Presenting Juries with a Lifetime of Reality in a Two-Week Trial: Reflections on Defending Industrial Equipment Manufacturers in Design Defect Cases

117 � you never designed any instruction materials or warning labels used on any other than what he does or learns while working for lawyers who pay him to write reports a great deal, and i am extremely grateful for their shared insights. fort to develop, prototype, and test an alternative design which would have met your safety and the importance of your own case � what did we send you (over course of case), and what did you need to devise a theory that diverts attention from poor maintenance or training by the im- agree that this product complies fully with applicable b56.1 standards, adopted nesses to convey to the jury that safety is, and has always been, integral to every aspect of defending industrial equipment manufacturers in design defect cases first week is spent with housekeeping, logistics, completion of rulings on certain motions, demonstration proved to be an extremely helpful teaching tool for our witnesses. box" capsule case restatement in a 2006 trial involving a stand-up end control reach truck these company witnesses are uniquely qualified to explain how safety is an integral part of the entire target for the lawyer armed with a seriously injured worker client and a high-pressure, shoddy intellectual property and commercial cases. he has tried maintenance and product misuse or abuse. likewise, to rebut the claim that your product series of factors and features; i wrote each one down as he did so. there were a few occa- truck, late at night, down a steep hill (despite warning tion. ity to ensure that the machinery is maintained properly and used only by carefully trained, and could recall no details of the accident. for strategic reasons, plaintiffs chose to present � what are your opinions? because each work environment is unique, whether own terms their consensus for safety and utility regarding all aspects of the product's basic and practical for its intended use in every industrial application. the way that product is used not be in this courtroom. ment. together for the jury. this is your final and most comprehensive opportunity to persuade. the jury will look forward to a fight between you and that expert. are potential "home runs"26 to the design of lift trucks sold in this country. was "to assure so far as possible every working man and woman in the nation safe and 29 u.s.c. � 651(b). cases before juries in state and federal courts throughout of communicating the information that you and your witnesses need to teach the jury. odds witnesses to step down from the witness stand and literally teach directly to the jury. i like told a philadelphia jury the following: answered, "of course not � this is not a real world design." resisting an impulse to ask a familiar with the product's design and history, have helped develop that design, and have calculated gamble and the following questions and responses occurred. in this era of pervasive high-technology, it is a challenge to devise an effective means adverse safety consequences. torts: law and advocacy, 4 west's pa. prac. � 24.9 (2008). truck manufacturer cannot know these workplace particulars and cannot run the risk of a there are no perfect trials. there are no perfect witnesses, perfect claims, perfect prod- ask me to do that. i wasn't paid to do that. a futile objection. after what seemed like an eternal pause, the witness said, "i can list the retained independent consultants, present the accident and injury causation analysis (accident � would not expect i am convinced that using these demonstrative tools helped the jury understand that how the company monitors feedback about its performance in the field even after a design in my opinion, the closing argument is extremely important - you get to tie everything the truck could be neither steered nor brought to a stop due to a consequent loss of power defending industrial equipment manufacturers in design defect cases phase); and (4) limit and affect what occurs at trial. obligation to customize and monitor all the equipment in use at his facility.12 � a categorical review of the now-established undisputed facts, linked directly to will hear and you will see that � despite plaintiff's burdens and despite the fact that o meetings with our design engineers for a detailed description of the "lavin method," see s. gerald litvin & gerald austin mchugh, jr., i often use the renowned "lavin method" of expert cross-examination as my organi- monday or tuesday of the second week in trial and the judge asks you, "counsel, haven't � would not expect only by qualified, well-trained operators.13 in your family line. and of course, plaintiffs invariably claim that the on-product warnings hypothesis � what new hazards you would have to accept with their warnings and instructions. you will hear, however, that in fact the employer had no 107 truck has tremendous utility in the work place and allows men and women to thoughts about the opening statement hear and see in this courtroom as well as the law her honor directs you to apply hypotheses 1994 was unsafe and defective phase of questioning, and the response makes it clear to the jury that the plaintiff's demands to combine computer-based presentations and exhibits projected from the document camera before the crash, he literally stuck his foot out of the compartment and was injured. sues. i may say, design decisions. you continue to earn the credibility essential to persuasion. work done to the lack of the same on plaintiff's part. � an emphasis on the critical instructions jurors will hear from the court, especially machine with features of a competitor's product, or, worse, devices used on other models 7 25 id. at vi. the standard (and its revisions) is primarily intended to establish "safety requirements relat- id. hill is hidden and insidious. however, you will hear that, in fact, mr. johnson admitted should be revised. you've never written to anyone in the four years that you've equipment in use in almost every warehouse, plant, and foundry in america. we fdcc quarterly/winter 2009 36 14 element, each � "version evolution" � "did you notice...?" 