November 24, 2011

Take a Moment to Present Your Safe Product Story

By Dr. Kevin Boully:

Safety first
In little more than a moment a man goes from enjoying his favorite recreational sport to an injured Plaintiff with a sports-product liability claim.  It happens in a flash.  And new research suggests that people may make determinations about a witness's trustworthiness and empathy just as quickly — in about 20 seconds.  So what happens when Defendant manufacturers are faced with challenging facts, sympathetic Plaintiffs, and a need to present a believable trial story in sports-related products liability cases?  In this post, we focus on a three part approach to developing a critical aspect of an effective product-defense — an effective product safety story. 

Earlier this year, a Missouri jury awarded $48 million to the families of five people who perished during a skydiving incident.  Trial testimony indicated the Defendant airplane-parts manufacturer made a replacement part for the aircraft using a metal alloy that cost about half as much as the metal the original manufacturer required.  Plaintiffs also presented evidence that the replacement part had caused other engine failures, and had failed internal testing.  These are not good facts (to put it lightly), and a Defendant in this position clearly faces an uphill battle.  But a Defendant in this position must present a credible company witness (if not multiple witnesses) who can tell the story that made the Defendant company's decisions safe and reasonable based on the knowledge and testing available at the time. 

A Three-Part Safety Story

Part One:  

Bring Credible, Likable Witnesses From All Relevant Levels

Every defense needs credible witnesses, but personalizing the manufacturer through a full spectrum of relevant employees is central to a product safety story.  Jurors do not trust scripted corporate executives’ claims that a product is safe if the executives were never anywhere near the product during its development.  Bring lower level employees with direct, hands-on experience testing and improving the product in order to gain juror trust in the product's safety and reliability.  Find a witness who was intimately involved in the decisions that led to the aircraft replacement part's design and manufacture.  Let him talk about the reasons for his careful decisions. 

Part Two:  Reveal the Product’s Evolution

A brief and relevant history of the product starts with the problem the it was created to solve.  Engage jurors with the reasoning behind the product's creation and follow the product through research, development, testing, all the way through its success in the market and post-market improvements.  This gives the product an identity and implicitly highlights the time, energy, and resources devoted to make a safe and effective product.  Don't underestimate the value in explaining the aircraft replacement part was created to fill a void left by parts that were too heavy or wore out too quickly. 

Part Three:  Account for the Range of Anticipated Uses

Describe the anticipated product uses and how the manufacturer addressed the range of possible misuses during its product development.  If the Plaintiff argues the manufacturer must anticipate unreasonable uses, the Defendant must clearly distinguish between the product's reasonable uses and those that exceed reasonable use and explain its plan for preventing those misuses.  If a certain model of aircraft replacement parts are safe in only some aircraft models, describe how the manufacturer accounts for that concern and designs the part so it can only be used safely. 

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 Photo Credit:  MattC. Flickr Creative Commons

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