1. the Detailed Pretrial Work Often Matters

“Trying a Products Liability Case: Best Practices, Tips and Strategies”
Sherry A. Knutson[1]

How does one prepare to try a product liability case? In many ways, it is the same as the trial of any civil matter. Trial preparation should begin on day one. A skilled practitioner analyzes a case at the outset and envisions how it will be presented in a courtroom, and then takes each step forward from pleadings to discovery to motions with the end goal in mind. This includes having an early knowledge of the evidence available and how it fits with the elements at issue, guiding discovery to best fit your theory of the case, and setting up motions that you believe are winnable to narrow the issues.

But there are unique factors at play in the trial of a products liability case. A trial in a products case often involves a sympathetic and injured person fighting a big corporation. Many times the case hinges on complex scientific, engineering, or medical issues that will be difficult to convey to a layperson. Product liability cases are also often part of larger coordination proceedings, either Multi-District Litigation or coordinated state court proceedings. The trial of a bellwether case within such a coordination can be higher stakes, with greater time and energy being poured into it by both sides.

With this in mind, below are ten tips that I use for trying a product liability case.

1. The detailed pretrial work often matters.

I have seen time and time again that small battles can be won before trial with diligence and planning at the pretrial stage. In particular, product liability cases often are tried with deposition designations because key witnesses are outside the state or otherwise unavailable. Designating deposition testimony and objecting to the other side’s designations is an incredibly time-consuming process. In talking to colleagues and opposing counsel alike, there seems to be universal agreement that there must be a better way to streamline the process. Sometimes judges will take it into their own hands if we do not: I’ve faced judges in multiple jurisdictions who, across the board, denied every objection to deposition designations. I now keep this in mind and try to be judicious about the objections that I make. I work with opposing counsel in advance to cut down the objections to those that truly require a ruling from the judge. I try to group a category of objections together to make it simpler for the judge, e.g., foundation - does the judge allow the questioner to use a document with a witness who was not copied on it?

I do as much of this work in advance as possible, including reviewing the designations myself rather than leaving it all to a young associate. I also try not to over-designate testimony, because jurors tune out quickly while watching videotaped testimony. At every step, I ask myself: “do I really need this piece of evidence from this particular witness?”

Likewise, in products cases we often have 1000s of exhibits. I take the same careful approach to exhibit objections as I do to deposition designations. I work with opposing counsel to narrow down to those key objections that I believe I can win and that matter. I also take the process seriously at all stages, because I have seen it make a difference. Specifically, in my second product liability trial, we were sent to the special master who planned to rule on all exhibit objections before trial began. The other side did not put much work into the process. At trial, when opposing counsel tried to object, we successfully argued they had waived the objection by not making it during the pretrial conference with the special master.

2. Understand the jury instructions as early as possible.

The jury instructions that will be given on key elements such as defect and causation are central to any product liability case, and can differ widely from state to state. Definitions of defective design can vary from the risk-utility to consumer expectation tests. And causation can be defined by the “but for” or “substantial factor” tests ─ or some variation thereof. In fact, even the definition of “substantial factor” can differ greatly from jurisdiction to jurisdiction. For instance, in recent product liability trials in Pennsylvania, the court instructed the jury that:

“a breach is a ‘substantial factor’ in bringing about the injury if it had such an effect in producing the injury that reasonable people would regard it as the cause of the injury. There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial, even if you assign a relatively small percentage to it.”

Wisniewski v. Takeda Pharm. Am., Inc., et al., No. 120702272 (Penn. Com. Pl. Oct. 2, 2014) (emphasis added); see also Kristufek v. Takeda Pharm. Am., Inc., et al., No. 02275 (Penn. Com. Pl. Feb. 11, 2015) (“You may, however, decide that it caused a substantial contributing factor even if you assign a relatively small percentage to it”).

I learned early in my career the importance of knowing – whenever possible – what the jury instructions on these key issues will state. We handled a product liability case in a jurisdiction in which, at the time, defective design was defined in the pattern instructions as follows: “A product is said to be defective when it is in a condition not contemplated by the ordinary user or consumer which is unreasonably dangerous to the ordinary user or consumer.” We tried the case assuming the pattern instruction would be given. It was not, and instead a consumer expectation definition was. From that point forward, I learned to look at a variety of resources relating to key jury instructions soon after the case is assigned to me (pattern instructions, samples from other cases, and relevant case law). It also is important to determine whether the judge is likely to give the pattern instruction and, if not, attempt to seek guidance from the court as soon as possible before trial as to what instruction will be given.

But, of course, sometimes the best laid plans often go awry. In a recent product liability case that I tried in West Virginia, the court declined to determine the causation instruction before trial. The plaintiffs’ counsel tried the case as if the “substantial factor” test would be given, whereas defense counsel did not take such a stark position given the lack of guidance. In the end, the instruction was more akin to “but for” causation based on state law, in that the jury was instructed: “Although plaintiff [] need not establish that a defendant’s alleged conduct is the sole cause of his injury, he must show that his injury would not have resulted except for [defendant’s] alleged acts or omissions.” The lesson learned: if you do not know before trial how one of the essential elements of a product liability claim will be defined, it is important to develop your evidence to fit differing definitions.