29 our expert's testing that shows such an enclosure would pose deadly consequences i. in product liability cases. from time to time, i include questions, colloquies, or anecdotes liftmaster following the accident. the report was replete with hearsay, and contained a final section typically, i aspire to achieve six goals during my opening. first, right out of the box, plaintiff's expert is not; what he has done as compared to what the plaintiff's expert has not i agrees! therefore, contrary to what counsel suggested in his opening, in fact there in a stunning fashion. i have found modern computer-based presentation programs to be see excerpts from my opening statement in this case, supra part v, at 6-7. plaintiffs characterize the asme b56.1 requirements as "minimum" standards design any product to avert a single event or consequence (the serious injury that occurred). ing position � seated and belted - he could not possibly reach and be injured by the mast viii. vii. (nor would he have done so himself). in my closing, i then argued that "we alone showed � a thematic analysis of my case, reiterating how we stood behind our product in connection with each witness's testimony. sold is by definition safe for industrial applications. 28 design defect cases plaintiff's employer and its worker's compensation carrier over the course of two months defending industrial equipment manufacturers in design defect cases at the same time, oshavests in the workplace owner the responsibility for determining � in every case where you have issued a report, given a deposition, or testified at 1 the amalgam sions contrary to what he knew were the undisputed facts, my opponent lost all credibility examples include automatic signaling devices, discussed supra, and reach truck enclosures. � more important, tell me what steps you took, and who you spoke to, while you thoughts about the closing argument the face of productivity demands, and the warehouse manager alone has the ability and the finally, you will hear that had mr. johnson been in his proper seated position, � qualifications in other cases assist. in addition to our theme that plaintiff's entire case rested on cascading unproven that." i walked over to the easel pad and said, "fine, please give me those criteria now." 12 healthful working conditions[.]"2 to his own. he too sat quietly as i spoke.19 as what will be gained in the translation. the following is an example of an expert cross- 101 120 the manager of a warehouse, foundry or depot has a plethora of resources at his disposal, including 11 confront the expert by asking questions about what he has not done, has not reviewed, or � you are not a work place safety engineer. when used properly. this evidence is the foundation of your case.all the promises you have fatal flaws in � "easel engineering" � not done manager has to assure that his lift truck fleet is systematically and properly maintained and � as to each opinion, explain that opinion, and please feel free which people and of all sorts of machinery must work together in a safe, productive, and the inner mast cross-member lowered and crushed his arms.33 the trial, the closing argument writes itself. qualifications � formal education and through the use of videos. in that case, the plaintiff suffered a severe closed head injury requirements of asme b56.1 enhance workplace safety. following is an example of statements and questions asked during a qualifications cross- � a restatement of my main theme of the case; your colleagues' peer review, and stake your professional reputation on their reply?" he o testing, results our factory, it is rigorously tested, evaluated, and re-evaluated by our in-house en- field. therefore, you need to identify and gain early access to your client's employees who and give testimony criticizing a variety of design features. he usually spouts platitudes about about whether you can commit to follow the court's instructions, put aside all feel- o models, mock-ups, tests, demonstrations, anima- is sponsored by the industrial truck standards development foundation, in accordance with established evidence of 90-degree steer input and no brake-induced 5 o what is its rated stopping distance from full speed, forks trailing (reverse), the pennsylvania super lawyers for each of the years 2003 16 115 and was ignoring all of the warnings on the truck. 104 jurors may not understand all the technical nuances and complex calculations, but they will years before the involved truck was sold; tell us mr. rogers, what steps were once he conceded he was finished, i asked the following question: "sir, are you willing by changing your product on the say-so of a paid courtroom expert. you establish yourself lanyards, laxatives, champagne corks, lemon peelers, seatbelts, chicken surrogate operator data, and created an animation to depict various hypothetical and as- of reasonable engineering minds having differing opinions on the safety of your product. zational framework.20 likes cars. if that product were sold as a new car today, it would pass few current federal litigation." standard.11 sumed seated and unseated operator positions. we also emphasized the employer's failure a description of plaintiff's allegations and certain aspects of my client's defense appears infra, pp. 18 sions when i prodded him for specifics, he would not commit, and he allowed me to put a 29 u.s.c. � 651(b)(3). incorporation, osha has decreed that industrial trucks designed in compliance with the ultimately, if you have stayed true to your opening promises and your themes throughout timeline � when were you retained? am convinced that the jury expects to hear what your witnesses have to say, particularly is often an untested concept written on the courtroom easel pad.16 � baseline another example of a type of cross-examination method is the "peripheral" cross-ex- system to prevent this type of occurrence; had the plaintiff been in his designated operat- and seeing "easel engineering" in the trial. i define an easel engineer as one who typically � may i assume then that you are familiar with the lift truck's specifications, 37 � reconstruction of the accident my themes; through 2007. supplied instructions. 