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Practice Tip: Mounting an Effective Defense to Use of the 'Malfunction Theory'
For product liability practitioners, issues regarding liability historically have been won or lost in a battle of the experts. The reason: The plaintiff must show the product at issue contains a defect, which existed at the time it left the manufacturer's control, that caused the plaintiff's injury. Whether on the side of the plaintiff or the defendant, the most significant liability battle is waged over proving the existence of a defect, which usually requires reliance on expert testimony. With the increasing reliance of plaintiffs' counsel on the malfunction theory to establish product defect, the focus in some product liability cases has shifted from reliance on effective expert testimony to reliance on creative and effective lawyering.
Decades ago, American jurisprudence began blurring the lines between classic strict liability and negligence principles in product liability lawsuits. The lines initially were blurred with the application of res ipsa loquitur principles to liability issues and with the application of comparative fault principles to damage issues. In many jurisdictions today, those lines are not merely blurred but have overlapped. Focusing on liability issues, this overlap has occurred with the increasingly widespread acceptance of circumstantial evidence ' in certain cases ' to establish the existence of a defect. This doctrine has been called the “malfunction theory,” the “indeterminate defect theory” or simply has been referred to as the application of res ipsa loquitur or circumstantial evidence principles to product liability cases. Perhaps the most potent harbinger that the malfunction theory is here to stay is its 1998 incorporation into the Products Liability Restatement '3.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.