NEW YORK PRODUCT LIABILITY: PREPARATION OF THE PLAINTIFF’S CASE

By Anthony Gair

A. COST

Product liability cases are different from general negligence cases and even medical malpractice cases for several reasons. First and foremost is the cost involved in litigating these cases. The costs involved for the plaintiff’s attorney can be astronomical. It is not unusual to accumulate well over $100,000.00 in expenses prior to trial. Obviously, much more may be expended should the case proceed to trial. Thus, when you, as a plaintiff’s attorney, are considering the representation of an injured plaintiff, the first question that must be answered is whether it is worth the cost, time and resources that will have to be put into the prosecution of the case. It is suggested that, with some exceptions, a case not be undertaken unless it has a value in excess of seven figures. However, if you are dealing with a product with a documented manufacturing flaw or defect which you know has been previously litigated or recalled, the potential value of the case can be less. Similarly, in a design defect case, if there has been a product recall, the same applies. Further, if you have previously successfully litigated a case involving the same product there is no reason not to take it, even if it is not a seven figure case.

The plaintiff’s attorney must also understand that manufacturers are proud of their products and will not simply roll over and play dead. Many manufacturers have defense firms on retainer to handle cases brought against them throughout the country. These attorneys know the product involved, are generally highly experienced and have the best experts at their disposal in addition to the design engineers who designed the product. These national counsel have relationships with local attorneys who also have expertise in defending these cases.

Since most of the cases you will see are those involving alleged design defects and/or failure to warn this article will focus on those types of cases. It is suggested that if the only theory you can come up with is that of failure to warn, unless it is clear cut, you should be cautious about taking the case, since in New York culpable conduct is a defense to a Product Liability case. In practice, if you have a failure to warn case, you will usually have a design defect case as well.

B. TIME AND PUTTING IT TOGETHER

If you undertake to handle a product liability case, be prepared to spend a countless number of hours on it. Not only will you have to learn all there is about the particular product, as discussed further, you must learn the principles of safety design engineering. Similar to a medical malpractice case in which you must learn the area of medicine involved so as to effectively cross-examine the defendant doctors and their experts, the same is true as to the field of design engineering.

The most important first step is to choose the right expert or experts. Under no circumstances pick a generic expert, one that testifies in any type of case. It is imperative that you choose a case specific expert who has actually worked in the industry and will survive a Daubert/Frye preclusion motion.

CHOOSING THE LIABILITY EXPERT

The following should be taken into account when hiring the liability expert or experts:

Education – Hire an expert with a strong educational background. Before making a decision on retention, ask the expert how he did in college and graduate school – the well prepared defense lawyer might have the expert’s academic records. Make sure the expert is educated in the proper discipline, e.g. an industrial engineer does not design products.
Work Experience – Whenever possible hire an expert that has worked for a competitor of the manufacturer being sued. At the very least, do not hire an expert that has never worked with the product (or substantially similar product) that he will claim is defective. This will also serve to minimize the defense argument that the expert is lacking in the specific “hands on” empirical study.
Professional Organizations – Hire an expert who is a member of significant professional organizations. If the only thing the expert had to do to join was send in the fee, such credentials will be unavailing.
Patents – Attempt to retain an expert for a design defect case that has actually designed and patented a product. The benefit here is clear in that it bolsters the expert’s reliability as a “hands on” person who is well entrenched in the design of products.
Courses Taught – If the expert retained has taught and used textbooks with contrary assertions to those that will be made at trial, the expert will be subject to harsh judicial scrutiny and irrevocable jury scrutiny.
Publications – Check the expert’s publications before retaining him. If the expert has written to the contrary of his litigation opinions, criticism will be forthcoming.
Prior Testimony and Positions Taken – Ask about cases in which the expert may have taken a position contrary to his current contentions.