116 i emphasize that progress and improvement do not indict what went before;30 meet the basic design and performance criteria specified in that standard.8 it would be impossible for him to reach into the mast machinery � even his expert process over the years. struction of both the accident facts and mechanism of the claimed injuries. reconstruction, biomechanical analysis), and address damages. precise � fields of expertise (mechanical engineering, biomechanical which the plaintiff's counsel took a very unusual approach: early in his opening, he liter- defendant. in a very short time, with an abrupt but sincere contrast in affect, you can change toward that end, congress authorized the secretary of 34 audible alarm, sounding continuously while the truck is in motion, one can imagine the cacophonous result � causation of the accident id. certainly discern who genuinely knows the product. our design team sincerely believed that an operator can safely and easily do any tasks for construction, aircraft, printing press, recreational and con- truck. safety of the country's workers. in its regulations, oshaadopted and incorporated the 1969 105 tises, etc.)? the following are some additional examples of questions i have asked company wit- have been trained to conduct all operations from the seated position wearing his truck was sold. from past trials to illustrate certain points. many of my thoughts are the results of mistakes, at first glance, this five-step process may seem simple; rest assured, it is not. the "lavin cally discuss the undisputed facts established in discovery. fourth, i emphasize that my has not considered; by asking him about inconsistencies between his conclusions and the 10 to properly maintain its lift trucks36 phase questions from a recent trial.28 in fact, everything and possibly everyone in this courtroom has been moved at one time by feature which you say is defective, dangerous, and deadly, correct?you actually legations plaintiffs make and several defense themes. the remaining sections focus on the of proof on any issue;37 cidental contact. however, you will hear that, in fact, his client testified under oath and injury reduction methods, and he trashes the in a typical open voir dire, plaintiff's counsel will ask most of the questions and will accidents, typical allegations, and defense themes unproven by plaintiffs now that the trial evidence is concluded." i emphasized that the jury a tested, validated, safer alternative design, feasible at the time our truck was sold, i took a did not have these devices, false information could easily be conveyed to pedestrian workers. finally, it in deposition that he intentionally reached into the mast area, and in the process ansi procedures. id. caused the injuries, you need to point to the conduct of the plaintiff or others that violates production industrial truck. guard between the operator's compartment and the mast assembly. would make use of advanced technology, systems, and components throughout design, in the face of enormous sympathy for the seriously injured party and the compres- in a huge warehouse with many such vehicles so equipped. moreover, if some vehicles in that warehouse own common sense, we would not be here. truck. trucks allow people to perform herculean tasks, which decades ago had to be done manually. i strive to emphasize the osha scheme for workplace safety and define my product's know through the discovery process what the claims are, and what we expect the criteria.are you willing - and able - to do so now?" plaintiff's attorney refrained from making in his own body, for a "crime" committed by the people on defendant's assembly line. our deliberations; a lift truck that meets the applicable requirements of asme b56.1 when appendix a. � safety of the design finally, it is critical during voir dire to tackle head-on the sympathy and corporate is- we have computer-based modeling and design programs. our team of engineers anced internal combustion lift truck. he forgot his aisle destination, so he needed to read machinery; and the plaintiff caused his injuries by ignoring numerous on-product warnings and test, and i will be hanging on every word!" however, in a real world trial, the defendant obvious comments in my closing argument. by law, the employer bears the obligation to guarantee a safe workplace.4 in another case, we demonstrated to the jury the reliability of our products both orally the design decisions which led to our model line were finalized, another ten during the next fifteen minutes or so, the witness spewed in very cavalier fashion a at these opinions (the "fence"22 thoughts about voir dire ago, were you not? you took pictures, you took videos, you spoke with super- then get the now-paranoid witness to agree to a myriad of safety features, warnings, and been many advances in component technology and completely new software late counsel for major automotive, motorcycle, industrial, lawyers plan to score their lethal points in your case. and women have worked their entire lives designing and building industrial tools. industrial design engineer and our biomechanics expert actually give portions of their testimony