THE GLOBALIZATION OF PRODUCT LIABILITY ACTIONS A PRESENTATION OF:

Transcription

1 THE GLOBALIZATION OF PRODUCT LIABILITY ACTIONS A PRESENTATION OF: The Lex Mundi Toxic Tort & Products Liability Committee Benjamin E. Haglund, Esq., Pitney, Hardin, Kipp & Szuch (Chair) Bradley E. Ross, Esq., Clayton Utz (Vice Chair) Colin Loveday, Esq., Clayton Utz (Vice Chair) PARTICIPANTS: Victor M. Diaz, Jr., Esq., (Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A.) Alejandro Hernández Maestroni, Esq., (Ferrere Lamaison) Franklin Hoet-Linares, Esq., (Hoet, Pelaez, Castillo & Duque) Manuel Moreda-Toledo, Esq., (McConnell-Valdés) Philip A. Robbins, Esq., (Robbins & Green, P.A.) Benjamin E. Haglund, Esq., (Pitney, Hardin, Kipp & Szuch, LLP) SYNOPSIS This program will explore the evolution of product liability actions in Venezuela and Latin America, focusing on current issues in product liability including the key issues in the Firestone case. The panelists, attorneys from Venezuela, Uruguay, Puerto Rico and the United States, will also provide advice, from the viewpoints of plaintiffs and defendants attorneys, on establishing and building and maintaining a successful products liability practice. OUTLINE OF PRESENTATION I. Introduction of Participants and Remarks II. National Law Center for Inter-American Free Trade - Project on the Law of Products Liability in Latin America III. Overview of Product Liability Law and Procedure in Latin America Today IV. Firestone and Current Product Liability Law Issues A. Plaintiffs Perspective (Venezuela) B. Plaintiffs Perspective (U.S.A.) C. Defense Perspective (Puerto Rico) D. Defense Perspective (U.S.A.) VI. Practice Development and Substantive Tips VII. Conclusion 1

2 SUMMARY The international recall of Firestone s Wilderness AT tires is the largest product recall since the Johnson & Johnson Tylenol product recall 18 years ago. In Venezuela alone, over 100 deaths and hundreds of other injuries are claimed to have been caused by Firestone s tires and/or the Ford Explorer sport utility vehicles on which they were installed. Similar types and numbers of claims have been made with respect to deaths and injuries in the United States of America and other countries. 1 This recall and its resulting litigation present a timely opportunity to discuss the development of product liability laws in Latin America in the context of a common product distributed worldwide - - automotive tires. Venezuela has played and will continue to play a significant role in the SUV tire controversy. Philip Robbins, of the National Law Center for Inter-American Free Trade, will discuss the nature and scope of the National Law Center s recently concluded two (2) year study on developments in product liability law and procedure in Latin America. Alejandro Hernández Maestroni, the National Law Center s principal researcher on this project, will provide an overview of product liability law and procedure in Latin America today. Mr. Hernández Maestroni will also compare and contrast Latin American laws and procedures with those in the United States of America. Franklin Hoet-Linares will discuss his unique, leading role as counsel to the Venezuelan plaintiffs in the Firestone litigation as well as his plans for legislative reform efforts in Venezuela. He will also discuss issues related to choice of forum and the doctrine of forum non conveniens. Victor Diaz, co-lead counsel for plaintiffs in the United States litigation and individual counsel to a large number of Venezuelan nationals, will discuss the scope and reasons for the Firestone tire recall, the allegations of the defects at issue in Firestone, as well as issues of choice of law, discovery and the doctrine of forum non conveniens. Manuel Moreda-Toledo will provide an overview of products liability law and litigation in Puerto Rico including discussions of the bases for liability, the court system and damage awards. Benjamin Haglund will discuss issues of personal jurisdiction, including jurisdiction based on Internet activity, the United States federal common law of foreign relations, and current attitudes toward collective and industry-wide liability. Throughout the panel members issue-specific presentations, Sr. Hernández Maestroni will comment on how these issues would be addressed under the laws of various Latin American countries. After their respective presentations on substantive aspects of products liability law, the panelists will provide their views on how to develop and maintain a successful products liability practice. The panel has reserved time at the conclusion of each segment for discussion and questions from all attendees. However, we encourage and welcome your thoughts and questions throughout the panel discussion. 1 In 1999, similar tire recalls affected a number of other countries including Columbia, Ecuador, Saudi Arabia, Malaysia, Thailand, Bahrain, Egypt, Jordan, Kuwait, Lebanon, Oman, Qatar, Syria, Yemen, and the United Arab Emirates. 2