ONCE RETAINED, THE EXPERT(S) MUST BE PROPERLY PREPARED TO SURVIVE THE DEFENDANT’S DAUBERT/FRYE ATTACK

Ask your expert the following questions and make sure the answers are accurate and adequate

Is there general acceptance in the scientific community of the principles and methodologies used, and can this be proven?
To what degree can each of the expert’s hypothesis and conclusions be tested, i.e., are there established standards and controls?
Can the expert’s methodology be replicated?
What are the biases that are likely to affect the principles and methodology which the expert employed?
Have the methodologies and principles which the expert employed been published in a peer reviewed journal? If not, is there a viable reason why not?

The expert will be challenged on the issue of whether his conclusions are capable of being tested and whether the expert has conducted any tests to validate his conclusions. If tests were conducted, the expert must be able to say why he selected the specific test and withstand a challenge as to why he did so. The expert will also be asked about whether other tests were available and what he was seeking to prove or rule out by performing the tests that he did. The expert must be prepared to respond to each of these inquiries.

The expert also should be prepared to give a step-by-step description of the test protocol used. Some of the elements of a valid test protocol typically include the following:

it must adequately replicate the assertion being tested
it must take into account all of the possible ways in which the assertion might fail or fall short
it must be reproducible
it must have controls

The expert should be prepared for an examination of the manner in which the test addressed each of these elements. The expert must also be prepared to answer questions concerning how and by whom the test protocol was developed, the identity of any other test procedures that have been published or used and why he selected this particular protocol for the testing.

In the event that the expert has not performed any testing, he will be asked if his hypothesis is capable of being tested and if such testing is desirable. In the event that the hypothesis cannot be tested, the expert will be asked if any other researcher or scientist has ever published or outlined a method by which testing of a hypothesis of this type can be performed. If the answer to this is affirmative, the expert must be prepared to explain why no testing was conducted. Reliance upon the expert’s experience and training provides a strong basis for not testing.

In terms of testing, one area in which plaintiff’s experts repeatedly fall short is with respect to that of proposed alternative designs. The defense will argue that an expert who proposed an alternative design be able to show that he has actually tested the design and that it adequately eliminates the alleged danger under real-world conditions. One must be prepared to combat this line of attack. When preparing an expert on this issue, remind the expert that the alternative design, if it is in use by a competitor of the defendant, was tested by that competitor. Also, remind the expert that the adequacy of his alternative design is so basic that he is not relying upon scientific methodology or technique, but rather upon his experience and training which tells him that it is a better design.

C. DIRECT AND CROSS-EXAMINATION OF THE EXPERTS

The foundation for the cross-examination of the defendant’s safety design expert must be laid at his deposition. The most important expert for the defendant and for the plaintiff to effectively cross-examine is the design engineer employed by the defendant who actually took part in the design of the product. Assuming you are in New York State Court, you will not have the opportunity to take depositions of the retained experts. It is thus imperative that you demand, during discovery, the design engineer employed by the defendant most familiar with the design of the product. Parenthetically, as a plaintiff, it is much preferable to be in New York State Court for a myriad of reasons including no expert depositions, no expert reports are required, you pick the jury not the Judge and you are able to ask for a sum of money during summation. Further, State Court Judges are less inclined to preclude the expert’s testimony as not reliable. Thus when bringing suit, look for a defendant, such as a component parts manufacturer or company who maintained the product which is a New York State corporation. Obviously, if the defendant is a New York corporation, you cannot be removed to Federal Court. Most often this is not the case and it becomes imperative to find a viable New York defendant so that you can “bust diversity” and not be accused of fraudulent joinder. The fact is that in many cases there will be such viable defendants.

By taking an effective deposition of the safety design engineer employed by the defendant, you will be able to lock him in and use the deposition as your roadmap at trial, obviously in a reorganized line of questioning and using your deposition to impeach him if he deviates therefrom. Further, you will be able to use his deposition testimony to impeach the defendant’s retained experts.