while a home run is where a case may be won with a single cross-examination session. may be a warehouse, outlet, foundry, or other work site, and such workplaces are comprised of any of these, including the subject accident an example of a more argumentative approach happened in a case i tried last year in i took what i considered a unique opportunity to serve up a highly argumentative opening assumptions, we told the jury that the code label on the side of the pallets on the forks. instead of dismounting and walking to to play that video: yours or the plaintiff's attorney? � three other "similar" incidents with different trucks at that if a aspect of an industrial truck's design or manufacture for the happening of the accident and manufactured is safe for use in any industrial application by a trained operator following the successful defense theme is born when the first pleading is served - maybe sooner questions the jury will be required to answer; hope to be clear guidelines for making the right decision. i typically organize my closing your opening statement is the perfect opportunity to replace the hindsight myopia of defending industrial equipment manufacturers in design defect cases in real world use. we do not agree that we are responsible - if we did, we would total lack of controllability � despite undisputed physical trucks." id. at v. the next year, "the american standards association (now called the american national certain features enhance or detract from safety will necessarily vary with the site use.10 reacting, and grandstanding. expert cross-examination is the critical bridge between your this man and his wife. i am asking you now to take a few minutes and really think have the products listed on an array of full-size poster boards). his expert claimed that the tives of manufacturing, labor, warehouse, and insurance industries, and the product is by its experts' design "solution" o exemplar product inspections lift truck manufacturer were to alter or add to the basic truck design required by the asme is in the proper position. plaintiff's theories into the context of the real world and to turn your opponent's attempts hypotheses are fatally flawed and fall far short of supporting plaintiff's burdens as to plaintiff's burdens of proof, and that sympathy must play no role in their o nass, fars data to his tirade and raised no objections to anything he said. see 29 c.f.r. � 1910.178(a)(2) (1970). his training and prevented him from deliberately sticking his foot out and hurting theme, with which the expert has to agree, relating to the plaintiff, the accident facts, the o test v. demonstration the expert � with the identical "deadly" restraint system! the chevy was defective and unsafe? design necessarily goes hand in hand with progress, in gathering the information in the above chart, you will be prepared for your trial and the accident, the maintenance folks checked the truck and everything worked fine! reiterating the importance of doing all tasks while seated and belted and illustrating the 17 on the defense of industrial equipment, followed in part iii by a discussion of typical al- i describe the process as one where, in its five respective phases, you (1) let the jury analysis to counsel at your deposition? is suing my client, a corporation. at the end of the trial you will be asked to make � broken promises made in opening great jury appeal. that may or may not be possible.31 � a categorical listing of the reasons why plaintiff's own proofs as to each of his are unreasonable. and can help you understand its place in history. quite useful to depict and display documents and photographs you reference as the witness society of mechanical engineers adopted a resolution to develop a safety code for powered industrial you will hear that, had mr. johnson simply followed our instructions, and his knew that he would be hesitant to object to my approach, which bore quite a resemblance that our jury can evaluate exactly what were the conditions under which what � would not expect fdcc quarterly/winter 2009 plaintiffs have the benefit of hindsight because they have the unique opportunity to re- ing this truck so you could testify that you had seen it. done; and to tie our case together and form the bridge to a persuasive closing argument. a final method of expert cross-examination is asking questions without any risk. i rel- member of numerous professional organizations and a guest � mechanism and causation of injuries this story and that we have to wait our turn under the rules. nonetheless, here you are on to use exhibits. "due care" testimony through the eyes and mouths of both in-house design engineers and � plaintiff's lawyer (opening promises) v. each/both of his opposing counsel's argumentative accusations made in his opening statement to the known � what else did you consider other than what we sent you (trea- � you never worked for any forklift manufacturer as an employee. cross-examination of plaintiff's liability expert witnesses (and at times damages expert defense was threefold: the basic truck design is safe and does not need an added electrical o reconstructing the accident point and other multi-media platforms in their everyday lives. however, i still want my key analysis o explain identify and tackle any biases they may have, and it helps to personalize your corpora- the typical products liability trial lasts two weeks. quite often the first day or two of the the united states and the u.s. virgin islands. he is an active 30 rare.27 100 96 machinery and untrained equipment operators jeopardize workplace safety. scheme requiring the end user to customize its industrial trucks to meet the needs of its phase); (3) define areas and detail facts consistent with your i have pursued this line of questioning in numerous trials. the various witnesses' responses include: presentation generally as follows: b56.1 standard without understanding the environment specifics, there could very well be my colleagues and i are proud to represent the people of "liftmaster" corpora- able to deliver a thorough argument to the jury. experts is speaking. such technology enables you to present your case to people who use power persuade. the opening statement is my opponent's first real opportunity to create � what is the basis for each opinion? 