Defective Consumer Product Attorneys - PDF by ato42904


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									                                                   Guest Writer

                                            Preparing the
                                            Product Case
                       Richard                                                               notice, including owners, tow
                       Alexander                                                             operators, wrecking yards,
                                                  by RUhard Alexander                        police impounds, and the like,
                       is a trial
                                                                                             that they must take every step
                       lawyer in
                                                                                             to preserve important evidence
                       San Jose,                                                             and the failure to do so will
                       California,          and if anyone should have second                 subject them to being sued for
                       specializing in      thoughts about buying a wrecked             allowing evidence to be destroyed.
                       negligence,          Bronco, a Jeep that rolled or a vehicle
                                            that has a gas tank that failed, keep in       When the product is in the posses-
                       chemical, avia-                                                  sion of a third party or one of the
tion, defective product and consumer        mind that it is comparatively inex-
                                            pensive to buy a wrecked car, for           anticipated defendants, immediately
fraud litigation for individuals in                                                     file an independent action for a tem-
                                            example, compared to the value of a
class actions. He received his J.D.         successful product liability case and       porary restraining order and a
from the University of Chicago in           if worse comes to worse it can be           preliminary injunction to avoid
1969, National Honor Scholar. Mr.           sold, but once it is lost it is gone for-   alterations or destructive testing.
Alexander was the first recipient of        ever.                                       The temporary restraining order
the "Man of the Year" Award by the                                                      should be carefully drafted so that
                                               Once you gain ownership of the           anyone receiving notice of the order
 Women's Fund, a "special recogni-                                                      and in control of the article will be
                                             defective product, lock it up in a
tion for supporting women and                facility that you control. Never           required to deliver it to the posses-
significantly contributing to the bet-       assume that no one will want the           sion of a neutral person and to
terment of women in today's world"           wreckage of a destroyed automobile.        initiate preventive measures against
in May 1989. Mr. Alexander is mar-          In two cases against BMW alleging           damage in transit.
ried to Nancy Biebel, has two               the gas tanks in models 1600 and
                                                                                           Next, obtain the complete history of
children, Marshall and Meridith and         2002 were defective, the hulks mys-
                                                                                         the article. Determine the date of the
resides in Palo Alto, California.           teriously disappeared. In another
                                                                                        original sale, identity of the dealer,
                                            case in which four teenagers burned
                                                                                        distributor, subsequent purchasers,
                                            to death in a 1978 Dodge
       ntroduction                                                                      lessees and users. Locate the instruc-

                                            Ramcharger equipped with a plastic
          A products case is won or lost                                                tion booklet, assembly booklet,
                                            tank, an investigating service
       in the early days following the                                                  warranties and all other written
                                            believed to have been retained by
       accident, when the preliminary                                                   material that accompanied the new
                                            Chrysler offered to buy the burned
investigation must be initiated. This                                                   product at the time of the original
                                            hulk from the wrecking yard. In the
article will offer some suggestions on                                                  sale and distribution. Determine
                                            case of the BMW, investigators for
                                                                                        whether the article was modified or
how to proceed in order to increase         the car manufacturer photographed
                                                                                        otherwise changed after it left the
the client's chance of success.             the evidence six months before the
                                                                                        possession of the manufacturer and
                                            injured plaintiff retained his own
                                                                                        distributor and, if so, the identity of
Immediate Investigation                     attorney. Major manufacturers care-
                                                                                        the persons or entities which made
                                            fully read newspapers and
   The first priority is to call an expe-                                               the modification and the dates
                                            whenever possible secure evidence
rienced products liability attorney                                                     involved.