1. USE OF THE PRINCIPLES OF SAFETY DESIGN ENGINEERING IN A PRODUCT LIABILITY CASE BASED ON NEGLIGENT PRODUCT DESIGN

In product liability cases predicated upon the negligent design of a product, such as almost any type of machine which is to be used by people of varying training and skill it is imperative for the plaintiff’s attorney to understand the basics of machine design. This is crucial in New York where the plaintiff’s culpable conduct is a defense to a strict product liability action so that the percentage of fault for his injury may be, if not eliminated, reduced as much as possible. It is not enough for an attorney to simply ask a product design engineer at deposition and subsequently at trial how the product works. Such questions alone are pointless and will not result in a deposition which can be used to defeat a motion for summary judgment, and more importantly at trial, to impeach the product design engineer and to rope him into your theory of the case. As in any deposition the lawyer must ask himself what the purpose of the deposition is. Is it merely to gather information or is it to cross-examine the witness so he will be pinned down at trial? In a product liability case in New York the plaintiff is allowed to serve extensive interrogatories as well as Notices for Discovery and Inspection. Thus if well drafted the plaintiff’s attorney will have most of the discovery needed for both deposition and trial. Hence it is submitted that the primary purpose of the deposition of a product design engineer is to cross examine him on the principles of design engineering so as to nail him down for trial. Similar to a deposition of a physician in a medical malpractice case where the plaintiff’s lawyer must know the medicine as well, if not better, than the physician, the plaintiff’s lawyer must know the principles of design engineering as well as the design engineer. If one is not willing to learn this area there is no reason to undertake a complex product design defect case. The plaintiff’s lawyer must check the college and graduate school curriculum for the field of design engineering and read as many of the texts used in design engineering courses as possible. If a lawyer is not willing to make this commitment he is better off referring the case to a specialist in product design defect cases. The following is a basic discussion of the principles of machine design.

Machine or product design is a sub-specialty of mechanical engineering. In designing machines, and other potentially hazardous products, design engineers must take into consideration that a machine, will be used by people of varying intelligence, education and skill. “Human factors engineering, engineering psychology, and ergonomics are largely overlapping segments of a common area of interest: the analysis and design of the conditions affecting people operating in concert with machines”¹. Ergonomics, or Human Factors Engineering and Design as it is commonly referred to in the United States, involves the consideration by the design engineer of human factors and characteristics when designing safety features into machines. The cardinal principal is that it is human nature to err, that is, people make mistakes. It is standard and accepted practice that the concept of human error be taken into consideration when designing a machine. A machine must be designed to reduce, as much as is technologically feasible without destroying the utility of the machine, foreseeable actions by the operator causing injury or death. In designing a machine, a hazard analysis must be done. From a design engineering standpoint, a hazard is a condition that has the potential of causing or contributing to injury. Danger in the context of safety design engineering theory means a higher probability of the risk of an identified hazard causing injury. Risk is the probability of being injured by an identified hazard.

When a design engineer has identified a foreseeable dangerous hazard, there is a safety design priority recognized by all design engineers with reference to preventing injury from the identified hazard which is a follows:

Design out the hazard if one can do so without destroying the ability of the machine to function or utility of the machine.
If an identified hazard cannot be designed out of the machine without destroying its ability to function or utility, the next goal of the design engineer is to guard against it causing injury by incorporating guards or other safety devices.
The last alternative is that if one can’t design out the hazard because doing so would destroy the utility of the machine and one can’t guard against it by incorporating guards or safety devices, the last priority is to warn about it. It is the ethical responsibility of the design engineer for the machine to develop a safe, functional design which eliminates or greatly reduces the potential for human error on the part of the machine operator causing injury to himself or others.

The following are sample questions that should be asked in a design defect case at deposition and at trial of the design engineer who designed the product. These questions should also be adapted and used when cross-examining the retained defense expert. The plaintiff’s attorney will then also be in a position to impeach that expert using the deposition of the design engineer who actually designed the product.

