Forensic Clues: How to Survive in a Hostile Tort Reform Market

Product Liability Reform has affected many attorneys, consumers, and experts negatively while failing in its goal of greater American competitiveness. This issue of Forensic Clues is dedicated to addressing the problems of tort reform, how this affects you, and what you as an attorney can do to reduce your costs and increase your chances of a successful product liability case, assuming that the case involves a legitimate product defect.

In a market that is already pressured by giant retail chains to produce cheaper and cheaper products, by reducing the threat of lawsuits, tort reform has provided manufacturers with a way to increase their profits at the expense of the public - by reducing their costs. Unfortunately lower costs usually mean lower quality and lower safety. Companies focus on making the product less expensive, not on making the product more safe.

Manufacturers often have to resort to undesirable methods to cut costs. Methods commonly include using cheaper, inferior materials, reducing design time to save money, changing the design to minimize cost affecting the structure while maintaining cosmetic integrity, moving production facilities to a country with cheaper labor (quality control is a issue here), and by reducing overhead by using older, less safe machines to manufacture their products.

What Happened?

The main type of equipment failure that can lead to accidents is binding failure. Ski bindings are designed to release when a certain amount of force is placed on the binding. Binding tension is set to release based on the skier ability. Beginner skiers' bindings are set to release on minimal forces to minimize the possibility of injury to the beginner. Intermediate bindings release at a moderate amount of force, which allows the skier to make more aggressive moves.

Supporters of product liability reform legislation have been waging a war of misinformation for years. These people would have Americans believe that making it more difficult for injured people to sue and collect compensation will make American industry all the more competitive.

Proponents of products liability legislation claim that there has been an "explosion" in the number of product liability lawsuits. This is not true. Product liability suits comprise .002% of state court cases. Civil corporate cases are responsible for ten times the amount of litigation than product liability cases. The same companies that have cried for product liability reform have shown no qualms about burdening the legal system with countless corporate lawsuits.

The United States Senate Republican Policy Committee states on its website of The Product Liability Reform Act of 1997:

"This reform measure will create an incentive to increase expenditures on research and development. Money now earmarked for legal fees and liability claims could be used to improve product safety, innovation. . . Perhaps most importantly, product liability reform will decrease product costs to consumers."

We at Safety Engineering Resources have seen the results of these efforts. Certain American-designed products that we have been testing over the years have been getting more dangerous since product liability reform started.

One key feature to reform includes caps on punitive damages. Many legal experts advise that the threat of major punitive damages deters corporate misconduct. Juries have used punitive damages to force corporations to stop making dangerous products. It is this threat to corporations' wallet that encourages the production of safer products.

The Daubert Ruling

Product liability attorneys are all too familiar with the Daubert Ruling. This ruling was a legitimate attempt to ensure only qualified individuals would act as expert witnesses. It requires expert testimony to: be based on a theory or technique that has been subject to scientific testing; be an opinion that has been subjected to peer review or publication, be an opinion that accepted test results generally confirm, and be an opinion that is generally accepted within the relevant scientific community.

Daubert is simply another way for corporations that design and produce defective products to dodge responsibility. Defense attorneys will try to claim that an engineer expert witness who has not specifically designed the product in question is not qualified to testify. This is ludicrous. Engineers are taught the scientific principles that govern all products instead of being taught about the design process of specific products. The design of many products is based on "old science", science that has been established as fact, through years of research and experimentation. Expert opinions based on old science are not in need of Daubert review. Products that are innovative and new and most subject to scrutiny can be a huge pitfall of Daubert - a new invention will not have been tested extensively and may be based on new, non-peer reviewed science.

What Can You Do?

Product liability reform has impacted attorneys everywhere. Certain measures can be taken to ensure that you do not fall victim to product liability reform.

1. Screen cases - It is important to determine as early as possible how viable filing suit will be. Safety Engineering Resources gladly offers basic screening advice free of charge.

2. Find a qualified expert - This cannot be stressed enough. Many attorneys use low-cost part-time experts who do not hold up to Daubert hearings. Check the expert's credentials, looking for trial experience, experience in commerce in the expert's field, etc.

3. Educate yourself - We have seen over the years attorneys with a wide range of technical knowledge. Attorneys who have taken the time to research the topic and to read and comprehend our reports inevitably have more positive results. Safety Engineering can provide educational materials on most products for a nominal fee.

4. Reduce cost of product liability cases - Restricted punitive damages calls for a reduction in the time and money invested in product liability cases. Some of our work comes from lawyers who hired a low-cost expert witness previously, then looked to Safety Engineering Resources when the original expert's weaknesses and shortcomings were made evident. This doubles the attorney's cost. Hiring a competent expert the first time is a must. Other ways to reduce costs is to involve the victim or family of the victim in the process. Having a family member drive the product to the expert can save over a thousand dollars in freight charges.

5. Use available resources - There are ways to perform preliminary research that are simple, effective, and free.

Patent search

Patent searches are a good way to determine whether or not a product was designed properly, using the "state-of-the-art" technology. Patents are an excellent way to establish the when and how of an alternate, safer design. Fill out the enclosed form for a brochure on how to do patent searches.

CPSC search

The Consumer Product Safety Commission, CPSC, has an excellent website, www.cpsc.gov, where product defects and recalls are documented and archived with a searchable interface. Fill out the enclosed form for a free brochure on CPSC searches.

SER Publications

Safety Engineering Resources is in the process of completing a library of technical reference books designed for attorneys. These are intended to be an educational aid for lawyers. Reading these books can enable attorneys to determine the validity of a products liability case, be able to communicate effectively with the expert on technical issues, and to address the most relevant issues in the courtroom. Listed below are the current publications available, more will be available soon. Please use the enclosed order form to order any of these publications.

Available SER Publications

SER Publication #5002-1- How to perform a patent search - free

SER Publication 5002-3 - How to perform a CPSC search - free

Free CPSC Search Brochure

SER Publication #5002-SM - Stepladder Manual - A short course in the technical aspects of stepladder accidents. - $99.95