3 PARTICIPANTS BIOGRAPHIES VICTOR M. DIAZ, JR. Member, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Florida, USA; The Association of Trial Lawyers of America; Greater Miami Legal Services, Inc. (President, ; First Vice President, ; Board of Directors, ); Litigation practice including personal injury and wrongful death litigation. ALEJANDRO HERNÁNDEZ MAESTRONI Attorney, Ferrere Lamaison, Montevideo, Uruguay; Principal researcher and consultant for the National Law Center s Latin American Products Liability Project. FRANKLIN HOET-LINARES Partner, Hoet, Pelaez, Castillo & Duque; Universidad Central de Venezuela (J.D., 1967; LL.M., 1967); Institut International d'administration Publique de Paris (Master of Financial Economics); University of Paris (Ph.D.); University of Strasbourg, France (LL.M.) MANUEL MOREDA-TOLEDO Member, McConnell-Valdés; Chairman of the firm's Product Liability and Toxic Tort Practice Group; University of Puerto Rico (B.B.A., cum laude 1971; J.D., magna cum laude 1974); Member - Defense Research Institute; Sr. Moreda-Toldeo has tried product liability and toxic torts cases both in the federal and the local courts of the Commonwealth of Puerto Rico. PHILIP A. ROBBINS Robbins & Green, Phoenix, Arizona, USA; Vice-President, National Law Center for Inter-American Free Trade, Tucson; American College of Trial Lawyers International Committee; NAFTA Advisory Committee on Private Commercial Disputes; Litigation practice, including products liability. BENJAMIN E. HAGLUND Partner, Pitney, Hardin, Kipp & Szuch, LLP; Chair Toxic Tort & Products Liability Committee, Lex Mundi; Member - Defense Research Institute; Litigation and trial practice including products liability and toxic tort personal injury and wrongful death cases (New York and New Jersey). 3

4 OVERVIEW OF CURRENT LATIN AMERICAN PRODUCTS LIABILITY LAW AND PROCEDURE BASED ON THE NATIONAL LAW CENTER S RECENT RESEARCH AND ANALYSIS Philip A. Robbins Alejandro Hernández Maestroni for Lex Mundi Latin American Caribbean Regional Conference Caracas, Venezuela March 24, National Law Center for Inter-American Free Trade s Project on the Law of Products Liability in Latin America (a) Research, compilation and analysis of law and procedure (1) Conducted by National Law Center at Tucson, Arizona in association with the James R. Rogers College of Law at the University of Arizona (2) Research grant from Shook, Hardy & Bacon, L.L.P. (3) Research and preparation of materials by Alejandro Hernández Maestroni, Montevideo, Uruguay (b) National Law Center s Seminar on Products Liability Law and Litigation in Latin America scheduled for Miami, Florida on September 21 & 22, 2001 (1) Speakers and panelists from the United States and various Latin American countries (2) Written materials (3) Focus on current trends, procedures and status of recent litigation (4) All Lex Mundi firms are invited and will receive registration materials (c) Materials available from National Law Center (1) Membership in National Law Center (2) Availability of materials and data base (3) National Law Center projects in other subject areas 4

5 2. Overview of Product Liability Law and Procedure in Latin America Today (a) Traditional approaches modified by trend toward treating products liability as autonomous (1) Description and importance of current doctrines (2) Consumer defense laws (b) (c) (d) (e) The decline of the concept of "hecho ilícito" Trend toward unification of contractual and extracontractual responsibility Development of "responsabilidad objetiva" Defenses available (1) Absence of causation (2) State of the art or risk of development (3) Misuse or unintended use (f) Damages recoverable (1) Compensatory (2) Moral damages (3) Rejection of punitive damages (g) (h) Collective responsibility and class actions Probable evolution of law and procedure 3. Comparison and Contrast with Law and Procedures in the U.S. (a) (b) Concept of "defective product" in regard to design, manufacture or instructions Procedure (1) Absence of juries (2) Limited discovery (c) Damages (1) Amount of compensatory damages (2) Punitive damages 5

6 (d) (e) Relation to criminal proceedings Jurisdiction over foreign corporations 4. Some Examples of How Certain Real and Hypothetical Cases Would Be Litigated in Various Latin American Countries 6