Product Liability Case Evaluation and Trial Strategy Considerations

Illinois Association of Defense Trial Counsel Springfield, Illinois www.iadtc.org 800-232-0169 IDC Quarterly Volume 22, Number 4 (22.4.5) Feature Article By: Charles P. Rantis Johnson & Bell, Ltd., Chicago Product Liability Case Evaluation and Trial Strategy Considerations The process of case evaluation and formulation of trial strategy and tactics is ongoing throughout the life of a product liability lawsuit. As defense counsel, a great deal of time is spent assessing the significance of evidence obtained during the course of oral fact discovery and oral expert discovery. There are a multitude of factors which defense counsel must analyze and consider when providing the client with the final comprehensive evaluation and assessment of the case in advance of trial. This article provides a framework for defense counsel s evaluation of the potential jury verdict exposure and a practical discussion of several trial strategies which impact the evaluation of the potential jury verdict exposure: plaintiff s contributory fault; the sole proximate cause defense; and admitting liability and defending the case on damages only. Framework for Case Evaluation for Product Liability Trial Well in advance of trial, defense counsel should prepare a comprehensive evaluation and analysis of the product liability case. A clear and concise analysis of the strengths and weaknesses of the plaintiff s theories of liability as well as the strengths and weaknesses of the theories of defense should be addressed in the evaluation. The evaluation and assessment of the potential jury verdict exposure is a two-fold methodology: first, a mathematical methodology must be employed as part of defense counsel s comprehensive analysis. The mathematical methodology provides a road map as to how defense counsel estimated the exposure and arrived at the proposed figures. The mathematical methodology is as follows: 1. Gross verdict potential Before any consideration of liability is made, what is the injury or death worth given the plaintiff s demographic data and the particular venue. 2. Net verdict potential The gross verdict potential is multiplied by the factor of 100% minus the percentage of plaintiff s comparative fault to ascertain the net verdict potential. 3. Likelihood of defense verdict What are the percentage chances of the defense winning the case based on the evidence and strengths and weaknesses of the contentions of the parties. 4. Relative culpability of the parties In a multiple defendant product liability lawsuit, the client will want to know what its specific percentage of the exposure is compared to the other defendants and the third-party defendant. Page 1 of 8

5. Settlement value The ranges obtained from the net verdict potential and the likelihood of a defense verdict serve as the lower limit and upper limit of the settlement range using the mathematical methodology. The second aspect to this analysis considers intangible factors as part of the evaluation of the potential verdict exposure and the settlement recommendations, for instance: 1. Analysis is of the applicable substantive law. 2. Admissibility of certain evidence. 3. Research of similar cases (verdicts and settlements). 4. Jury pool in a given venue. 5. Publicity surrounding accident or lawsuit. 6. Is there any bias against the defendant (e.g., utility companies, foreign manufacturers, insurance companies)? 7. Whether the plaintiff or the estate will evoke sympathy? 8. Whether plaintiff or defendant are likeable and have jury appeal? 9. Is the plaintiff a malingerer? 10. Facts of occurrence do the facts and circumstances of the accident defy ordinary common sense? 11. Relative strengths and weaknesses of expert witnesses. 12. Relative strengths and weaknesses of plaintiff s theories of liability. 13. Relative strengths and weaknesses of your theories of defense. 14. Competence and reputation of plaintiff s attorney. 15. Political climate and current events. 16. Economic climate. There are a multitude of factors which must be considered but are not quantifiable. Consideration of these intangible factors are just as important as the mathematical methodology. In addition to utilization of the mathematical methodology and consideration of the intangible factors of a given case, formulation of trial strategy and tactics will also impact defense counsel s comprehensive evaluation and assessment of the case in preparation for trial. Trial Strategy: Defense Based on Plaintiff s Contributory Fault The extent to which plaintiff s conduct and interaction with the product at issue may have contributed to or caused the accident is a significant liability issue in most product liability cases. The facts and circumstances in which a plaintiff s conduct may have caused or contributed to a given accident usually includes a list of the following: 1. Failure to follow warnings and instructions for safe use in operation recommended by the manufacturer. 2. Failure to utilize or removal of safety devices recommended by the manufacturer. 3. Failure to follow safety procedures recommended by the manufacturer or the plaintiff s employer. 4. Use of the product for a purpose not intended by nor reasonably foreseen by the manufacturer. 5. Use of the product to perform a function different from the function intended by the manufacturer. 6. Inadvertence, carelessness, or inattention in the plaintiff s use of the product. 7. Substantial alteration in the condition of the product by the plaintiff or some other third-party. Page 2 of 8

