Admissibility of Subsequent Remedial Measures: Bad Law Lurking in the 10th Circuit
Although not a part of every product liability case, if the product manufacturer makes "subsequent remedial measures" after the injury-causing event, a motion in limine seeking to exclude this evidence at trial is a must. There is a tremendous risk that the jury will irrationally assume that a product was defective when sold, and that the manufacturer was negligent for supplying such a product, simply because the manufacturer made changes to the product after the accident.
Case Notes
Highlights of the latest product liability cases from around the country.
Discoverability of Attorney Work Product Communications Supplied to Experts
The first part of this article discussed the split in the circuit courts on the issue of whether a party must produce all communications and materials that were supplied by the party's attorney to a testifying expert, even if these communications (oral or written) would otherwise be protected as attorney work product. The majority of federal courts have adopted a "bright-line rule" that all information shared with a testifying expert must be produced, even if it includes "core" attorney work product, namely the attorney's mental impressions, conclusions, opinions or legal theories. A minority, however, has declined to follow this bright-line rule and instead has held that providing attorney work product materials to a testifying expert does not waive the attorney work product protection. The conclusion of this series will discuss the minority view and compare the two views.
Practice Tip: Courtroom Technology in Product Trials ' Debunking the Myths
Technology has emerged as a critical trial advocacy tool in product cases. In an electronic world where information is delivered in 30-second sound bites, 1-minute commercials, and 12-minute programming segments, technology can be used to convey complex information about product design and use in the bite-sized pieces needed to connect with today's jurors.
Online: Discover Clinical Studies Online
The Web site <i>ClinicalTrials.gov</i> provides regularly updated information about federally and privately supported clinical research with human volunteers. <i>ClinicalTrials.gov</i> offers information about a trial's purpose, who may participate, locations and phone numbers for more details. You can search for clinical trials by type and location, <i>eg,</i> breast implants and New York. Do a focused search by disease, location, sponsor or treatment or browse by condition, sponsor or status. If you click on "condition" you can find out what studies are recruiting participants — with information listed either alphabetically or by disease heading. Disease headings include bacterial, digestive, immune and connective tissue. A search by funding organizations, <i>ie,</i> sponsors, turns up federal agencies such as the National Institutes of Health (NIH), Centers for Disease Control and Prevention (CDC) and the Department of Veterans Affairs, as well as 272 private corporations. The lists include trials no longer recruiting patients. If you want to restrict your search to trials of a certain status, you can find trials that are not yet recruiting, recruiting, no longer recruiting and completed.
Med Mal News
Medical malpractice issues in today's headlines
e-Discovery Worries?
Concern has arisen among corporate counsel that despite their best efforts at development and monitoring of electronic document retention programs, sanctions ranging from fines or adverse jury presumptions to default judgments may be imposed if electronic information is not handled correctly. Consider, for example, that a company recently was sanctioned $2.75 million after 11 key employees failed to comply with a "freeze" and lost electronic information as their computer files were overwritten for several months. <br>Recent proposals to amend the Federal Rules of Civil Procedure to account for electronic documents and to provide a "safe harbor" limitation on sanctions could provide some relief.