                                            to deny plaintiffs the ability to pur-
who will make sure that all evidence        sue claims.                                   Obtain the basic background
is preserved. Remember that the                                                         data. This includes a complete
product must be secured immediate-             If the evidence cannot be bought,        description of the article, the manu-
ly. Never be afraid to buy wreckage         at a minimum put everyone on                facturer, distributor, sources of all

34    February 1993 The Legal Secretary
 component parts and all written                  regulations, and safety orders concern-      purpose is to reduce injuries. The
 materials pertaining to the produce              ingavarietyofproductscanassist.              Commission issues consumer prod-
 advertising brochures, instruction                                                            uct safety rules and can ban
 booklets^ technical data, parts man-               The discovery ofaviolation gives           hazardous products. It maintains an
 uals, repair manuals, operating                  the plaintiff^sattorney an outstand-         Injury Information Clearinghouse
 manuals, catalogs, technical and lay            ing advantage. Not only maya                  to investigate and disseminate data
 advertisements, blueprints and dia-             statutory scheme such as the                  relating to the cause of injuries asso-
 grams of the article and component              Consumer products ^afetyAct, pro-             ciated with consumer products.
 parts.                                          vide foradirect civil remedy,but
                                                 counsel may also locate agencies                TheNationalTechnical Informa-
   Buy two or more duplicate prod-               concerned directly with the product          tion service of the 1^1. 5. Department
ucts for later testing and use at trial.         which can serve asabasis for gath-           of Commerce suppliesawide range
C^ften designs and product litera-               ering further information. federal           of technical information and hasalit-
ture will change or are simply not               statutes encompass aircraft, automo-         erature search service.
available as trial time draws near.              bile equipment, boats and boating
buying exemplars at the beginning                equipment, insecticides, medical                The Occupational safety and
ofacase can pay important divi-                  devices, hazardous substances,               r^ealthAdministration^O^IfA^pub-
dends later when the defendant                   highway safety,household refriger-           lishes numerous regulations and
r^anufacturer explains that the orig-            ators, packaging to protect children,        pamphlets on workplace safety and
inal engineering drawings no longer              mobile homes, motor vehicles, natu-          health standards, the use of industrial
exist asaresultofacorporate                      ral gas pipelines and occupational           substances, and safety in industrial
destruction program. If you own                  safety and health.                           and construction operations.
exemplars it does not matter if you
d o not have the original plans.                     In California, as well as other            Another source for information on
                                                  states, the Legislature has provided        regulated substances is the
                                                  standards forabroad range of prod           environmental protection Agency,
^e^endants                                                                                    which has the authority for air, water
                                                  ucts^ animal fee, blood products,
   The potential defendants inaprod-             brake fluid, canned foods, barbecue          and pesticide standards.
u^cts case include the manufacturer,             charcoal, electrical power lines,               Information concerning standards
assembler,component supplier, test-              excavations, fire extinguishers,             for various products and materials is
ing laboratories, advertising agencies,          flame retardants, bedding, ceramic           available from the Office ofTechnical
distributors, retailers and repairers.           tableware, fireworks, honey,water,           Information and publications of the
lseegenerally,^^acificL.J.^5                     paint, meat, milk, petroleum prod            National Bureau of standards.
^7^,9^nivofCalDavisLRev                          ucts, pipelines, cranes, trenches,
^1^7^.1                                          plastic bags, radioactive materials,            The I^ood and Drug Administration
                                                 swimming pools and toys. In addi-            should be contactedincases involv-
   It is always important to name not            tion, the California Division of             ing food, drugs, medical devices or
c^nly successor, but predecessor cor-            Industrial safety issues safety orders       cosmetics. The l^DA establishes the
porate manufacturers. l ^ ^ v . B ^ ^            regarding aerial trams, boilers, com-        standards for regulated products and
^^19Cal^d22.1Insomejurisdic                      pressed air, construction safety,            also has information on drug ingredi-
tions,apurchaser of an existing                  electrical safety,elevators, mobile          ents and food and drug manufac-
business does not assume the liability           equipment, plant equipment, dan              turing methods.
ofaformer corporation unless such                gerousmachinery,power
liability is expressly assumed ina                                                               electronic products which may
                                                 transmissionequipment, high volt-            emit radiation are regulated by the
contract of sale or under circum-                age electricity,sawmills, mines, oil
stances where two corporate entities                                                          Bureau of Radiological rlealth, which
                                                 drilling, oil refining, ship building,       has information concerning research,
bave merged. In these cases it is                tunnels and window cleaning.
