Product Liability: Winning Strategies and Techniques.

Transcription

1 Brochure More information from Product Liability: Winning Strategies and Techniques. Description: In this authoritative guide, two experienced litigators share the strategies and techniques they have developed for handling product liability cases. Product Liability: Winning Strategies and Techniques draws on the authors' nearly 60 years of combined experience. From the initial client interview through every step in building the case, this book provides hundreds of valuable ideas and tactics from the perspective of both plaintiffs' and defendants' counsel. You'll discover: interview techniques that put the client at ease, help you communicate your professional qualifications, elicit the information you need to evaluate the client's case, and generate business while preserving ethical integrity; the kinds of discoverable data a computer system's custodian controls; early procedural choices that can have a serious impact on the outcome of the trial; how to lay the foundation for strict product liability in the plaintiff's trial briefs and instructions; and the six common defenses in a failureto-warn case. Contents: CHAPTER 1 Initial Client Interview, Case Evaluation and Early Procedural Choices Interviewing the Client [1] What the Client Expects [2] Setting Up the Interview [3] The Interview Evaluating the Case [1] Choosing the Client [2] The Attorney's Portion of the Initial Interview: Business and Ethical Considerations [3] Initial Interview of the Defendant [4] Billing Scheme for the Plaintiff-Client [5] Conflict of Interest Early Procedural Choices [1] Pre-Pretrial Motions [2] Initial Pleadings [3] Demurrers Motion to Strike Judgment on the Pleadings [4] Summary Judgment [5] Protective Orders CHAPTER 2 The Heart of a Products Liability Case Strict Liability The Plaintiff's First Step: Assuming Control Determining Whether There Is a Strict Liability Case [1] The Requirement that a Product Be Involved [2] Examples of Products [3] Examples of Non-Products A The Defendant's First Step: Redefining the Case Determining the Seller of a Product [1] Service or Sale [2] Engaging in the Business of Selling a Product [3] Presumption of Due Care in Manufacture's Compliance with State and Federal Regulations (or Negligence Per Se in Violation) Identifying Persons Who May Recover Under the Doctrine of Strict Liability [1] Witnesses to Product-Related Accident and End Users [2] Employee of Manufacturer [3] Second and Third Generation Products Liability [4] Person Whose Reputation Was Damaged Because of Defective Product Establishing a Defect and Causal Connection [1] Proof of Actual Defect [2] Inference of Defect [3] Altered or Modified Products

2 Consumer Expectation Test: The First Principle [1] Definition [2] Response to Criticism of Consumer Expectation Test [3] The Other Side of the Coin of Consumer Expectation: The Open and Obvious Defense CHAPTER 3 Duty to Warn: Plaintiff's Response The Dangers of a Well Made Product [1] Design Comes First [2] Warning Overview Manufacturer Conduct [1] The Manufacturer's Experts Should Know Better [2] The Safety Market [3] Follow the Money, as the Manufacturer Did [4] Failure to Study Is a Failure of Due Care [5] Trade Associations Under Attack Attacking the Defenses [1] The Adequate Warning Defense [2] The State-of-the-Art Defense [3] The Open and Obvious Defense [4] The Causation Defense [5] The Sophisticated User Defense [6] The Assumption of Risk Defense [7] The Component Part Defense: Passing the Buck [8] The Bulk Supplier's Defense: More Buck Passing [9] Assembler's Liability: the Buck Stops Here Post-Sale Duty to Warn CHAPTER 4 Design Defect Planning a Design Defect Case Negligence Consumer Expectation The Main Objective in a Design Case: Risk-Utility Analysis The Road Not Taken Alternative Design Restatement (Third) of Torts: An Actual Restatement or a Political Statement? [1] General Overview of the Restatement (Third) Concerning Design Liability [2] Plaintiff's Strategic Response to Restatement (Third) Arguments [3] Restatement (Third) Offers Plaintiff an Out: Inference of Design Defect [4] End Run Around the Reasonable Alternative Design Factor [5] End Run Around the Reasonable Alternative Design: The Alternative Product With the Same Function [6] End Run Around Concept of Design Defect: Product Flaw and Self-Evident Need for an Alternative Design Failure to Warn: The Warning as an Element of Design Failure to Warn: Design Defect, Implied Warranty, and Consumer Expectations Paths Around a Preemption Defense Crashworthiness: The Failure to Plan for the Worst [1] In General [2] Burden of Proof; Apportionment of Damages from Concurrent Causes Custom Made Products: The Other Guy's Design Breach of Warranty, Misrepresentation and Fraud: Broken Promises CHAPTER 5 For the Defendant: Defenses and Counterattacks Defenses and Counterattacks Generally Defenses Based on Plaintiff's Conduct [1] Contributory/Comparative Negligence [2] Assumption of the Risk [3] Plaintiff's Misuse/Abuse of the Product [4] Plaintiff's Alteration of the Product [5] Open, Obvious and Reasonable Danger [6] Plaintiff's Violation of Statute or Regulation [7] Plaintiff's Reliance not Justified [8] Unusually Susceptible Plaintiff