Is it fair to say that before this machine was manufactured a hazard analysis was conducted?
Can you explain to those of us who may not know what a hazard analysis is?
What was your involvement in the hazard analysis with regard to this machine?
Part of the hazard analysis would analyze among other things hazards associated with the use of the machine, is that right?
Would you agree that from a design engineering standpoint a hazard is a condition that has the potential of causing or contributing to injury?
Would you agree as a design engineer that once a hazardous condition is identified in a machine the first goal of the design engineer is to design out that hazard if such is possible without destroying the utility of the machine?
Would you agree that as a design engineer that if an identified hazard cannot be designed out of a machine such as the subject machine without destroying its ability to function or its utility the next goal of the design engineer is to guard against it causing injury by incorporating guards or other types of safety devices, would you agree with that?
Is it also fair to say that the last alternative is if you can’t design out the hazard because doing so would destroy the ability of the machine to function or utility of the machine and you can’t guard against it by incorporating safety devices or guards, then the last priority is you warn about it, correct?
That is a priority, is that right?
As a design engineer you are familiar with the concept of ergonomics, are you?
In layman’s terms that is what is known also as human factors, correct?
In the course of your studies as a design engineer and safety design engineer, did you study the concept of ergonomics or human factors as it is also referred to?
Is it fair to say that included in the field of ergonomics is the concept of human error?
In designing a machine such as this machine, does a design engineer such as yourself take into consideration the fact that the machine is going to be used by people?
When this machine was designed, you as the design engineer knew it would be used by people of varying degrees of intelligence, is that right?
You knew, did you, that when this machine was designed it was going to be used by people with varying degrees of education, correct?
I mean just as a general proposition as a design engineer when you design a machine and incorporate warnings and safety devices into the machine you don’t do that for the highest common denominator, you do it for the lowest common denominator, don’t you?
As a design engineer when designing this machine, you knew, did you, that it was human nature to err?
In designing this machine, you as a design engineer in incorporating safety devices including warnings and labeling into the machine took into consideration the fact that humans make mistakes, true?
In designing this machine you as a design engineer in deciding what type of warnings to place on the machine itself and what type of warnings or instructions to put into the manual took into consideration the fact that humans make mistakes, true?
Would you agree if we were all perfect and never made mistakes you wouldn’t need any safety devices, guards or warnings on the machine, true?
As a design engineer you design a product such as this machine with that in mind, that nobody is perfect and that people make mistakes, true?
That is one of the cardinal principles of safety design engineering, isn’t it?
Is it fair to say that the reason safety devices are incorporated into the design of a machine is to prevent injury or death as a result of foreseeable actions by the operator of the machine?
Is it fair to say that, from a design engineering standpoint, part of design engineering is anticipating the behavior of the machine operator and taking that into account in the design of the machine and its safety devices and warnings placed on the machine?
As a design engineer, you’re knowledgeable about the concept of risk, are you, as it relates to design engineering?
By risk would you agree we mean the probability of being injured by an identifiable hazard?
Would you agree that the term “Danger” in the context of design engineering theory, safety design engineering theory means a higher probability of the risk of a hazard, an identified hazard causing injury?
And if the risk rises to a certain level then it becomes a dangerous condition?
Once you as a design engineer identify a dangerous condition on a machine, you as a design engineer then go back to the principles of safety design prioritization, correct?
Basically that is, A, design out the hazard if you can do so without destroying the utility of the machine. B, if you can’t design it out without destroying the utility of the machine, guard against it and incorporate safety devices to prevent the dangerous condition from causing injury or death. And, C, if you can’t do either of those two, warn against it, Correct?
That is the priority of the principles of safety design prioritization which you are well familiar with, aren’t you?
Would you agree as a design engineer that if you could prevent even one injury such as the one suffered by the plaintiff at a nominal cost that it would be a worthwhile thing to do?
Do you agree that it is the ethical responsibility of a safety design engineer such as yourself to develop a safe functional machine design which eliminates or greatly reduces the potential for human error on the part of the operator causing injury to the operator?
Can we agree that you as a safety design engineer want to make the machine as safe as technologically feasible without destroying the utility of the machine?
Anything that you could do which was technologically feasible which could prevent injury to the operator without destroying the utility of the machine you would want to do, true?
Isn’t it correct that one of the basics of safety design engineering is to take into consideration unanticipated operator behavior in using the machine, I mean that is what a safety design engineer does, isn’t it?
Would you agree that at the time this machine was designed and manufactured, it was technologically feasible to have designed into the design of the machine without destroying the utility of the machine (the safety device you are claiming should have been used)?
Would you agree that to assume perfect human performance can be achieved to avoid injury or death in the operation of a machine is unrealistic from a design engineering standpoint?
Because that is the whole concept of human error, isn’t it?
You knew that when the machine was designed?
So isn’t it incumbent upon the design engineer who has done a safety analysis, who has identified hazards which can lead to serious injury or loss of life, to incorporate into the design of the machine devices which will prevent as much as possible operator error from causing injury or death?

