Chain of Custody in a Products Case

Product Liability 101

The “24 Hour Rule”

Don't Cheap Out! Buy it all.

Problems with “Joint Custody"

Don't Do It!

Another Pitfall: Cousin Tony.

Another Pitfall: Inspections...

Find Everything.

Flag and Record With

Fixed Station Survey

Potential Theories....

Consumer Products

Vehicle Defects

Electronics

Electronic Stability Control

Tires

Airbags and Seat Belts

Do NOT release other tortfeasors!

Decline? Warn client about the SOL and SOR

Keep carrier on the hook.

Jury Instructions

Screening the Case

Overview

• Screening the Case
• Identifying the Parties and Theories of Liability
• Drafting the Complaint
• Building Your Case
• Trial
• Jury Instructions

Practice Tip:

Find and depose former employees!

Identifying Parties and Theories

Preserving the Scene

Remember 24 Hour Rule!

30(b)(6) Depos

Emerging Consumer Product Defects

Home Elevator Entrapment

Emerging Consumer Product Defects

Portable Generators

Emerging Consumer Product Defects

Home Elevator Entrapment

Emerging Consumer Product Defects

Compiled Scene Survey

Emerging Consumer Product Defects

UTVs and ROVs

Emerging Consumer Product Defects

Emerging Consumer Product Defects

Button Battery Ingestion

Emerging Consumer Product Defects

Portable Generators

Voluntary Rulemaking

Recreational Off-Highway Vehicle Association writing Standard for Recreational Off-Highway Vehicles (ANSI/ROHVA 1-200X)

New requirements:

Lateral stability

Occupant protection performance

Dynamic constant steering wheel-angle

test on paved surface to evaluate rollover propensity.

Visual seat belt usage reminders

Leg/foot, shoulder/hip arm/hand barriers

to restrict occupant egress and excursion in a rollover

Mandatory helmet use.

CPSC Data on ROV rollovers and collisions

Estimated injuries for 2010 - 3,200 (NEISS)

Reviewed 428 fatal and injury reports Jan 2003- Dec 2011

817 victims injured or killed

66 percent in front seat

18 percent of involved drivers under age of 16

291 (68 percent) involved lateral rollover;

610 who were in ROV, 433 partially or fully ejected

Of 610, 269 hit by a part of the ROV

In this report CPSC staff looked only for incidents specifically related to vehicle design characteristics.

Emerging Consumer Product Defects

Emerging Consumer Product Defects

UTVs and ROVs

Emerging Consumer Product Defects

Single-Use Laundry Detergent

The Take Away:

New products flood market, impossible for CPSC to monitor them all.

Still grappling with old defects – window blind cords, ATVs, etc.

Some trends are high-profile, but short-lived, fire pots, Nap Nanny.

Incidents continue to accrue during lengthy voluntary and/or mandatory rules process.

Emerging Consumer Product Defects

Single-Use Laundry Detergent

No mandatory access

packaging standard

ASTM voluntary standard

underway; Lengthy process

CPSC issued warning,

watching standards process

Emergence of 20mm lithium

coin cell linked to rise

in serious and fatal

button battery ingestions

Tide, largest U.S. manufacturer, changed packaging

to double-latch lid to address consumer concerns

Children up to 12 yrs. old become entrapped in gap between outer door (hoistway) and elevator car door (accordian style)

Tide, largest U.S. manufacturer, changed packaging

to double-latch lid to address consumer concerns

Sean Kane Safety Research & Strategies, Inc.

Emerging Consumer Defects

Sunbeam and Holmes

Portable Quartz Heaters

Background

Aging power grid+ Stronger storms= More outages

755 CO deaths 1999-2011; nearly three-quarters 2005-2011, during outages

Warning Labels and pictograms required in 2007

CPSC 2012 report shows more fatal incidents with generator in non-basement living space after the labeling requirements went into effect than before.

Warnings Don’t Work!

Every three hours, child under 18 treated for button battery ingestion at ERs

Rate is accelerating

1977 - first case described in medical literature

Today, ERs see estimated 3,289 children annually

U.S Consumer Product Safety Commission

Established in 1972

Authority over 10,000 + Products

Consensus standard – vast majority

Mandatory regulation ≤ 10 Percent

Small percentage no regulation

Photograph the Evidence

...BEFORE you take physical possession

Sean Kane Safety Research & Strategies, Inc.

Self-Starting Appliances and Fires

Sean Kane Safety Research & Strategies, Inc.

The “Do Not Destroy” Letter

Courtesy of Dennis Brickman, PE

Sean Kane Safety Research & Strategies, Inc.

Drafting the Complaint

Emerging Consumer Product Defects

Button Battery Ingestion

Building Your Case

Under Consumer Product Safety Act

“Manufacturer” includes anyone who imports a product to the U.S.

Importers are directly responsible for the safety of the products they bring to the U.S.

Request for Production

• Network
• Be specific
• Don't rely on formal discovery

Sean Kane Safety Research & Strategies, Inc.

Emerging Consumer Product Defects

Who is Responsible?

Questions?

Sean Kane Safety Research & Strategies, Inc.

Rich Newsome

www.NewsomeLaw.com

Mobile: 321.217.9864

Email: Newsome@NewsomeLaw.com

Twitter: @RichNewsome

Emerging Consumer Product Defects

Button Battery Ingestion

Trial

Sean Kane Safety Research & Strategies, Inc.

Practice Tip:

• Lead with the Corporate Representative

Practice Tip:

• Use exemplars; the other side will too...