Discovery is the great and the only leveler of the playing field in products liability cases. Plaintiffs’ lawyers owe it to their clients to know the rules and to use them to gain access to facts which are both known to the defense and capable of supporting plaintiffs’ defect arguments.
Discovery is critical to the outcome of products liability cases because power lies with those who have information. Nowhere in civil litigation is the information gap greater than between an injured person and the maker of a defective product.
If plaintiff’s counsel recognizes the significance and the power of discovery from the outset of the case, and works hard to make the court understand it, too, the plaintiff will have a fighting chance to win. If not, justice cannot be done.
II. Discovery is Different in Products Cases
Discovery is always important in civil litigation. It helps both sides understand the facts and legal issues in the case, gives them a sense of who they are dealing with on the other side, and allows them to plan a case management strategy. All of this promotes sensible settlements, and leads to efficient trials if settlement talks fail. Fair discovery exchanges save time and money for the parties, and make the court’s job easier.
In most civil cases, discovery builds on or around some shared experience – a marriage, a business deal, a sale of real estate, an employment setting, an auto accident, or a doctor/patient relationship for example. The parties know each other. They have met before (even if only on a slippery road). They have been through a period of time and particular events together, and have formed judgments about each other’s role in those events. While they may disagree about details, and want to know more about their adversary’s perceptions, they at least have a common starting point.
That is not true in products cases. Not only is there is no shared time or event, there may actually be three independent sets of experience to consider. First, defendant may have manufactured the product years before the injury, across oceans or in an environment unknowable to plaintiff. Second, plaintiff’s use of the product is likely to have been well outside of defendant’s knowledge or control. Third, the product is likely to have had something of a life of its own, disconnected from either plaintiff or defendant (at least through commercial distribution). Was it altered or damaged in some unforeseeable way during this time?
At the risk of stirring up old arguments, one could say that there is no privity between the parties to a products case. The lack of a kernel of common experience is one reason why discovery is so different, and so important in a products case. The sides need to meet and get to know very basic things about each other, and about how the product was used while it was outside the control of either one.
There is another and far more significant reason why discovery is different in a products case, and why discovery is so crucial to access to justice. The biggest point to be made and understood about discovery in products cases is that manufacturers have far more knowledge of their products, and how and why they fail, than any plaintiff or plaintiff’s lawyer can ever have. The manufacturers are, in the plainest and fullest sense of the words, the experts.
Manufacturers have employees who design and build their products full time, every day. They have years of accumulated experience. They know who the target customer is, what led to the design of the product, how the design has performed over time in the hands of customers, where corners were cut to save money, what quality control issues arose or might have arisen in production, and how the use of new technologies has improved the product or caused new problems.
Only the manufacturers know what it really would have taken to make the product safer. They probably have investigated similar failure claims before, and have industry contacts which enable them to find and control the best expert witnesses. It is not uncommon in products cases to find that manufacturer-defendants have litigated virtually identical cases many times before.
The breadth and depth of defendant’s knowledge of the issues in a products case simply cannot be matched by any plaintiff, plaintiff’s expert, or plaintiff’s lawyer. The only way a plaintiff can hope to get a chance at a fair hearing on the merits of a product defect argument is through information gained in discovery. Getting that information requires the thoughtful, careful use of the rules of discovery, and honest responses from the defense.
III. How To Use Discovery
There is no magical formula for discovery in a products liability case. The main rule is that plaintiff should seek discovery early and often. Every possible opportunity to ask for information should be used. Before suit, why not write a letter requesting information? If it is well done, the letter may be the basis for future formal discovery requests. Why not include a request that the defense preserve certain documents, such as quality control or production records? Exemplars of the product are always useful. When appropriate, why not ask the manufacturer to send you or sell you one? Or some?
When drafting the complaint, it is a good idea to draft discovery, too. Engineering standards relied upon by defendant, design history, design modifications, test results, recall history, other similar incidents, settlements, and other litigation are all good topics to ask about.
The list can be incorporated into document requests, and later into deposition notices. It is good strategy for plaintiffs to respond to the defense’s discovery fully and on time, and to expect the same in return. Rule 26(g) requires a good faith effort to resolve discovery disputes before involving the court. Plaintiff’s counsel must go out of his or her way to see that the effort is both made and documented.
Travel to the office of defense counsel and ask simply and directly for full, accurate, and clear discovery responses. Write detailed, non-accusatory letters about what is missing from the defense response.
IV. Getting the Court Involved in Discovery
Judges generally don’t like to be involved in discovery disputes, and it is important for plaintiff’s lawyers to appreciate and deal with that.
First, judges are members of the professional community and must be understood as such.
They depend upon and trust counsel, particularly well-known local defense counsel, to work things out. While local defense counsel may very well be trustworthy and well-intentioned, the defense of many products cases is controlled by national counsel who may have an agenda beyond a single case in a single jurisdiction. Local counsel cannot reveal what they do not know, and their clients do not necessarily tell them everything.
This point is not easy to make or to sell to either defense counsel or the court, but in some cases it is critically important.