2.INCORPORATING THE PRINCIPLES OF SAFETY DESIGN ENGINEERING IN CROSS-EXAMINATION OF THE EXPERT

In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the product properly or to follow warnings which caused the plaintiff’s injury. In New York the plaintiff’s culpable conduct is a defense in a Products Liability case. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users of products are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer in a products liability case is crucial in New York. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct.

Further, as stated above, the deposition of the design engineer will serve as your roadmap for cross-examination of all defense liability experts at trial. Often, the defendant’s design engineer will be from out of state. It is thus even more crucial that he be cross-examined the same as he would be at trial since plaintiff’s attorney will have to read his deposition to the jury. In most cases, this will force the defendant to call him as a witness on their case at which time the plaintiff will have the opportunity to use the deposition again to cross-examine him.

In many cases involving injury caused by allegedly defective products, the product will have had a warning on it as to the very action by the plaintiff which precipitated his injury. This must, of course, be dealt with at the deposition of the defendant’s design engineer. Most design engineers will admit that written warnings are the least effective method of protecting someone from a known hazard and should be used only as a last resort or in combination with proper guarding.

The following is an edited portion of the deposition of defendant’s design engineer in a case in which the plaintiff suffered severe injuries to his hand when it was drawn into the plates of a printing press. The guard on the press in the area of the plate cylinder had been removed subsequent to manufacture. It was plaintiff’s position that defendant knew the guards were often removed and that they should have been interlocked to prevent operation of the press without the guard in place. The plaintiff at the time of his injury was attempting to remove impurities (hickeys) from the moving plate cylinder. Although this was a dangerous and improper manner in which to remove hickeys, it was plaintiff’s position that it was a common practice in the printing industry and thus foreseeable. The cross-examination incorporates many of the questions set forth above.

The first goal was to have the design engineer concede that this was a foreseeable action by a press operator:

