December 25, 2014

Top Products Liability Posts

Products head image

Looking at all the wrapped-up products under the Christmas tree, it is tempting to think about the dangers, real and alleged, that continue to support products liability as a substantial focus in our civil litigation landscape: Unexpected risks, poor design, hasty testing, negligent manufacture, incomplete labels, and more. Products liability cases continue to be one of the few scenarios where individuals, often in large groups, directly confront large companies. Bringing jurors into the mix also taps into their own actual or perceived expertise. They know, or believe they know, about potential dangers, purchasing calculations, label-reading behavior, customer use conditions, and personal responsibility in a variety of close-to-home products contexts. That multiplies the opportunities for the jurors’ expectations and psychology to come into play. For this Yuletide post, I thought I would look back on some of the top Persuasive Litigator posts in the products area. Here they are:  

6a01156e439be2970c015431e30b05970c-320wi-1Know When to Take the Offensive in Defense of Your Product: Lessons from Taco Bell

By: Dr. Ken Broda-Bahm: Imagine this:  you’re sued for making false claims about your product.  What do you do?  Issue a terse public statement and hunker down for discovery?  Not Taco Bell.  When an Alabama law firm filed a class action accusing the company of using meat filling with only 36% beef, the company responded by placing full page advertisements in Wall Street Journal, New York Times, USA Today and other papers that read “Thank you for suing us (Here’s the truth about our seasoned beef)” providing a forceful response that the filling is 88% beef with the remaining 12% being mostly water and spices.  Now imagine that less than three months after filing suit, the Plaintiff withdraws the suit with no agreement or settlement of any kind.  What do you do?  Pop some Champagne corks and quietly go back to business?  Not Taco Bell.  When the Plaintiffs’ withdrew their lawsuit last week, the company again took out advertisements in the countries’ major newspapers.  But this time, the ads were even pithier:  “Would it kill you to say you’re sorry?” the company asks the Plaintiffs’ firm? Continue reading

3702501888_aaa8f0ef5fAddress the Most Dangerous Feature of Your Product: Dishonesty

By: Dr. Ken Broda-Bahm: One stereotype of the litigious American society suggests that jurors are willing to hold manufacturers and sellers responsible for even the most obvious product dangers:  a ladder that allows its user to fall, or a cup of coffee that turns out to be hot.  While anecdotes abound — some true, and some false — our experience is that product danger alone rarely drives a verdict.  Instead, jurors need to see something else in order to generate sufficient anger to deliver any sizeable verdict against the company.  That ‘something else’ can be boiled down to one word:  dishonesty.  Jurors know that products are dangerous.  They have no trouble placing personal responsibility on adults who knowingly use dangerous products.  What they are less able to abide is incomplete information.  Whether the company is failing to investigate, providing inadequate or false warnings, working around regulations, or simply withholding information, the jury is less willing to say “buyer and user beware” and more willing to put responsibility on manufacturers and sellers. Continue reading

6a01156e439be2970c014e87c84123970d-320wiAim Your Product Warnings at “FYI” and Not Just “CYA”

By: Dr. Ken Broda-Bahm: A warning that calls attention to a product’s potential danger is obviously an important part of a company’s litigation prevention and defense.  But according to one recent statistic, a substantial portion of the public, and potential jury pool, may be a bit cynical on the question of whether warnings are designed to educate or just provide cover.  In a 2010 Decision Analysis survey on attitudes toward products liability litigation, fully 70% shared the belief that product warnings exist to protect companies in the event of lawsuits rather than to protect the public from product risks.  On the bright side, that means that if “CYA” truly is your motivation for consumer warnings, you won’t be violating jurors’ already low expectations by admitting it. On the even brighter side, it means that if you can convincingly reframe your own company’s warning in the broader terms of public education, you may end up surprising jurors and gaining an important measure of credibility in the process. Continue reading

6a01156e439be2970c017744002a62970d-320wiThe Products Survey (Part I): Adapt to Today’s Product Attitudes