important to name the predecessor                                                             testing, and recall campaigns.
corporation.                                        5tate police or the highway patrol           TheNationalTlighway Traffic
   In addition, bailors and lessors can          should be checked for regulations            safety Administration develops and
be held strictly l i a b l e . ^ o ^ ^ v . D ^   concerning the use and equipment of          issues safety standards for all new
^^^^^^^^^^.^thCir.19^                            motor vehicles. Most state fire mar          cars, conducts research on accident
^0^I^.2d867. An employer who man-                shals issue fire safety standards and        prevention, investigates motor vehi-
ufactured the defective product for              basic building design and construc-          cle defects and enforces notification
sale to the general public can be liable         tion standards.                              of defects to owners of record.
in tort. 1^^ v . l ^ ^ s ^ ^ ^ ^ ^ , ^ .                                                      Numerous publications are pro-
                                                   Numerous federal agencies can
^1^1^0Cal^d2^1                                                                                duced by the Administration for
                                                 help the attorney prepare the
                                                                                              consumers and their lawyers. The
^ ^ ^ e r n m e n t a l Assistance                                                            federal highway Administration is
                                                   The 1^.5. Consumer products                concerned with improving highway
   In proving the plaintiffscase,a               safety commission is an indepen-             safety and conducts highway safety
plethora of federal and statestatutes,           dent federal agency whose main               research relating to trucks and buses.

                                                                                            ^ ^ ^ ^ ^ ^ T ^ ^ ^ ^ ^ ^              ^
The Transportation Research Board         and the highway safety Research           prevent failure, but this safety
will conductacomputeri^ed search          Institute in Ann Arbor,Michigan, all      device had not been utilised until
and furnish abstracts of all engineer-    do research in the field of automo-       after field complaints confirmed the
ing articles pertaining to highway        bile design The society of                need for this feature. This informa-
topics.                                   Automotive engineers in                   tion flowed fromafew hours in the
                                          Warrendale, Pennsylvania, main            library andatelephone call and
  The Llnited states Coast Guard sets     tainsacomplete library on                 short letter to the author.
standards, makes factory inspections      automobile components and safety
and conducts investigations of con        standards.                                  Oftenacompetitorofthedefen-
sumer complaints of defective boats.                                                dantmanufacturer will refer you toa
The Coast Guard notifies boat owners      expert Advice                             recently retired employee "with forty
when defects are found.                      The search for product information     years experience in the field" who is
                                          is often an arduous task and in many      now consulting. While many such
  ^ome other federal agencies that                                                  persons can never shake their^com-
can assist the plaintiff'slawyer are      cases will be assigned to an expert in
                                          the field. I^indingaqualified expert      pany" orientation, they are useful for
the I^ederalAviation Administration,                                                referrals to other qualified persons in
the National Transportation safety        at the outset is usually the major fac-
Board, and the federal I^ire Council.     tor in successfully proving the           the industry.
                                          plaintiff'scase.                            Apatent search also can bea
private ^onrces of product                                                          source of potential experts, and
Information                                 Althoughauniversity professor
                                          may make an excellent witness, the        most patent files contain numerous
   Take advantage of the enormous         skilled technician or mechanic should     references to industry data not cat-
amount of safety and accident pre-        not be overlooked.                        alogued or otherwise indexed. In
vention information published by                                                    arecent case involving the loss of
insurance organisations. The factory         Lists of experts in various fields     aneyefromachipofmetalfroma
Mutual engineering Corporation of         can be purchased from the                 backhoetooth,atechnical manager
Norwood, Massachusetts, publishesa        California Trial Lawyers, 5an             of the original patent explained the
catalog ofbooks, pamphlets and films      I^ranciscoTrial Lawyers and the Los       thirty-year history of the product
on the prevention of industrial acci-     Angeles Trial Lawyers Associations.       and how the accident backhoe
dents and data containing technical       The ^ ^ ^ ^ c ^ R ^ ^ ^ i n addition      tooth was never intended to be cast
information for preventing losses by      to its monthly report of verdicts,        asasingle piece and thatthis man-
fires, explosions and machinery acci-     publishesavaluable semiannual             ufacturing method was in fact
dents.                                    index of all experts who have testi-      responsible for the plaintiff'sblind-
                                          fied during the preceding six             ness.