Q. Are you familiar with the term hickey?
A. Yes.
Q. Hickeys are part of the printing process; is that right?
A. Yes.
Q. Would you agree that a hickey is some type of imperfection on a plate or cylinder which results in an imperfection of the product?
A. Yes.
Q. And hickeys can be caused, among other things, by specs of dirt on the plate cylinder?
A. Yes.
Q. They can be caused by lint on the plate cylinder; is that correct?
A. Yes.
Q. They can be caused by dry ink on the plate cylinder; is that correct?
A. Yes.
Q. Among other things; those are some of the things that can cause hickeys, correct?
A. Yes.
Q. Do you agree that hickeys must be removed from the plate cylinder or imperfections will appear on the product being printed?
A. Yes.
Q. Is it fair to say that hickeys are recurring problems on printing presses?
A. Yes.
Q. And they are certainly not unusual?
A. No, they are not unusual.
Q. Is it fair to say that pressmen who are operating offset presses have to be aware of hickeys?
A. Yes.
Q. And if hickeys develop on a plate cylinder, the pressman must remove them; is that correct?
A. Yes.
Q. Are you familiar with the term chasing hickeys?
A. Yes.
(Chasing hickeys is attempting to remove them from the plate cylinder with the press in operation.)
Q. Are you aware of pressmen attempting to remove hickeys with their fingers or hands from the plate cylinder of offset presses while the press is in operation?
A. Yes.
Q. You are aware, aren’t you, of pressmen being injured when using their hands or fingers to remove hickeys from the plate cylinder with the press in operation; is that right?
A. Yes.
Having conceded that there was a recognized hazard as a result of a foreseeable action by a press operator, the witness was next questioned with regard to designing the machine so as to prevent injuries resulting from that hazard, and specifically with regard to the priority, the design engineer is obligated by professional standards to follow in reducing the risk of injury from a known hazard.
Q. Would you agree as a design engineer that once a hazardous condition is identified in a machine the first goal of the design engineer is to design out that hazard?
A. Yes.
Q. Would you agree as a design engineer that if an identified hazard cannot be designed out of a machine without destroying its utility, the next goal is to guard it?
A. Yes.
Q. Is it fair to say that the last alternative is, if you cannot design out the hazard and you can’t guard against it, then you warn about it?
A. Yes.
Q. And that is a priority, isn’t it?
A. Yes.

The witness was then questioned as to the consideration of foreseeable human behavior with regard to the design of the machine; and the fact, known to design engineers and to be considered by them, that people make mistakes.

Q. As a design engineer, are you familiar with the concept of ergonomics?
A. Yes.
Q. In layman’s terms, that is what is known as human factors; is that correct?
A. Yes.
Q. Included in the field of ergonomics is human error; is that correct?
A. Yes.
Q. In designing a machine, does a design engineer take into consideration that the machine is going to be used by people?
A. Yes.
Q. When this printing press was designed, you knew it was going to be used by people of varying intelligence; is that correct?
A. Yes.
Q. And you knew that it was going to be used by people with varying degrees of education, correct?
A. Yes.
Q. And you knew that it was going to be used by people with varying degrees of experience with printing presses, correct?
A. Yes.
Q. As a design engineer, you knew that people make mistakes; is that correct?
A. Yes.
Q. And in designing a machine, a design engineer who was incorporating safety devices into the machine takes into consideration the fact that humans make mistakes; is that correct?
A. That is not the only reason.
Q. It is one of the reasons, though, isn’t it.
A. Yes.
Q. Because if we were all perfect, you wouldn’t need guards, any guards on any machines, would you?
A. Correct.
Q. The reason guards are put on machines are to prevent injury as a result of foreseeable actions by operators of the machines; is that correct?
A. Accidents are normally not foreseeable. That is the problem that we have.
Q. Wouldn’t you agree that the reason the guard was incorporated into the design of this press was to prevent injury to operators by foreseeable actions of the operators?
A. Possibly, but there were also other reasons.
Q. But that was one of the reasons?
A. Yes.
Q. And specifically it was to prevent operators from picking hickeys off the plate roller with the machine fully operational and in the printing mode; is that correct?
A. It was the rules and regulations of operating the machine to stop the machine in order to remove the hickeys from the machine.
Q. That really wasn’t the question, but I will try to move along.
If press operators never picked hickeys with the press in operation, you wouldn’t need the guard, would you?
A. Yes.
Q. Yes, that is a true statement?
A. Yes, that is a true statement.
Q. Is it then fair to say that the guard was utilized on this press to prevent certain actions by operators of the press which are foreseeable to you as a design engineer?
A. Foreseeable and unforeseeable actions were the reasons for it.
Q. Among those foreseeable actions were operators using their hands or a rag to remove hickeys from the plate cylinder with the press in operation, true?
A. Yes, but that was not correct. That was not a proper way of operating the machine.
Q. But the answer is yes?
A. Yes.
Q. Is it fair to say that from a design engineering standpoint part of design engineering is anticipating operator behavior and taking that into account in the design of a machine and its safety devices?
A. Partly, yes.
The witness was next questioned with regard to the known danger of operating the press with the guard removed;
Q. By risk, we mean the probability of being injured by identifiable hazards, correct?
A. Yes.
Q. Would you agree that with regards to machine design danger means an unacceptable combination of risk and hazard?
A. Yes.
Q. Would you agree that it was dangerous to operate this printing press with the guard removed?
A. More dangerous.
Q. This press as designed could be operated with the guard removed, true?
A. Yes.
The witness was then questioned as to whether it was technologically feasible to incorporate the safety device plaintiff asserted should have been included in the design of the machine at the time of manufacture;
Q. You would want to make a printing press as safe as technologically possible without destroying the utility of that press, correct?
A. It has to be as safe as possible but still functional.
Q. So, the answer is yes, I take it?
A. Yes.
Q. Anything that you could do which was technologically feasible which could prevent injury to the operator without destroying the utility of the machine you would want to do, true?
A. Yes.
Q. Was it technologically feasible prior to the date of manufacture to have incorporated an interlock into the guard design so that when the guard was removed from the press power to the press would be cut?
A. Yes.
This type of questioning of the defendant’s design engineer will enable the plaintiff’s attorney at trial to meet head on, from opening through summation, the defendant’s argument that the plaintiff must bear responsibility for the accident since he operated the machine improperly. His actions were foreseeable, it will be argued, and the injury could have been prevented by the defendant manufacturer by incorporating proper safety devices into the design of the machine. Thus, instead of allowing the manufacturer to shift the responsibility for the injury to the injured plaintiff, who did not use the machine properly, the jury may be reasonably asked to place responsibility for the injury where it belongs, on the manufacturer who was aware of the foreseeable operator behavior, which caused the injury and failed to take adequate measures to prevent injury from that foreseeable behavior.