26 � you are not an expert in the safe operation of lift trucks or other industrial equip- greater than the sum of the parts. it is called justice. trucks that this product is unquestionably safe as designed for its intended uses. committee that initially drafted and periodically updates this standard includes representa- fdcc quarterly/winter 2009 finally, following is a chart of the general topics that i try to cover with my retained � the only mention of lift trucks in your resume is under the heading of "forensic iv. tinuously in warehouses throughout this country for more than twenty years? this claim and stands behind this product. fifth, i tell the jurors that the plaintiff's expert is under oath that he clearly knew he could be seriously injured if he reached into the * mast machinery; yet that is exactly what he did because he was in a hurry to meet amination. it is an effective way to convey to the jurors, before they hear the substantive posing experts? you will hear that as the defendant we have to prove nothing - plaintiff alone 21 common expert response: i wasn't asked to evaluate the entire product. fence in his opinions and what he has and has not done, considered, and assumed to arrive o testing ment being operated at the time of the accident should have contained a feature that the government standards that apply to the lift truck design are inadequate and your safe, practical industrial tool and tying its design and performance to a detailed recon- operation and function? 102 truck design should have included an extra electric circuit to lock out the mast controls if � a framing of the plaintiff's hypotheses, which i relate to the special verdict defending industrial equipment manufacturers in design defect cases we argued further that the employer shared causal responsibility by breaching his legal obligation to fatal flaws in plaintiff's case / each liability element, each hypothesis, inconsistencies, of what you consider to be my client's poor design choices. now tell you we designed "controllability" into this product � we will show you. told and paid you to criticize, correct? you ignored the many the opening statement is about creating impressions. for example, this past may18 113 � honors and awards my belief is that as counsel representing a manufacturer of industrial equipment, you i have been blessed throughout my career by mentors, colleagues, and adversaries who have taught me instructions, again tied into your theme. allow me to relate excerpted "agree" and "attack" as the forklift was driven down a steep incline and claimed that under those circumstances gineering and production teams. you will hear that this lift truck design enhances taken by your design team then to build a safe, useful industrial tool? properly trained operator, and tell us your reconstruction of those accidents, so stopped reading the report before the last section and abruptly shifted his focus to other themes of defense and which exhibits (and in what manner) you are going to show the jury review (all pleadings, all discovery)? product today, would you do anything differently?a: well of course. there have training program at all. before he ever stepped on this truck, mr. johnson should � putting aside your quarrel with our design choices, you will agree that this lift o design safety, utility, warnings, and instructions? obvious safety features and made no attempt whatsoever to tell � thetruckwent off the road due solely to lifttruck design/ george j. lavin jr. is nationally acclaimed as having pioneered an incredibly effective ap- case. on the first day of trial. o recreation v. illustration this theme is particularly important in cases in which the plaintiff's expert posits a newer design as the � sir, you are aware you are indicting literally every lift truck design on the market powered industrial trucks, part ii, ansi b56.1-1969.'" id. the author would like to acknowledge longtime colleague and friend timothy j. koval, general counsel to the facts. my client and i need to know today if you have any reservations at all some sort of backup boost systemadded to the basic, b56.1 � tell me about the people at your company who have been involved in this design � familiarity and experience with this product need to add a separate system to a practical mechanical design. defending industrial equipment manufacturers in design defect cases court and testify differently. is no dispute and there is no mast machinery contact hazard at all if the operator � in at least three cases in the past two years, a court has ruled that you could not jury will be prone to dislike your client. even in those forums where voir dire is conducted a very sophisticated control handle design. plaintiff's self-proclaimed "lift truck design moved, lifted, or stored by means of a forklift. lift trucks are routinely operated in areas and done for the case at the lawyer's request. try to stoke the jury's emotions, depict "david v. goliath," and depersonalize the corporate be for naught if you do not deliver with your own witnesses. indeed, many skillful opposing finally, i remind them of their commitment to wait to make a photographs adequate quality control and that as a result critical mast components failed five years later; to be prepared to back up whatever promises you make with credible evidence. 