LJN Newsletters

Highlights of the latest product liability cases from around the country.

When product liability cases are consolidated through Multidistrict Litigation ("MDL") proceedings, the proceedings are rife with complexities, and the obvious temptation for an MDL judge is to streamline and simplify these proceedings as much as possible. MDL judges have many appropriate tools at their disposal, such as case management orders and adoption of uniform discovery requests, to facilitate the proceedings. While certain techniques used to simplify and consolidate are appropriate, application of a "universal law" — in which one substantive law is applied to cases from various jurisdictions — is not. Application of a universal law violates due process and places consolidation and expediency above the interests of justice. Such a dangerous proposition was briefly suggested during the Ephedra MDL proceedings, involving hundreds of cases consolidated for pretrial purposes in the Southern District of New York.

By now, most class action lawyers are familiar with the argument that a court must take a "close look" during the class certification stage in order to ensure that certification is indeed practicable and appropriate. Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) (reversing certification decision for failure to assess "how a trial on the merits would be conducted"). This "close look," or "rigorous analysis," is not meant as an opportunity to prejudge the merits of the case, but is instead intended to give the court a realistic sneak preview of what trial of the issues will entail.

During the course of discovery in product liability matters, a key liability theme is often whether the defendant company complied with its regulatory obligations in connection with the product at issue. For example, in product liability litigation concerning chemical compounds, the focus might be on whether the company properly registered the compound with the EPA or with state environmental agencies. Likewise, in a pharmaceutical or medical device product liability case, plaintiffs will often focus on whether the product complied with FDA regulatory requirements. Plaintiffs' approach to such liability issues will often result in depositions that focus on whether, how, and when the defendant company informed the appropriate regulatory agencies of any risks potentially associated with use of the product at issue. Did the company submit the requisite scientific data; did it properly report known adverse events associated with the product at issue, and did it seek appropriate approval from the regulatory agency regarding the nature of its warnings to users and consumers? To that end, plaintiffs will often notice depositions of fact witnesses whom they think can provide testimony on the company's regulatory compliance or they may seek depositions pursuant to Fed. R. Civ. P. 30(B)(6) of witnesses "with knowledge" of the company's regulatory compliance.

Public Citizen ("PC") is a national, nonprofit consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive branch and the courts. Its Web site is located at www.citizen.org.

As you prepare for your upcoming product liability trial, things could not seem any better. You have qualified experts waiting to testify that your client's product is not defective. The client is credible, well established, clearly safety conscious and responsible. Throughout lengthy pretrial depositions, your client has never denied ownership or control of the product, and never claimed that purported safety measures suggested by the plaintiff were not feasible. He claims only that the measures would have been inconsequential based on the facts of the case. Therefore, it is your impression that the warning label your client added to the "Super Widget" subsequent to the accident will never be presented to the jury based on the protections of Federal Rule of Evidence 407, a conclusion the judge will surely come to as she flips through your motion in limine.

During the course of discovery in product liability matters, a key liability theme is often whether the defendant company complied with its regulatory obligations in connection with the product at issue. For example, in product liability litigation concerning chemical compounds, the focus might be on whether the company properly registered the compound with the EPA or with state environmental agencies. Likewise, in a pharmaceutical or medical device product liability case, plaintiffs will often focus on whether the product complied with FDA regulatory requirements. Plaintiffs' approach to such liability issues will often result in depositions that focus on whether, how, and when the defendant company informed the appropriate regulatory agencies of any risks potentially associated with use of the product at issue. Did the company submit the requisite scientific data; did it properly report known adverse events associated with the product at issue, and did it seek appropriate approval from the regulatory agency regarding the nature of its warnings to users and consumers? To that end, plaintiffs will often notice depositions of fact witnesses whom they think can provide testimony on the company's regulatory compliance or they may seek depositions pursuant to Fed. R. Civ. P. 30(B)(6) of witnesses "with knowledge" of the company's regulatory compliance.

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