3 [9] Lack of Notice of Breach of Warranty [10] Plaintiff's Duty to Mitigate Damages Defenses Based on the Passage of Time [1] Statutes of Limitations [2] Statutes of Repose [3] Useful Safe Life Defense Defenses Based on Authority [1] Preemption [2] Compliance with Statutes and Industry Customs [2A] Claims Barred by State Statute [3] Government Contractor Defense [4] Compliance with Contract Defense Defenses Based on Causation [1] Learned Intermediary [2] Intervening Cause [3] Bulk Supplier Defense [4] Sophisticated User Defense [5] Product Identification Defenses Based on Lack of Fault [1] Product Not Defective [2] State of the Art [3] Unavoidably Unsafe Products [4] Adequate Warning Other Defenses [1] Res Judicata; Collateral Estoppel [2] Workers' Compensation Exclusivity Defense [3] Market Share and Other Non-Identification Theories Contribution and Indemnity [1] Generally [2] Contribution [3] Indemnity Jurisdictional Defenses [1] Lack of Personal Jurisdiction [2] Forum Non Conveniens [3] Lack of Subject Matter Jurisdiction [4] Federal Jurisdiction in Class Actions CHAPTER 6 Discovery Introduction Commitment to Ethical and Moral Behavior Using Civility as a Rule to Avoid the Use of Sanctions Informal Discovery [1] Expert Selection [2] Capturing the Scene [3] Capturing Memories [4] Public Sources [5] Interviews (Ex Parte) with Company Employees Formal Discovery: Interrogatories [1] Plaintiff's Interrogatories [2] Defendant's Interrogatories [3] Trial Interrogatories Where Discovery Really Starts for the Plaintiff: Electronic Records and Other Documents [1] Electronic Discovery: Finding the Nerd [1A] Informal Electronic Discovery: Be the Nerd [2] Accessing Deleted Files [2A] Hidden and Embedded Data [3] Skeletons in the Cyberspace Closet [4] The Electronic Filing Cabinet [5] Checklist for Cyberspace Discovery [6] Shared Electronic Discovery [7] Countering Objections to Admissibility [7A] 2006 Amendments to the Federal Rules of Civil Procedure: E-discovery

4 [8] Summary: Practical Problems of E-Discovery Expert Conflicted Out : Retaining the Other Side's Expert Dangers of Inventive Trial Preparation: Discoverability Discovery of Jury Survey and Witness Grooming Data Inadvertent Disclosure of Privileged Information [1] Introduction [2] Sources of the Problem [3] The Variety of Common Solutions of the Problem [4] Communicating with One's Client and Furthering the Client's Goals [5] Look Before you Surrender: Guessing at Privilege [6] Conclusion CHAPTER 7 Pretrial Use of Experts Introduction and Background Using Experts to Prepare the Product Liability Case [1] Reasons for Early Retention of Expert [2] Finding and Hiring an Expert [3] Experts' Roles During Preparation of the Case Protecting the Expert [1] Drawbacks of Early Retention [2] Distinctions Among Experts Afforded by the Discovery Rules [3] Implications of the Rules CHAPTER 8 Scientific Evidence in Toxic Tort, Drug, Biologic and Medical Device Cases Introduction and General Principles [1] The Evolving Role of the Attorney [2] Criteria for Admissibility of Scientific Evidence [3] Daubert and Class Certification [4] Lone Pine Orders Practical Steps in Gathering Evidence [1] Understanding the Product [2] Understanding the Claimed Injury [3] Reviewing the Medical Records Plausibility of a Causal Connection Evaluating a Scientific or Medical Study [1] Distinguishing Between a Study and a Report [2] Determining Whether the Study Has Been Peer-Reviewed [3] Obtaining an Overview from the Study's Abstract, Tables and Figures [4] Examining the Methods Section [5] Results and Statistics [6] Checking the Conclusions Specialized Kinds and Sources of Scientific Evidence [1] Toxicology and Animal Research [2] DNA and RNA Evidence [3] Industry and Gray Literature Finding Skeletons in the Closet Presenting a Coherent Story CHAPTER 9 Streamlining the Case Introduction Defense Motions for Summary Judgment [1] Inability to Identify Defendant as Manufacturer of Product Which Caused Injury [2] Inability to Prove Defect [3] Lack of Causation [4] Deficiencies in Warning Claims [5] Public Policy Justifications for Summary Judgment [6] Other Legal Defenses Plaintiffs' Motions for Summary Judgment Motions in Limine [1] Evidence of Similar Accidents

