The Court In Tincher V. Omega Flex, 2014 Pa. Lexis 3031, Held That A Plaintiff Pursuing A Cause Of Action Under A Theory Of Strict Liability Still Must Prove That The Product Was In A Defective Condition, As Defined In Section 402A Of The Second Restatement. The Court Set Forth Two Ways In Which A Plaintiff Now Must Prove A Products Liability Case:
The Danger Must Be Unknowable And Unacceptable To The Average Or Ordinary Consumer (The “Consumer Expectations” Analysis).
A Reasonable Person Would Conclude That The Probability And Seriousness Of Harm Caused By The Product Outweighs The Burden Or Costs Of Taking Precautions (The “Risk-Utility” Analysis).
These theories of liability must be resolved by the fact-finder. While Tincher provides the new framework for products liability law in Pennsylvania, many of the same tools available to plaintiffs attorneys before this ruling still exist in the post-Tincher world. One of the most powerful tools in products liability cases is the corporate designee deposition. Under Pennsylvania Rule of Civil Procedure 4007.1(e), a plaintiff may name a defendant corporation or other business organization as a deponent. Plaintiffs counsel must describe the areas of inquiry and the documents to be produced by the company at the deposition. The company must produce one or more employees to testify in the areas outlined in the notice of deposition. The designated individual must then testify to matters known or reasonably available to the company. Too many plaintiffs lawyers fail to realize the importance and power of the corporate designee deposition. This tool can and should be utilized in every products liability case.
The following steps should be taken to ensure that plaintiffs counsel is firmly educated on the product, understands the critical evidence, asks the crucial questions at deposition, and locks the defendant in on the critical testimony, admissions and defenses of the company.
Lock in the Designee
The corporate designee speaks on behalf of the defendant corporation. Any admissions made by the deponent are not only admissions made by himself or herself, but are also admissions made by the company. It is crucial to confirm the understanding of the witness that he or she is being deposed not only in an individual capacity, but also on behalf of the company. This witness’ testimony will bind the corporation for this case.
The deposition will allow you to lock in what the company knows as well as what the company doesn’t know. If a defendant produces a corporate designee who is unable to answer your critical questions, this can be used to argue that the corporation, through its designee, does not have answers to these questions.
Importantly, make sure you videotape the deposition. Videotaping the deposition will ensure less gamesmanship by the witness and allow the jury to see delays in answering the questions and the body language of the designee. Under Rules 4017.1 and 4020, all or portions of the videotape of the designee can be used in a plaintiff’s case at trial.
Evidence of other accidents and injuries is admissible at trial when the other incidents are sufficiently similar to the plaintiff’s accident. The plaintiff in a strict products liability case may rely on evidence of other similar accidents involving the product to prove notice or defectiveness, as in Hutchinson v. Penske Truck Leasing, 876 A.2d 978 (Pa. Super. 2005).
Evidence of other incidents is often a battleground between plaintiffs and defense lawyers at the motions in limine stage of litigation. Prior accident information is often seen by the jury as powerful evidence. Obtain similar accident information before the corporate designee deposition from discovery requests to defendant and, more importantly, through independent research. The corporate designee must testify regarding the defendant’s knowledge of each potentially similar accident and all similarities with the subject accident. You must get all information the defendant has regarding the prior accidents, as well as the testing and analysis the defendant did following the accidents. If accidents occurred on different models designed by the defendant, establish similarities between the models, particularly with regard to the design element you claim is defective.
Conversely, if there is no evidence of prior, similar incidents, the defendant will attempt to argue to the jury the lack of other similar incidents proves that the product is safe, as in Spino v. John S. Tilley Ladder, 671 A.2d 726 (Pa. Super. 1996). The testimony of the defendant’s corporate designee is important to destroy the lack-of-similar-incidents defense. Ask the witness the defendant’s methods for receiving information; its procedures for investigating incidents; and its policies for tracking and recording information from incidents. The corporate designee should be asked for:
- Information on the product directing users to contact the company in the event of an accident.
- Literature accompanying the product directing users to contact the company in the event of an accident.
- Information provided to dealers regarding what they should do if an accident is reported to them.
- Who the corporation has designated to receive information on accidents and what that person does with the information.
- Whether the defendant generally learns of accidents from lawsuits and how the defendant found out about the plaintiff’s accident.
- The defendant’s policies for record retention and storage concerning accidents.
- The defendant’s investigative policies after being contacted regarding accidents.
If the defendant’s policies and procedures do not adequately capture, investigate, record and retain other potential accidents, and do not give users and sellers information on how to report problems with the product, the defendant will not be permitted to introduce evidence that no other similar accidents exist.
Alternative Feasible Designs
It is important to always have an expert conceptualize an alternative, feasible design to the defendant’s product. In the right case, get your expert to prepare a diagram or mock-up of an alternative design and ask the designee questions on the feasibility, cost and safety implications of the proposed alternative design. Under Tincher, a cost-benefit analysis is relevant to the jury’s analysis of the product defect. For example, in a failure-to-guard case, ask the corporate designee the cost of the guard proposed by the plaintiff’s expert. Generally, the cost of a guard will be minimal in relation to the overall cost of the product. The plaintiff’s attorney should know the retail price of the product, and should discover during the deposition the defendant’s cost to manufacture the product. Make the corporate designee admit that the guard would not limit the functionality of the product.
Subsequent Remedial Measures
Under Pennsylvania Rule of Evidence 407, when measures are taken by a party that would have made an accident less likely to occur, evidence of subsequent measures taken by the company is not admissible to prove a defect in the design of a product. However, evidence of product changes can be admissible for other reasons, such as impeaching a witness, showing control or showing that the change was feasible before the accident. In every case involving a change to a product after an accident, devastating admissions can be gained from the corporate designee.
The corporate designee should be asked whether the product changes were undertaken to make the product safer and prevent future accidents. In some cases, corporate designees are determined to testify that the product was perfectly safe at the time of the accident. The designee may testify that post-accident changes were made to the product for reasons other than safety, such as to change the aesthetics of a product or to change the performance of the product. If the corporate designee will not admit that the changes were made to make the product safer, this testimony (and the post-accident changes) should be admissible.
Conversely, the corporate designee may attempt to hide behind the protections of Rule 407. To do this, the witness must admit the product changes were done to make the product safer and to prevent accidents such as the one that injured your client. If this approach is taken, use the testimony to prove that a safer design was available at the time of the accident and was not used. Plaintiffs counsel should ask the following:
- Whether the added safety feature could have been implemented before the accident.
- Whether the added safety feature makes the product safer.
- Whether there is any downside to implementing the added safety feature.
- Whether there is any prohibition in implementing the added safety feature.
- What the cost of the added safety feature would be.
- Whether the added safety feature would compromise the function of the product in any way.
- Whether the added safety feature would have prevented the subject accident.
Even if the jury does not learn of the subsequent product changes, admissions by the designee that the product could have been designed more safely and exactly as your expert says it should have been designed can be devastating to the defendant’s case.
Larry Bendesky is the managing shareholder of Saltz, Mongeluzzi & Bendesky. He concentrates his practice on complex products liability cases and catastrophic construction accidents.
Robert W. Zimmerman is an associate at the firm. He focuses his practice on products liability cases and workplace accidents.