The evidence used to establish a particular defense based on the plaintiff s conduct and the nomenclature used to describe that conduct is of critical importance. Some defenses based on plaintiff s culpable conduct do not apply to all theories of liability. In the Illinois Supreme Court case of Simpson v. Gen. Motors Corp., 108 Ill. 2d 146, 483 N.E. 2d 1 (1985), the court held that plaintiff s contributory negligence is not a defense when such negligence consists merely in a failure to discover the defect in the product or to guard against the possibility of its existence. Simpson, 108 Ill. 2d at 152. Further, the court stated that a consumer s unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect should not be considered as a damage reducing factor. Id. After Simpson v. General Motors, only assumption of the risk of injury and unforeseeable misuse are valid damage reducing factors in a product liability action based on strict liability in tort. Id. In 1986, the Illinois Legislature enacted modified comparative fault in tort actions. (735 ILCS 5/2-1116 added by P.A. 84-1431, Art. 4 1, eff. Nov. 25, 1986; P.A. 89-7 which amended this section effective March 9, 1995 has been held unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997)). The modified comparative fault statute provides that plaintiff s recovery is reduced by the plaintiff s contributory fault unless the plaintiff is more than 50% at fault for causing his own damages. If the plaintiff s fault is more than 50%, then judgment is entered in favor of the defendant. 735 ILCS 5/2-1116 (West 1994). a. Assumption of the Risk To establish the defense of assumption of the risk of injury in a product liability action based on strict liability in tort, defense counsel must establish the following: that the plaintiff knew of the danger and appreciated the risk of injury presented by the product; and that the plaintiff voluntarily and unreasonably proceeded to encounter the known danger presented by the product. Cleveringa v. J.I. Case Co., 230 Ill. App. 3d 831, 852, 595 N.E. 2d 1193, 1208 (1st Dist. 1992). Given that the test for assumption of the risk of injury is subjective, some plaintiffs will attempt to overcome the defense by asserting that they had no knowledge of the defect or had not discovered the exact defect presented by the product. However, determination of whether plaintiff assumed the risk of injury is not made solely based on the plaintiff s own self-serving statements, but rather an assessment of all of the facts including the plaintiff s age, experience, knowledge, and understanding in addition to the obviousness of the defect and the danger it posed. Cleveringa, Ill. App. 3d at 852, citing, Varilek v. Mitchell Engineering Co., 200 Ill. App. 3d 649, 662, 558 N.E.2d 365 (1st Dist. 1990). If there is some evidence from which a jury might infer the plaintiff s assumption of the risk, then it is within the province of the jury to determine that issue. Cleveringa, 230 Ill. App. 3d at 852; see also, Boland v. Kawaski Motors Mfg. Corp., 309 Ill. App. 3d 645, 653-54, 722 N.E. 2d 1234, 1241-1242 (4th Dist. 2000). b. Unforeseeable Misuse The second recognized affirmative defense which serves as a damage reducing factor against any adverse verdict is unforeseeable misuse. It must be emphasized that foreseeable misuse is not a defense or damage reducing factor in a product liability action based on strict liability in tort. Spurgeon v. Julius Blum, Inc., 816 F. Supp. 1317 (C.D. Ill. 1993). Misuse of a product occurs when it is used for a purpose neither intended nor reasonably foreseeable by the defendant based on an objective standard. William v. Brown Mfg. Co., 45 Ill. 2d 418, 425, 261 N.E.2d 305 (1970). Further, the manner in which the particular purpose was being accomplished is not an issue under a theory of Page 3 of 8