D.DEMONSTRATIVE EVIDENCE

In a Products Liability case, demonstrative evidence is crucial to deflect the defendant’s attack that the expert never inspected the product, never designed a similar product, never built a mock up of the alternative design and the usual allegations of “junk science.” The following are examples of demonstrative evidence that may be effectively used when conducting the direct examination of plaintiff’s expert.

Photos of product taken at expert’s initial inspection.
Scale model of product built by expert incorporating alternative design.
Video depicting how model and alternative design works.
Design drawings by expert depicting the alternative design.
Blow-ups of the manufacturer’s hazard analysis.
Blow-ups of the manufacturer’s design drawings.
Blow-ups of relevant pages of product instruction manual.
If necessary, revised instruction/warning manual written by plaintiff’s warning expert.
Results of tests conducted by plaintiff’s expert on alternative design.
Blow-ups of competitors design drawings who have incorporated similar alternative designs in similar products.
Blow-ups of relevant pages of competitors instruction/warning manual.

The list can be virtually endless depending on the product involved and the proposed alternative design. The key is to buttress the expert’s opinion with demonstrative evidence that clearly supports his testimony and shows the jury exactly what is being proposed and the simplicity of incorporating it into the product.

E.HANDLING THE JURY

If you are in State Court, you will have the opportunity to at least speak with the jury for thirty minutes to an hour in most jurisdictions. In Federal Court, the judge will ask the questions. It is a rare case in which a judge will ask the most important questions the plaintiff’s attorney submits. It is crucial, whether done in jury selection or in your opening to develop a theme, which you will have thought about before even deciding to take the case. The plaintiff’s attorney must understand that the jury will usually have the mind set that the corporation who designed and manufactured the product knew what they were doing and what befell the plaintiff was his fault for not using the product properly or failure to heed instructions or warnings. Thus the plaintiff at the outset must turn this around and use it to his advantage. The following are general examples of what can be explained to the jurors either during jury selection, if possible, or during plaintiff’s opening statement to counter at the outset the defendant’s assertion that plaintiff caused his own injury:

This case is brought under the law of strict products liability, or as some refer to it, the consumer or industrial workers protection law.
Proof will be that the product as designed, manufactured and sold was not reasonably safe.
The product was so likely to cause injury or death it should never have been marketed in the condition it was.
The defective design of the product caused plaintiff’s injury. (Don’t say caused accident – it caused THE INJURY).
Proof will be obligation of manufacturer who designed product to protect plaintiff from known hazards.
Defendant will claim we warned, do you think written warnings are an adequate substitute for proper safety devices.
Ever see advertisements for this product.
If so, have they caused you to form any opinions regarding safety of the product?
Have you ever used this product?
Are you familiar with this product?
Do any of you have an engineering background?
Defendant has vast experience regarding this product; it is our claim that before selling this product they had an obligation to properly test it to see that it was reasonably safe for its intended use.
The defendant knew that injuries such as the plaintiff’s had occurred in the past, his actions were foreseeable.
The defendant failed to incorporate a simple safety device for a nominal cost which would have prevented this injury.

NOTE:Defendant caused the injury not the accident. Never claim they caused the accident. Hence:

Defendant caused the injury by failing to incorporate certain safeguards into the product.
Do you think a manufacturer has an obligation to put safety devices on a product which has a history of causing injury?
Think it is reasonable to require that written warnings be reasonably adequate in all respects to warn a consumer about potential harm.
How do you feel about the responsibility of a manufacturer to design a product to eliminate or minimize a known hazard?
How do you feel about this type of case, worker injured on job, claiming equipment he had to use defective?
The proof will be that this product was not reasonably safe as designed, manufactured and sold. It was defective and its defective condition caused the death of plaintiff.
You are going to hear the testimony of defendant’s design engineer. I know you are going to hear it because I took his testimony, his deposition. No dispute, he has testified that it was foreseeable that operators of this machine would act exactly as the plaintiff did. He testified to that and you will hear him testify to that. They knew it when they made the machine.
The proof will be that this machine, the design of this machine violated one of the most basic of design engineering concepts which is that when you design a machine that places the operator between moving parts, will hear term pinch points, you must incorporate safety devices to protect them.
Every design engineer who gets on the witness stand will tell you that it must be taken into consideration that this machine is going to be used by all types of people, like the plaintiff who comes to a job and doesn’t have a choice, they use the machine they are given. If they refuse, they won’t have a job. Every design engineer who testifies will admit that people are not going to act like a manufacturer might want them to, perfectly one hundred percent of the time.
We are going to prove to you that other manufacturers of this machine took the foreseeable risk of injury into consideration when designing the machine. These manufacturers incorporated into their machines various safety devices such as what are called interlocks or limit or kill switches and you will hear about it. Just like any washing machine or dryer, you open the door and the machine stops. There is a button, it automatically turns off the power so nobody can be hurt.
I anticipate by virtue of the defendant’s pleadings, the papers served in this case, that they are going to say there is nothing wrong with our machine and that plaintiff’s injury was caused only by his conduct or a combination of his conduct and that of his employer. It’s not a secret. They put pleadings in. That is what they are claiming. Shouldn’t the real issue in this case be whether or not they will take responsibility for this dangerous defective product they put on the market, shouldn’t that be the real issue?
You are also going to hear about warnings, written warnings. I am telling you right now there is no question that inside this machine there was a warning that stated “Danger Don’t Operate Without (safety device) In Place. Serious injury could result.” Any design engineer that you will hear testify in this case whether it be defendant’s design engineer or anyone else will tell you that written warnings are the last resort and the least effective method of protecting someone from a known hazard that if not properly guarded against can cause injury or death. So they put a warning up there, this thing can kill you and they put on a safety device that could be popped out like a window screen and the machine would still run.

¹Marks’ Standard Handbook for Mechanical Engineers, 9th ed., 1987, McGraw-Hill Book Company, at pps. 17-45.