By Dr. Ken Broda-Bahm: We are in an election season, and that is a good reminder of the fact that attitudes change. Maybe not fast enough to feed the 24-hour news cycle, but definitely fast enough to influence the litigation climate between cases. Products liability litigation in particular, is heavily influenced by jurors’ preexisting attitudes on personal responsibility, their specific beliefs about safety, product labeling and testing, as well as the way they see the relationship between large corporations and individuals. These are all attitudes that vary by venue and over time. Not having your finger on the pulse of these shifting opinions can pose a danger to products litigants. While jurors are definitely committed to hearing the evidence and basing a decision on the particular case instead of their generalized attitude, the outlook they come in the door with will still determine your starting point in trial.  Continue reading


The Products Survey (Part II): Spot the Wrong Kind of Juror for Your Defense

By Dr. Ken Broda-Bahm: During my most recent jury selection, the judge rather uncharacteristically allowed counsel unlimited time for voir dire. The team I worked with was delighted to have the extra time, but still stuck to a fairly disciplined approach of getting what was needed and getting it over with. (Message one to jurors: We respect both your opinions and your time). As opposing counsel’s voir dire stretched into the second day of trial however, with no sign of a “please wrap it up” from the judge, it struck me: Our adversary has no idea of what he is trying to strike, so instead, he is just using his time to transparently trot out each of his case themes for the panel’s approval. When it came time for strikes, to my eyes at least, he simply picked on the basis of demographics in a way that had nothing to do with the hours that he had spent talking with the potential jurors. Continue reading

6a01156e439be2970c017744510567970d-300wiThe Products Survey (Part III): Safety Test Your Jurors

By Dr. Ken Broda-Bahm: Two jurors sit side by side in the box reacting to the same information. The first sees a consumer who chose to use a product in a deliberately risky manner and has no one but himself to blame for the resulting injury. The second sees a company that had the knowledge and the power to foresee the patterns of consumer use and deliberately chose to ignore the risks by, instead, hiding behind unrealistic warnings. The story and the facts are the same, but the differences in juror mindset and attitude lead to strikingly different conclusions. Product cases can end up being small morality plays in a theater located at the intersection between corporate responsibility and individual responsibility. In that context, some jurors naturally pose a greater danger to the product defendant, and there is a need for a good way to find out which ones. Continue reading

6a01156e439be2970c01901c874b10970b-300wiKeep Jurors Focused on the Difference Between Past and Present Knowledge

By Dr. Kevin Boully: Did you believe in 2001 that a concussion could cause significant future health problems? Do you believe it today? If there is a difference, it is probably due to the attention brought by current trends in concussion litigation.  Reports and concerns over the health risks related to concussion injuries in all levels of sport seem to reach new heights with every 24-hour news cycle. Managing concussion risk in recreational activity is now a public health issue and a litigation hotbed. Public officials and lawmakers are involvedwith new legislation proposed last week. Former athletes injured playing sports are looking for answers. Sports leagues, teams, coaches, school districts, governing organizations, product makers and more are no longer on the sidelines – they are defendants. When the family of former professional hockey player and known “enforcer” Derek Boogaard recently filed a wrongful death lawsuit against the National Hockey League (NHL), the NHL joined the National Football League (NFL) among a host of others being sued by former players making a variety of claims from failure to warn of concussion risks to negligence and more. Continue reading

6a01156e439be2970c01539367b13e970b-320wiTake a Moment to Present Your Safe Product Story

By Dr. Kevin Boully: 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. Continue reading

2998332654_1c6728283bCount Your Plaintiffs Before Certification Hatches: Class Size Matters in Some Unexpected Ways

By Dr. Ken Broda-Bahm: When dealing with the number of plaintiffs in a class action, mass tort, or other large scale litigation, is “Super-Size Me” the plaintiff’s best choice?  At a legal level, the U.S. Supreme Court will get a chance to weigh in, after the decision last week to determine whether as many as 1.5 million female Wal-Mart workers claiming gender discrimination can be certified as a class (Dukes v. Wal-Mart).  The common belief is that a large number of plaintiffs serves to maximize the degree of harm that a jury is likely to perceive and amplify the amount of damages that individual plaintiffs receive.  But, does the research support it?   According to a recent series of experiments conducted at Northwestern University, the answer might well be “no.” And the question is an important one, as class size and verdict amounts continue to rise in several areas of litigation.  For example, Seyfarth Shaw recently released its 2011 Workplace Class Action Litigation Reportand sees the coming year as a potential tipping point for employment class actions. Continue reading


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