturer develop an alternative design rather than relying on a warning? How much money did the manufacturer spend trying to develop an alternative design to address this known potential for harm? Second, use the deposition to "lock in" the employee's testimony that warnings are an important way to ensure safe use. Confirm that the manufacturer expects users to read, understand, and heed the warnings and believes that they maximize the likelihood that its product will be used safely. Establish again that safety is the top priority for the company and that the warning at issue addresses a known potential for harm. Ask the deponent An individual who, under oath or affirmation, gives out-of-court testimony in a deposition. A deponent is someone who gives evidence or acts as a witness. The testimony of a deponent is written and carries the deponent's signature. deponent n. whether he or she reads and obeys warnings. If the reply is yes, it buttresses your claim that warnings are critical to safe use and must be as painstakingly pains·tak·ing adj. Marked by or requiring great pains; very careful and diligent. See Synonyms at meticulous. n. Extremely careful and diligent work or effort. developed and tested as the product itself. Your client's failure to follow the warning may well be the manufacturer's failure to develop a good warning. If the answer is no, you have a product-manufacturer employee who disregards warnings, undermining the manufacturer's ability to criticize crit·i·cize v. crit·i·cized, crit·i·ciz·ing, crit·i·ciz·es v.tr. 1. To find fault with: criticized the decision as unrealistic. See Usage Note at critique. your client for not following the warnings. Now, present your probing liability questions: How did the manufacturer develop the warnings? What model warnings did it have? Which industry standards did the manufacturer follow? Did it test the warnings for ease of understanding and effectiveness? How much time did it take to write and review the warnings? How much money did it cost to develop them? Did the manufacturer choose to use warnings because doing so was less costly than developing an alternative design? Other defendants. You can use the manufacturer's designated deponent to criticize another defendant. The product maker may help you build a case against an intermediary Intermediary See: Financial intermediary intermediary See financial intermediary. that failed to properly train the user in the product's operation or altered the product. For example, in one construction accident case, a worker was catastrophically injured in·jure tr.v. in·jured, in·jur·ing, in·jures 1. To cause physical harm to; hurt. 2. To cause damage to; impair. 3. when a coworker co·work·er or co-work·er n. One who works with another; a fellow worker. turned off a loader's backup alarm, then ran over the worker. The manufacturer's designee des·ig·nee n. A person who has been designated. testified that an automatic backup alarm was included as standard equipment on the loader A program routine that copies a program into memory for execution. model involved in the accident--in fact, it was standard on all backhoe loaders Backhoe loader, also called a Loader backhoe, and commonly shortened to Backhoe, is an engineering vehicle, which consists of a tractor, fitted with a shovel/bucket on the front and a small backhoe on the back. sold in the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. . He stated without hesitation that intentionally in·ten·tion·al adj. 1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary. 2. Having to do with intention. disabling dis·a·ble tr.v. dis·a·bled, dis·a·bling, dis·a·bles 1. To deprive of capability or effectiveness, especially to impair the physical abilities of. 2. Law To render legally disqualified. backup alarms is an outrageous breach of safety standards Safety standards are standards designed to ensure the safety of products, activities or processes, etc. They may be advisory or compulsory and are normally laid down by an advisory or regulatory body that may be either voluntary or statutory. : Q. How about in the field, have you ever intentionally disabled one? A. No. Q. Why not? A. Because it's absolutely against--it's a gross safety violation. The deposition then turned to the topic of installing a disabling switch to turn off the backup alarm: Q. If this had come to you, if your engineers or your sales staff had brought it to your attention--"backup alarm with cut-out switch"--what would you have done? A. Picked myself up off the floor. Q. And then what? A. Then got hold of [the product dealer] immediately. Q. And told them? A. This is totally ridiculous, not acceptable, and not safe. (2) Alternative design and subsequent measures. Generally, evidence of subsequent remedial measures A subsequent remedial measure is a term used in the law of evidence in the United States to describe an improvement or repair made to a structure following an injury caused by the condition of that structure. cannot be used to prove liability, but it may be admitted if it is probative Having the effect of proof, tending to prove, or actually proving. When a legal controversy goes to trial, the parties seek to prove their cases by the introduction of evidence. of some other disputed point, such as control or ownership? In product defect cases, a defendant manufacturer's later design may be used to establish technological feasibility. In deposition, the manufacturer's employee will have little choice but to admit the following: * The alternative design is technologically feasible. * The materials exist to build it, and the technology existed to build it at the time of sale. * It can be developed and manufactured without prohibitive pro·hib·i·tive also pro·hib·i·to·ry adj. 1. Prohibiting; forbidding: took prohibitive measures. 