  The American Insurance                  months. The list is indexed by name
Association maintains an engineering      and field and is cross-referenced to         In addition to utilising engineer-
and safety service and has pamphlets      the reported verdict, ^houldapar-         ing testimony,consideration should
concerningawide range of accident         ticular expert interest you, speak        also be given to psychologists or
prevention topics.                        with the attorney for whom the            experts specialising in the field of
                                          expert testified. Determine the           human factors. Onoccasionastrict
   Technical and scientific informa-                                                engineering approach fails to con-
tion can be located in several indices    nature and extent of the expert's
                                          qualifications and his or her impact      sider thataproduct must be
which contain references to scientific                                              designed so that people can safely
books, articles and reports on almost     on the jury.
                                                                                    use it. Abio-mechanical analysis
everyproduct manufactured. The               Aliterature search can usually         can revealahidden trap for the
Applied scienceandTechnology              providealist of potential experts on      unwary user orapractical way to
Index, engineering Index, and             the esoteric subjects or,atamini-         prevent injuries. Inacase against
science Citation Index should be          mum, will lead to qualified experts       the manufacturer ofadefective
checked.                                  willing to consult with attorneys. In     industrial switch that exploded and
    The National^afety Council,           arecent case involvingavintage fire       spewed burning oil,ahuman-fac-
National I^ire protection Association,    hose coupling which failed when           tors consultant envisioned an
American National standards               placed under pressure, all identify-      inexpensive safety lock that could be
Institute, American Chemical society,     ing marks had been obliterated by         added to the existing design at little
American society ofMechanical             use and the manufacturer was              cost and which would have prevent-
engineers, American Water Works           unknown. Aliterature search               ed the plaintiff'scatastrophic
Association, and the Manufacturing        uncovereda5an Diego author,an             injuries.
Chemist'sAssociation all have scien-      expert on fire hose coupling threads,
                                          who was able to identify the small           In appropriate cases, testing, either
tific and technical data.                                                           destructive or nondestructive, may be
                                          Wooster,01uo, manufacturer froina
  The Automotive safety                   photograph of the coupling. After         necessary to determine whether there
foundation inWashington, the              service the manufacturer admitted         is evidence that the product failed or
Transportation safety Department          that the coupling had been original       could fail in the manner theorized by
of Calspan in Buffalo, New^ork,           ly designed with set screws to            the plaintiff.

36    February 1993 The Legal Secretary
 Ap^roacnes to discovery                    including employees of the manufac-        door opened unexpectedly Detailed
                                            turer and others consulted                 discovery was the key to the plain-
    Theplaintiff'sexpert should also        concerning the design. Reasons for         tiffssuccess. Two years before the
 help determine exactly what informa-       selection of the design in question        accident, in June 1972, one of the
 tion needs to be developed or              from alternates should be explored,        defendant'sengineerswroteamemo
 obtained in the course of discovery.       as well asadescription of safety fea-      stating^
   Carefully drafted interrogatories        tures, the persons designing such                "The fundamental safety of
can beastrong tool to perfect the           safety features and all subsequent            the cargo door latching system
plaintiff'sclaim. Interrogatories           testing of safety features.                   has been progressively degrad-
should identify and locate blue-              Informationregarding safety                 ed since the program began in
prints and diagrams of the product         devices known toamanufacturer but              1968.The airplane demons
and component parts, the materials         notused should also be obtained.               strated an inherent suscep-
used in manufacture and their sup-         Much testing goes on during design-            tibility to catastrophic failure
pliers,abreakdown and analysis of          ing andadescription of each test
the manufacturing and quality con                                                         when exposed to explosive
                                           conducted with all test records should         decompression of the cargo
trol processes, the schedule of            be elicited from the defendants.