misuse. Arellano v. SGL Abrasives, 246 Ill. App. 3d 1002, 1010, 617 N.E.2d 130, 136 (1st Dist. 1993)(citing Varilek, 200 Ill. App. 3d at 666-67). There is little doubt that the affirmative defense of unforeseeable misuse is seldom discussed in Illinois appellate decisions because if the plaintiff is misusing the product, he is likely using the product in an unintended manner, not for an unintended purpose. Likewise, given the fact that assumption of the risk requires proof that the plaintiff had actual knowledge of the danger in the product, it may be difficult to establish because a plaintiff will seldom admit to having actual knowledge of a particular danger. In the vast majority of cases with which Johnson & Bell has defended manufacturers and others in the chain of distribution, plaintiffs have moved in limine to exclude any evidence of plaintiff s assumption of the risk of injury and contributory negligence. Further, a plaintiff may be able to rebut the assumption of the risk argument by asserting that his employer left him no alternative but to accept the risk posed by his employment in order to exercise and protect the plaintiff s right and privilege to perform his job. Varilek, 200 Ill. App. 3d at 662-63. Therefore, it may be difficult to persuade a jury that a plaintiff unreasonably assumed the risk of injury which may have been a requirement of his job. If there are blue-collar jurors, then these working class jurors may be disinclined to accept the notion that a plaintiff who was injured in the course of employment assumed the risk of injury. Another strategic problem presented by Illinois law is a jury instruction which the court must give when the plaintiff s contributory fault is at issue. Section 2-1107.1 of the Illinois Code of Civil Procedure requires that the court notify the jury of the effect of its determination of apportionment of contributory fault. Specifically, the jury is told that if it finds that the contributory fault of the plaintiff is more than 50% of the proximate cause of the damages for which recovery is sought, then the defendant shall be found not liable. 735 ILCS 5/2-1107.1 (West 1994) ( Jury instruction in tort actions ) (P.A. 89-7 which amended this section effective March 9, 1995 has been held unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E. 2d 1057 (1997)). The benefit of focusing the theory of defense based on plaintiff s conduct is to highlight for the jury that the plaintiff s use of and interaction with the product was unsafe, but the product was reasonably safe. Proof of the plaintiff s conduct characterized as assumption of the risk of injury or unforeseeable misuse in strict liability in tort cases or contributory negligence in negligence based product liability actions forces the jury to evaluate the condition of the product within the context of the plaintiff s interaction with the product. Obtaining admissions from the plaintiff at the plaintiff s discovery deposition is of critical importance in establishing sufficient evidence to satisfy the subjective test of assumption of the risk of injury. On the other hand, the difficulty with the trial strategy focused on the affirmative defenses of assumption of the risk or even unforeseeable misuse is that jurors are provided with the opportunity to reach a compromise verdict. If the plaintiff has some jury appeal or is otherwise sympathetic, jurors may find in favor of the plaintiff and award a significant amount of damages, but reduce those damages by some percentage at or below 50%. Trial Strategy: Withdrawal of Affirmative Defenses and Focus on Sole Proximate Cause Irrespective of whether the plaintiff s conduct is characterized as assumption of the risk of injury or unforeseeable misuse or even contributory negligence, the defendant manufacturer may assert that Page 4 of 8

the sole proximate cause of the plaintiff s accident was the plaintiff s own conduct or the plaintiff s employer s conduct. a. Plaintiff s Conduct or Plaintiff s Employer s Conduct as Sole Proximate Cause of Accident The conduct of the plaintiff is relevant to the issue of proximate cause in a product liability action based on either strict liability in tort or negligence. In the case of Korando v. Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 344-45, 637 N.E.2d 1020, 1025 (1994), the plaintiff s decedents were killed in a one car motor vehicle accident after the tread and top belt of the right rear steel belted radial tire separated from the belt. The decedents automobile skidded and went off the roadway, where it collided with a tree, vaulted into the air, and landed upside down in a creek. The plaintiff s decedents died as a result of the injuries sustained in the accident. The sole theory of recovery was based on strict liability in tort. The defendant manufacturer denied the plaintiff s allegations and raised three (3) affirmative defenses: misuse, assumption of the risk of injury, and contributory negligence. Korando, 159 Ill. 2d at 339. Subsequently, the defendant tire manufacturer withdrew its affirmative defenses. Id. at 339. As such, these defenses were not presented to the jury for consideration. However, the tire manufacturer through expert testimony presented evidence of