2. expense. * Consumers will buy the alternative design. * The alternative design will reduce the risk of harm to users. * The alternative design does not create unsafe conditions. Should the deponent refuse to concede con·cede v. con·ced·ed, con·ced·ing, con·cedes v.tr. 1. To acknowledge, often reluctantly, as being true, just, or proper; admit. See Synonyms at acknowledge. 2. these points, the manufacturer faces the danger that you will introduce its own later design (your alternative design) into evidence. Destroy defenses Use the following deposition tactics to defuse de·fuse tr.v. de·fused, de·fus·ing, de·fus·es 1. To remove the fuse from (an explosive device). 2. To make less dangerous, tense, or hostile: the defendant's arguments. The corporate designee notice. A comprehensive corporate designee notice under Federal Rule of Civil Procedure 30(b)(6) will set the stage for destroying your opponent's defenses and provide an important exhibit to the deposition. Even if you have already learned the identity of the manufacturer's designee, do not serve the notice in his or her name. A corporate designee notice should request that the defendant produce the person most knowledgeable about defenses that focus on the plaintiff's conduct. A manufacturer is obligated ob·li·gate tr.v. ob·li·gat·ed, ob·li·gat·ing, ob·li·gates 1. To bind, compel, or constrain by a social, legal, or moral tie. See Synonyms at force. 2. To cause to be grateful or indebted; oblige. to produce an individual to speak on its behalf. The courts have held that an inadequate designation amounts to a refusal or failure to answer a deposition question. Courts may require the refusing party to re-designate witnesses and may impose sanctions Sanctions is the plural of sanction. Depending on context, a sanction can be either a punishment or a permission. The word is a contronym. Sanctions involving countries: The company's designee should be able to support its contentions that the plaintiff assumed the risk, failed to heed warnings, caused the accident, misused the product, or was not an intended user of the product. The notice must demand the person most knowledgeable about other defenses as well: that the product was safe for its intended use, that it was materially altered, or that a third party caused the accident. Finally, the notice must address the defendant's contention that your alternative design is not technologically feasible, would face consumer resistance, is not commercially practical, would induce a false sense of security among users, or would not have prevented the injury. At the deposition, mark the notice as the first exhibit. Read through the exhibit with the witness, and have the witness state the categories for which the company has identified him or her as its designee. Ask how the person became the most knowledgeable employee on these subjects, what his or her sources of information were, and whether he or she searched relevant records before coming to the deposition. Do not hesitate to file a motion to compel A motion to compel asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the the manufacturer to produce a corporate designee who can answer and bind the corporation. (5) Get the company's--not the individual's--knowledge. Do not take "I" for an answer. Although you want to exhaust the designee's personal knowledge, his or her job is to answer for the company. If the witness does not know the answers to questions in the notice, ask who is most likely to know them. Follow up by asking why that person was not designated to testify on this topic instead of the witness. If the witness is evasive e·va·sive adj. 1. Inclined or intended to evade: took evasive action. 2. Intentionally vague or ambiguous; equivocal: an evasive statement. , say, "Since you are the company's designee and you do not know the answer, can we agree that your company does not have an answer to the question?" This often helps the designee "remember" who does know the answer. Videotape videotape Magnetic tape used to record visual images and sound, or the recording itself. There are two types of videotape recorders, the transverse (or quad) and the helical. . When you get the admission that advances your theories or destroys a key defense, you cannot afford to lose it. Always videotape the depositions of a manufacturer's employees. You will use sections of the videotaped depositions many times in the course of your case: in settlement packages; settlement conferences; mediations; pretrial conferences A meeting of the parties to an action and their attorneys held before the court prior to the commencement of actual courtroom proceedings. A pretrial conference is a meeting of the parties to a case conducted prior to trial. ; the depositions of other witnesses; and at trial during opening statements, witness examinations, and closing arguments. When you take a deposition by videoconferencing A real time video session between two or more users or between two or more locations. Although the first videoconferencing was done with traditional analog TV and satellites, inhouse room systems became popular in the early 1980s after Compression Labs pioneered digitized video systems , ask the videoconference vid·e·o·con·fer·ence n. A teleconference using video technology, such as closed-circuit television. vid operator to preserve it on videotape. Attack. Once you understand the manufacturer's defense claim and have pinned down its designee's articulation articulation In phonetics, the shaping of the vocal tract (larynx, pharynx, and