5 [2] Evidence of the Absence of Accidents [3] Evidence of Subsequent Remedial Measures [4] Demonstrative Evidence [5] State of the Art Evidence [6] Evidence of Settlement or Settlement Offers [7] Scientific Evidence; Gatekeeper Motions [8] Other Evidentiary Issues Other Streamlining Techniques [1] Simplifying Evidence Through Discovery [2] Motions to Amend Pleadings [3] Offer of Judgment Pretrial Orders and Stipulations [1] Pretrial Orders [2] Stipulations Bifurcation of Issues CHAPTER 10 Special Considerations in Cases Involving Prescription Drugs or Medical Devices Introduction Strict Liability and Comment k [1] Unavoidably Unsafe Product Doctrine [2] Applicability of Unavoidably Unsafe Product Doctrine to Prescription Drugs and Medical Devices [3] Effect of the Restatement (Third) of Torts on Design Defect Claims [4] Practical Considerations Warning Claims [1] The Learned Intermediary Doctrine [2] Content of the Warning [3] Off Label Use [4] Manner of Conveying the Warning [5] Practical Considerations Causation Problems [1] Product Identification-Identifying the Defendant That Allegedly Caused The Harm [2] Establishing Proximate Cause Liability of Bulk Suppliers Effect of the Food, Drug and Cosmetic Act [1] FDA's Regulatory Role [2] No Private Right of Action [3] Express and Implied Preemption Generally [4] Fraud on the FDA Claims and Regulatory Compliance [5] Express Preemption for Medical Devices [6] Implied Conflict Preemption for Prescription Drugs and Medical Devices [7] Over-the-Counter Drugs [8] Vaccines [9] Practical Considerations CHAPTER 11 Spoliation of Evidence: A Threat to Both Plaintiffs and Defendants Introduction The Spoliation Tort: Some Background Proving a Spoliation of Evidence Case [1] Existence of a Potential Civil Action [2] Legal or Contractual Duty to Preserve Evidence [3] Destruction, Alteration or Loss of Evidence Needed for the Underlying Action [4] Causal Relationship Between Evidence Destruction and Proving the Lawsuit [5] Damages Alternative Remedies to the Spoliation Tort [1] Evidence Exclusion and Discovery Sanctions [2] Adverse Inferences and Rebuttable Presumptions [3] Spoliation of Electronic Evidence Avoiding Spoliation Claims and Evidence Exclusion Orders [1] Avoiding Spoliation Claims [2] Reacting to a Spoliation Claim Defenses to a Spoliation Claim

6 [1] Statute of Limitations and Laches [2] Workers' Compensation as an Exclusive Remedy [3] No Legal or Statutory Duty to Preserve Evidence [4] Evidence Neither Needed nor Essential for Pursuit of the Underlying Claim [5] No Significant Impairment to the Underlying Case [6] No Causal Connection [7] Speculative Damages [8] Other Defenses Further References CHAPTER 12 Proof of Damages: Putting a Value on Injuries Introduction; General Standards Compensatory Damages [1] Traditional Theories [2] Special Issues [3] Developing Damages Theories Punitive Damages [1] Constitutionality [2] Other Limitations [3] Burden of Proof [4] Obtaining Evidence of Punitive Damages CHAPTER 13 Settling a Products Case Introduction: Tactics and Strategy in the Art of Settlement Trial vs. Settlement [1] General Considerations [2] Settlement without Litigation Facilitating Settlement in Multiple Party Litigation [1] Limiting or Splitting Issues [2] Consolidation and Multi-District Litigation [3] Class Actions [4] Aggregate Settlements [5] Inventory Buyouts [6] Contingent Settlements [7] Matrix Model [8] Lien Issues [9] Future Impact of Settlement Establishing Ground Rules of Settlement Generally [1] Cost Sharing Agreements [2] Confidentiality Settlement Paths [1] Judicial Management [2] Court-Annexed Settlement Procedures Packaging the Offer [1] Statutory Offers of Settlement [2] Partial Settlements [3] Structured Settlements [4] Oral Contracts of Settlement [5] Release Clauses Living with the Settlement [1] Enforcement of Settlement Agreement [2] Settlement's Effect on the Jury [3] Settlement's Effect on the Verdict Index Ordering: Order Online - Order by Fax - using the form below

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