3. Voir dire varies widely from court to court – but is always important.

I have seen voir dire last anywhere from one half day to three weeks, depending on the court. Some courts restrict questions solely to those that go to bias, while other courts will allow you to preview your trial themes.

Much like the other pretrial work discussed above, I believe that voir dire requires careful planning in advance. After learning what the judge is likely to allow in terms of process, I draft my questions and then practice voir dire with a jury consultant and mock jurors. I do so not only to perfect my approach, but to tailor my questions to the precise needs of the case. When doing voir dire in a products case, I am mindful that jurors may see the case as “David versus Goliath.” I try to sensitize jurors not to judge a “book by its cover” before hearing the evidence, while also trying to weed out anyone who cannot put their sympathies aside. I have also learned not to be afraid to “poison the well” and ask questions that expose bias, because one prospective juror’s stated extreme views are not likely to sway the deep-held beliefs of others (and if they do, I would rather know about it in voir and not after a verdict!).

4. Respect the jury and its time.

I learned from my initial trial mentor to treat every single person in the courtroom with respect and courtesy. This includes the jury. In the end, I believe credibility and jury connection matter more than anything else.

This extends to respecting the jurors’ time. Products cases can lasts weeks or even months. So I make an extra effort to be as efficient as possible. I’ve heard jurors complain that they did not need the same thing explained over and over again. I am a big fan of time limits, which I believe force a good trial lawyer to make choices about what is truly essential.

And I never make a promise I can’t keep. This includes not making statements in opening that I may not be able to prove, to not promising a witness will be completed if is the timing is questionable.

5. Keep it simple and streamlined at trial.

Product liability cases tend to be complex and heavy on scientific, medical or technical issues. It is up to the trial counsel to make these complex areas understandable. I spend a great deal of time drafting and re-drafting questions to make them clear, short, and presented in a logical order. I try to “bottom line” each area by explaining or asking the witness why it is important. I frequently test openings, witness examinations, and closings with paralegals and staff members in my office to see whether I am telling a simple story.

Plaintiffs and defendants alike are starting to realize the importance of not chasing down every rabbit hole. Doing so risks losing the jury with respect to your key points. I tried one case where the judge allowed virtually everything into evidence. In the end, it was to my advantage: plaintiffs’ counsel threw so much spaghetti against the wall that he ended up burying his key points.

6. Stick with your affirmative themes.

It is easy to get lost in the weeds especially with experts and science-focused fact witnesses at trial. I have learned not to go tit-for-tat on these complex areas, or else you risk going into defensive mode and losing the jury. At every step of the process, I keep my affirmative themes in mind and let them guide what I do. For instance, during one trial, we had a fact witness on the stand who is a pathologist and an esteemed expert in rodent carcinogenesis. The cross focused on detailed points relating to animal studies. Instead of doing an explanatory redirect on each of those points, I asked five questions to make the point that “rats aren’t people” and “the human data is what matters” which were part of my affirmative themes. The message came through: all those hours of cross did not matter.

7. Take care during cross.

I always try to find one witness for whom I think I can tell some of my company’s story during cross, if possible, especially where the trial is a long one in duration. Otherwise, I try to make a few key points and get out. I usually don’t ask a question if I don’t know exactly what the answer will be. And if a concept requires explaining, I will leave that for my witness to clean up in my case.

8. Think about whether you need the company witnesses.

Conventional thinking for decades was that witness to be the face of the company is a must in a products case. But it can backfire. We had one corporate representative sit at counsel table, and the jurors commented after the trial that he looked bored, so his presence had the opposite effect of what we wanted. Also, if cross is wide open, it can lead to more negative than positive impressions being made on the jury. I have won product liability trials without calling any company witnesses, so don’t hold to the belief that it is an absolute requirement for trial.

9. Be nimble.

Planning is essential, but so is the ability to pivot. If I notice that the judge is granting one type of objection over another similar objection, I will adjust the basis for my objections. And if the judge is denying all objections, I will likely stop making them unless absolutely essential for preservation of the appellate record.

With a witness, no matter what unexpected event happens, I always keep my key affirmative themes in mind, because they help me respond to whatever surprises come my way. For example, if the issue is not one that matters to my essential themes, I may let it slide instead of drawing more attention to it by covering it in cross.

10. Never let them see you sweat.

My first mentor taught me to be careful of appearance at all times. He told me to walk slowly into a courtroom, not to tap my knee up-and-down, and not to make any facial expressions other than one of calmness. He showed me that if a witness says something unanticipated on cross, I should nod my head as if that was the answer I was expecting, and either move on or impeach. As I once heard, perception of reality matters more than reality. At all times, I try to create the perception that I am winning the “fair” game, no matter what happens.

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With each trial I acquire more knowledge, but these ten points distill down the most important things I have learned so far while trying product liability cases.

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[1] This paper states opinions of its author and does not necessarily represent opinions of Sidley Austin LLP or its clients.