oral and nasal cavities) by positioning mobile organs (such as the tongue) relative to other parts that may be rigid (such as the hard palate) and thus modifying the airstream to produce speech of the claim, go after it. Show how the defense does not reflect actual conditions in which the product is used, ignores physical evidence from the accident scene, or rests on untested or unproven unproven Dubious, nonscientific, not proven, quack, questionable, unscientific adjective Relating to that which has not been validated by reproducible experiments or other scientific methods for determining effect or efficacy assumptions. For example, in another construction accident case, a worker's skull was crushed under the weight of a 21,000-pound modular office while he changed a broken axle axle Pin or shaft on or with which wheels revolve; with fixed wheels, one of the basic simple machines for amplifying force. Combined with the wheel, in its earliest form it was probably used for raising weights or water buckets from wells. underneath the unit. Although the worker had placed a bottle jack under the steel frame that ran around the unit's perimeter, the jack was not centered precisely under the web (vertical face) of the I-beam frame. The flange flange (flanj) a projecting border or edge; in dentistry, that part of the denture base which extends from around the embedded teeth to the border of the denture. flange n. 1. (horizontal face) of the frame failed, bending upward, which allowed the bottle jack to kick out, and the unit crashed down on the worker's head. The plaintiff's theory was that every vehicle or trailer requires a dedicated, reinforced jacking point. The manufacturer argued that the worker was at fault for neglecting to place the jack directly under the I-beam's web. During deposition of the manufacturer's chief engineer, that defense was destroyed: Q. [Another defense witness] testified under oath Under oath could refer to:
A. Yes.... Q. How far off the center of the beam could the jack be before it would fail? A. If it were moved off even half or three-quarters of an inch ... [it] could bend the beam, could bend the flange. Q. When did you know that? A. I did some calculations recently to determine that [if] the jack was set off ... the edge, or the jack was not underneath the web, the flange would bend. Q. When did you do those calculations? A. Yesterday. Q. And why is it that you did the calculations yesterday? A. To get prepared for today. Q. You mean to get ready for this lawyer's questions? A. Correct.... Q. Did you ever do the calculations before you knew some lawyer was going to ask you about it--not worrying about a lawsuit but worrying about the safety of the men and women that might be working with that product in the field? A. No, I didn't. Q. You knew that it was likely to be jacked, right? A. Yes. Q. But you gave no thought whatsoever to designing a jacking system? A. None. (6) This exchange proved that while the manufacturer's lawyers contended the plaintiff was at fault for mispositioning the jack, the manufacturer's chief engineer did not know how far off the web a jack could be positioned before the frame would fail. Thus, the manufacturer itself did not know whether there was any safety margin or what constituted proper versus improper placement of the bottle jack. These approaches provide a basic framework for deposing any product manufacturer's employee. Focus on obtaining facts, advancing your theories, and destroying the manufacturer's defenses. Make each witness commit to the paramount importance of safety, and have witnesses detail every action taken to create a safe product. With the depositions on video, you'll have plenty of compelling evidence that a jury can see, not just hear. Notes (1.) See, e.g., Weeks v. Remington Arms Remington Arms is a major American manufacturer of rifles, shotguns, other firearms, revolvers and ammunition. They also license the Remington name to hunting apparel, Arctic Cat ATV's, and other hunting and shooting products manufactured by other companies. Co., 733 F.2d 1485, 1490-91 (11th Cir. 1984); Caruso v. Coleman Co., 157 F.R.D. 344, 347 (E.D. Pa. 1994); Majdic v. Cincinnati Mach. Co., 537 A.2d 334, 340-41 (Pa. Super. Ct. 1988). (2.) Deposition of Matthew Fagnani, Johnson v. Wenner Ford (Pa., Philadelphia County Ct. Com. Pl. June 19, 2001) (No. 580). (3.) FED. R. EVID. 407; PA. R. EVID. 407. (4.) See, e.g., Dwelly v. Yamaha Motor Corp., 214 F.R.D. 537 (D. Minn. 2003) ; Alexander v. FBI, 186 F.R.D. 148, 151-54 (D.D.C. 1999); United States v. Taylor, 166 F.R.D. 356, 360-63 (M.D.N.C.) (citing 8 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE [section]2103, at 33, 36-37 (2d ed. 1994)), aff'd, 166 F.R.D. 367 (M.D.N.C. 1996); Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126-27 (M.D.N.C. 1989); see also Mark Kosieradzki, It's All in the Documents, TRIAL, July 2005, at 36. (5.) See, e.g., Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75-76 (D. Neb. 1995); Marker, 125 F.R.D. 121,126-27; see also Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 637-39 (D. Minn. 2000). (6.) Deposition of Jay Wood, Garman v. Mark Line Indus. (Pa., Philadelphia County Ct. Com. Pl. Mar. 19, 2002) (No. 1104). ROBERT J. MONGELUZZI is a founder of Saltz Mongeluzzi Barrett & Bendesky in Philadelphia. DAVID David, in the Bible David, d. c.970 B.C., king of ancient Israel (c.1010–970 B.C.), successor of Saul. The Book of First Samuel introduces him as the youngest of eight sons who is anointed king by Samuel to replace Saul, who had been deemed a failure. L. KWASS is a partner with the firm. |
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