inspecting and testing of the prod                                                        compartmentin 1970 ground
                                           Counsel should also determine the              tests."
uct, patents and patent applications,      intended use ofthe product when the
dealer bulletins, advertising materi-      design was originally considered and          The Rinto case is another important
als, trade journals and scientific         the contemplated conditionsunder            example. l ^ ^ ^ ^ v . ^ ^ M ^ ^ C ^
journals.                                  which the productwas to be operated.        ^1981^ 119Cal.App.^d 757,791-792.1
                                                                                      In this case internal I^ord engineering
    Insomeinstances,amanufacturer             Often answers to interrogatories        studies concluded that the cost of
may have an indexing system to all         will provide you with an opportunity       paying victims for injuries and deaths
its records. In the birth control pill     to gain access to valuable test data       would be less expensive than
litigation with dearie Company,man-        and interoffice memoranda. During          installingadevice that could help
ufacturerofL^novid, dearie denied          theM^RB291itigationagainst                 prevent gasoline from escaping from
that one of the known side effects         Richardson-MerrellCompany,a                vehicles in collisions. This famous
was thrombophlebitis. In the course        number of skeletons were found hid-        "Crush" memo, named after its
of discoveryacomputer printout list-       ingincorporate file drawers. 12ee          author, was the basis ofa^l27 mil-
ing complaints from doctors about          To^v.R^^^^M^^^19^221                       lion punitive damage award.
the side effects was located which         Cal.App.2d 6^9.1 MLRB29 was
referred to numerous complaints of         developed and marketed to help                These documents also prove the
thrombophlebitis.                          reduce blood cholesterol. One side         truth of litigator^sadage that "the
                                           effect was the appearance of               paper does not lie." ^very successful
   Interrogatories should also obtain      cataracts on the eyes of some users,       product liability case rests onasolid
information pertaining to subsequent       which led to partial loss of sight in      foundation of thorough discovery of
design or manufacturing changes,           some cases.                                internal corporate records, which can
since evidence of subsequent changes                                                  provide unimpeachable, convincing
is admissible in products litigation.        Overathousand personal injury            proof of liability.
IB^^v.^^^^^l^^s^C^.                        claims were eventually filed. In the
^l^^Cal^dll^l                              course of discoveryamemorandum             conclusion
    Interrogatories must identify perti-   detailing cataracts in laboratory dogs
                                           and monkeys was found. The fact               Because product liability cases
nent standards issued by engineering                                                  require detailed preparation, an early
associations concerning the product        that Richardson-Merrell had con
                                           cealed this knowledge was proved           determination of potential liability is
in question and locate the complete                                                   essential before expensive discovery
accident history file for the product      through interoffice memos obtained
                                           through discovery.                         is undertaken. The importance of
and other similar models, and infor-                                                  promptly securing tbe defective
mation concerning any other                  When doctors began to realise the        product and fully utilising inexpen-
lawsuits. Counsel should determine         side effects of ML^RB29 they were          sive sources of product information
if the manufacturer maintainsasafe-        contacted by Richardson-Merrell            can reduce the cost of litigation and
ty committee and whether or not            employees' One interoffice memo-           at the same time provide valuable
minutes of discussions exist.              randum advisedaRichardson-                 aids for establishing liability
determine if there isaregular docu-        Merrell employee to respond toa
ment destruction program and, if so,       complaining doctor by cooperating
what documents have already been           with him in hope that it might keep
destroyed.                                 him from publishing before
  Interrogatories should identify          Richardson-Merrell could ^snow"
each person connected with the             him with data from other sources.
design not only of the product in
                                            Inal^^l^aris air crash, ^ ^ people
question but of similar products,
                                           were killed when an aircraft baggage

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