the driver s speed, braking, and steering as the proximate cause of the accident. Id. at 340-41. One of the issues on appeal was whether evidence of the decedent driver s conduct was admissible in a strict liability in tort action without being pled as an affirmative defense. Id. at 344-45. The Korando court agreed with the defendant tire manufacturer that it was not required to plead lack of proximate cause as an affirmative defense. Id. at 344. The Korando court held that evidence of plaintiff s conduct is directly relative to the issue of proximate cause. The Korando court concluded: In this case, the defendant s evidence with respect to [the decedent driver s] speed, braking and steering relates to the defendant s denial that its tire s alleged defect was the proximate cause of the injuries suffered by the plaintiff s decedents. We find that the conduct of a plaintiff or a third party is relevant to the issue of proximate cause in a strict products liability case. Although a plaintiff s negligence is generally not an issue in a strict products liability case, evidence relating to the plaintiff s conduct is admissible to establish a defendant s theory of defense that the product was not the proximate cause of the plaintiff s injuries. Id. at 344-45. The Korando court further stated that evidence of the decedent driver s speed, braking, steering, and the substantial alteration of the tire were all relevant to the defendant s denial of the plaintiff s claim, and therefore properly admitted. Id. at 346. b. Third Person s Conduct Need Not Be Negligent Conduct It is important to note that a defense based on sole proximate cause does not require that a defendant demonstrate that the third person s conduct was negligent or fault-based. McDonnell v. McPartlin, 192 Ill. 2d 505, 522, 736 N.E.2d 1074 (2000). The Illinois Supreme Court in McDonnell stated that the sole proximate cause jury instruction does not require that a defendant demonstrate that a third person s conduct was negligent in addition to being the sole proximate cause of plaintiff s injuries. McDonnell, at 522-23. The sole proximate cause instruction, like any other jury instruction, requires that there be some evidence to justify the theory of the instruction. Id. at 522. Page 5 of 8

c. Sole Proximate Cause is an All-or-Nothing Proposition The benefit of the sole proximate cause otherwise known as the empty chair defense is clear: the jury is not provided with the opportunity to find in favor of the plaintiff but still reduce the verdict by some percentage of fault. The affirmative defenses of the assumption of the risk of injury and unforeseeable misuse are not complete bars to plaintiff s recovery. Coney v. J.L.G. Indus., Inc., 97 Ill. 2d 104, 119, (1983); 735 ILCS 5/2-1116 (West 1994). They are damage reducing factors only. Coney, 97 Ill. 2d at 119. The sole proximate cause defense is an all-or-nothing proposition. The defendant manufacturer must successfully argue that another entity s conduct was the sole cause of the plaintiff s injuries. See Zavala v. St. Regis Paper Co., 256 Ill. App. 3d 736, 628 N.E.2d 405 (1st Dist. 1993). Where, for example, the employer of an injured plaintiff fails to follow a product manufacturer s warnings and instructions and that employer later takes post-accident remedial measures to require compliance with those product instructions, such facts may potentially serve as evidence that the employer s omission was the sole proximate cause of the claimed accident. To argue only that the employer s omission had combined with some other act or omission or with some product feature to cause the injury would not satisfy the sole proximate cause defense. d. IPI (Civil) 12.04 and IPI (Civil) 12.05 In Illinois, when proceeding on a theory of defense based on sole proximate cause, defense counsel will tender IPI (Civil) 12.04 (West 2006) ( Concurrent Negligence Other Than Defendant s ). The long form version of IPI (Civil) 12.04 applies where a plaintiff s injury is caused by some person other than the defendant. IPI (Civil) 12.04, Notes on Use (West 2006). A similar version of this jury instruction is at IPI (Civil) 12.05 ( Negligence Intervention of Outside Agency ) which applies where a plaintiff s injury is caused by something other than the conduct of the defendant. IPI (Civil) 12.05, Notes on Use (West 2006). It is important to note that in order to be successful, the defendant manufacturer must contend that another person s or entity s conduct was the sole cause of the injuries. See Leonardi v. Loyola Univ. of Chi., 168 Ill. 2d 83, 93, (1995); IPI (Civil) 12.04, Notes on Use (West 2006). It is insufficient to argue that another person s or entity s conduct combined with that of the defendants in order to cause the injury. Id.; also see IPI (Civil) 12.04, Notes on Use (West 2006). The sole proximate cause defense will fail under these circumstances. Further, in all likelihood, the court would likely reject any tender by the defense of IPI (Civil) 12.04. Trial Strategy: Admitting Liability In the previous sections of this article, the discussion focused on enhancing a defendant s likelihood of success by focusing on liability factors. On the other hand, there are cases with unfavorable facts and totally lacking in credible theories of defense. Under those circumstances, contesting liability at trial would expose the defendant to a risk of an aggravated verdict. Generally speaking, an aggravated verdict could be the result of one or more of the following factors: 1. Lack of credible evidence and liability arguments. 2. Conduct of the defendants. Page 6 of 8