Second, judges probably have no experience from which to understand the vast difference between defendant’s access to information and plaintiff’s access. In two different cases, I have had two different judges ask, in an effort to avoid being involved in discovery problems, whether there isn’t a group of plaintiff’s lawyers that shares information about “these” cases. In other words, couldn’t plaintiff get discoverable facts elsewhere?
While ATLA provides some insight into some cases, the value to a plaintiff of another plaintiff’s experience is nothing compared to the accumulated experience of the defense. Large corporations which are regularly involved in products litigation have in-house counsel and regional defense counsel who regularly handle their cases. The companies conduct private seminars at which trial counsel learn product specific technologies and case-specific defense approaches.
This needs to be made clear to the court at the appropriate time, so that the context of a particular discovery dispute can be understood. The defense is the best source of facts, the discovery rules call for the prompt and complete disclosure of facts, and justice cannot be done unless the rules are fairly applied.
Third, plaintiffs must understand the rules of discovery and use them properly. When it is necessary to involve the court, choose the issues for the court’s attention carefully, lay out the history of the discovery requests, and be very specific about the relief sought. Finally, plaintiffs must be patient but persistent. It may be necessary to return to court several times before the court sees what plaintiff sees in the discovery responses. If plaintiff fails to keep the important discovery issues before the court, and particularly if plaintiff waits until the eve of trial to seek sanctions or other remedies, it will be too late. By then the court will have been deprived of any reasonable opportunity to see the issue and deal with it effectively.
V. Example: The Flex Fan Cases
Montney v. General Motors, 1996 WL 333359831 No.187351 (Mich. App. Sept. 6,1996) looks like a case where there was a breakdown in discovery. That unreported opinion affirms summary judgment for the defense, which means that Mr. and Mrs. Montney never got to tell their story to a jury. The opinion explains that plaintiffs’ expert “failed to present any evidence of the magnitude of the risk involved and failed to present any evidence of an alternative design.” This never should have happened. All of the proof the Montneys needed – at least to survive summary judgment – should have been available through discovery.
For many years, the auto industry sold rigid, fixed-blade radiator fans. They did not fly apart while in use. In the 1960s, in an effort to improve the efficiency of their engines, car makers adopted the flex fan. It had thin, springy blades which were curved while spinning at low speeds, but which flattened out – or flexed – as centrifugal force increased at higher engine speeds. The flattened blades produced less drag on the engine, yet still provided adequate cooling effect because a vehicle moving fast (with an engine spinning fast) requires less cooling help from a fan than one moving slowly or idling at a stop light.
Unfortunately, flex fans failed in the market place because they were terribly dangerous – the flexible blades developed fatigue cracks from constantly changing shape, and sometimes broke free while spinning at high speed. Flying blades killed and maimed many people, and by 1978 auto makers were back to using fixed blade fans.
Since the mid-1970s, there have been dozens and dozens of personal injury claims made and settled in connection with the horrible injuries inflicted by flying flex fan blades. Even today cases continue to arise. There have been at least two such cases here in Maine in the last few years. Discovery requests in these cases result in the production of thousands of pages of details about warranty claims, engineering tests and reports, NHTSA investigations, recalls, injury cases sued and settled, and enough information to upset any reasonable juror about the tragic, short history of the flex fan. So why was the Montney family denied its day in court?
Proof of “alternative design” should have been available through discovery. General Motors, like the other manufacturers, had replaced its flex fans with traditional fixed blade models. Why would it not be required to produce the design documents, warranty information, and other evidence showing that the fixed blade fan was an alternative which worked fine?
Proof of the “magnitude of the risk” should also have been available through discovery. Hundreds of warranty claims had been made on flex fan failures.
General Motors’ documents show that people had lost their noses, eyes, and ears, or had been killed, by flex fan blades. The victims included professional mechanics and backyard tinkerers working on engines, as well as innocent bystanders who were struck while standing or walking yards away from the vehicle.
Although this information could be assembled from sources independent of General Motors, the process would be very time consuming and expensive. Moreover, the result of such an effort would necessarily be incomplete.
Maybe the Montney result has something to do with bringing automobile defect claims against General Motors in Michigan courts. However, if Michigan allows discovery, and if the purpose of its rules of civil procedure is to promote the just, speedy and inexpensive determination of every action, the legal system failed Mr. and Mrs. Montney. Long before Mr. Montney was injured, General Motors already had collected and cataloged a vast data bank on flex fans. That data bank should have been available to the Montneys, and their lawyer should have been able to fashion a triable case from it.
To regain your faith in the power of discovery and to give a plaintiff a chance at justice in a flex fan case, take a look at Taylor v. General Motors, 537 F. Supp. 949 (E.D. Ky. 1982). The court there describes the flex fan blade as having been “flung like a spear” into Mr. Taylor’s chest. The liability arguments and the breadth of the proof are laid out in the court’s opinion. Congratulations to plaintiff’s lawyer in that case, who performed heroically for his client and set an example for the rest of us to live up to.
Discovery is the great and the only leveler of the playing field in products liability cases. Plaintiffs’ lawyers owe it to their clients to know the rules and to use them to gain access to facts which are both known to the defense and capable of supporting plaintiffs’ defect arguments. Only through the proper use of discovery can plaintiffs be assured of a meaningful day in court.