3. Conduct of counsel. 4. Aggravating factors inherent in the facts of a given case. It is well-established under Illinois law that once a defendant admits liability, facts relating to issues of liability are irrelevant. Bullard v. Barnes, 102 Ill. 2d 505, 519-520, 468 N.E.2d 1228 (1984). If a defendant admits liability, then liability matters are not in controversy. Moreover, a defendant s liability is not relevant to the issue of damages when defendant admits fault and proximate cause for the accident. Bullard v. Barnes, 102 Ill. 2d at 519-20. The facts and circumstances of an accident should not be presented to the jury when liability is admitted. Pleasance v. City of Chicago, 396 Ill. App. 3d 821, 828-29, 920 N.E.2d 572 (1st Dist. 2009). Finally, the issue of when the defendant admits liability is irrelevant to the consideration before the jury which is what represents fair and reasonable compensation to be awarded to the plaintiff. See Balzekas v. Looking Elk, 254 Ill. App. 3d 529, 535-36, 627 N.E.2d 84 (1st Dist. 1993). The strategy of admitting liability focuses the case on what is fair and reasonable compensation. Admitting liability will maximize the defendant s credibility with the jury. In addition, the defense should attempt to portray the plaintiff s attorney or the plaintiff as greedy in an admitted liability case. When the credibility of the defendant and defense counsel is enhanced by admitting liability (both negligence and proximate cause), there is a great likelihood that the jury will be receptive to the defense arguments. In contrast, litigating liability issues with underlying bad facts with little to no likelihood of a defense verdict will likely cause the jurors to view all defense arguments with skepticism. Liability factors tend to drive up damages and damages tend to drive up liability factors. Unless the defendant admits liability under those circumstances, the recipe for disaster in the form of an aggravated verdict is all but certain. The ultimate goal of admitting liability is to minimize or even eliminate the likelihood of an excess verdict and to bring the jury verdict within or below a certain range. In an admitted liability trial, the plaintiff will attempt to exploit the sympathy factor with the jury. In contrast, the defense must make every effort to minimize the sympathy factor by exercising common sense and humility in front of the jury. The defense must present damages experts who will provide a realistic and more down to earth presentation of the damages compared to plaintiff s stratospheric presentation of damages. Conclusion Case evaluation and assessment begins with the initial investigation and analysis of the case and continues through trial preparation. Eliciting admissions from the plaintiff at his deposition is required to establish the evidence necessary to support the affirmative defenses of assumption of the risk and, to the extent applicable, unforeseeable misuse, in a product liability action based on strict liability in tort. In cases where such evidence is lacking, withdrawal of affirmative defenses and proceeding on a sole proximate cause defense can be very successful. On the other hand, without credible liability defenses, admitting liability as difficult as it may be will likely minimize or eliminate the likelihood of a verdict in the upper range of the gross jury verdict potential of a case. Defense counsel should provide a realistic case evaluation and assessment of the exposure as well as the likelihood of success well in advance of trial. The foundation for a successful trial strategy is often the result of careful, deliberate, and insightful analysis of the case. Page 7 of 8

About the Author Charles P. Rantis has been in practice for 27 years. Mr. Rantis is a shareholder at Johnson & Bell, Ltd. where he specializes in product liability, construction negligence, and other personal injury and wrongful death cases. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org. Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 22, Number 4. 2012. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL 62563-0588, 800-232-0169, idc@iadtc.org Page 8 of 8