18 and supplied instructions are inadequate and should have spelled out this exact accident and throughout the article, i provide a basic overview of elements involved in trying a case cases where your "sister" product or a competitor's product is proffered as the safer design are a much the opening statement, though theoretically not an argument, is all about credibility � 100% of your professional time is spent working for hire for lawyers, in products an example of a "home run:" in an automotive crashworthiness case, an expert described the passive various types of industrial trucks are necessary ingredients in many workplaces; their for industrial equipment manufacturers. in part ii, i begin by discussing a basic perspective ignore the repetitive signal. (phase five) which, like solar eclipses, are both wondrous and your follow-up: so in other words sir, you, who claimed earlier to have been both fdcc quarterly/winter 2009 dresses closing argument; and finally, in part ix, i discuss the jurors' decision. time of this accident, are we not? a: yes. q: if you were designing that same himself. they do so based on the testimony of his paid expert witness who has never � you will agree - the b56.1 committee promulgates safety standards applicable are your blackberry is next to you as you read thisarticle. trial presentation programs such 31 nationwide, is dangerous, defective, and caused his client's injury. submitted by the author on behalf of the fdcc products liability section. additionally, i often alert the jurors in my opening statement that they will be hearing a tight deadline. in many instances, the allegations in a products liability lawsuit suggest that the equip- the plaintiff in an effort to recover the carrier's payments. manufacturers are an attractive � plaintiff's lawyer (opening promises) v. fact witnesses ii. added circuitry would have likewise required periodic maintenance. deposition as a corporate representative. you will in any event have to live with that deposi- your defense to accident causation is necessarily based on some combination of poor lift trucks in use, bearing the flag of various manufacturers, all sharing the same defending industrial equipment manufacturers in design defect cases safety in a product that is so essential to real world productivity. members of the panel, this case involves a very seriously injured party who in this case? we learned that at the time of mr. johnson's injury, he was untrained defending industrial equipment manufacturers in design defect cases our product as a vital part of the industrial system, a tool that enhances safety when used do tasks that otherwise would involve strenuous, risky manual labor. you also struction requirements for powered industrial trucks established in the `american national standard for that time, the defense attorney must present fact witness testimony, present the design and standards institute, inc.) approved asme sponsorship of such a standard." id. witnesses'testimony and exhibits. now is your chance to have qualified people give a clear � plaintiff's lawyer (opening promises) v. plaintiff the pressures of productivity combined with increasingly novice or reduced workforces them down an incline steeper than the one where the accident happened, induced a moving lift truck in a turnover event (despiteall warnings � in fact sir, in your retention agreement with plaintiff's lawyer, you have a clause typical expert response: well that wasn't my job, he (the plaintiff's lawyer) didn't � discuss all flaws in opposing expert's methodology and as a final example of opening statements, the following demonstrates my "out of the � every class 4/5 lift truck sold in 1994 should have had ix. iii. 3 ing to the elements of design, operation and maintenance" of lift trucks. id. at vii. today, the standard as summation and trial director, coupled with microsoft's power point, have become the particular application. they tend to adopt a "one size fits all" approach. we didn't call this party � like you, we have to be in this courtroom. questioning depends on if you have a great deal of prior testimony and other background essential design and performance criteria are specified by theamerican society of mechani- you will hear from qualified engineers who have spent their lives designing lift 13 set the pace with lengthy exams, repetitive fact witnesses, and physicians'deposition videos tested and inspected before it left our hands, we put together a tight video vignette of critical information about the expert. if you do not, the method is less likely to be successful. the ment) inconsistencies � plaintiff's lawyer (opening promises) and both experts v. � did you reach conclusions and form opinions in this case? knowledgeable team of in-house and independent engineers has evaluated every aspect of "designed out" by one of the products used in that system. lift trucks and other industrial ings of sympathy and emotion, and decide this case purely on the evidence you liability cases. � it just does not add up o have i missed any? tion who continue to devote their lives to the design and manufacture of industrial accidentally bumped the mast activation levers. i don't expect him to come into o causes of the accident and injuries? litvin & mchugh, supra note 20. testify at trial, because the methodology you utilized was not reliable, correct? who are selected because as human beings you will feel tremendous sympathy for and privately. each hypothesis tion testimony. as always, from day one, the decisions you make throughout the case both hired witness are blaming our product for a catastrophic injury to the plaintiff. you differ from those reported by the expert. decision until we have had a chance to tell our side of the case. had this case? osha's regulatory scheme represents its judgment concerning how best to assure the i had lost the battle in limine to exclude reference to the occurrence of unrelated accidents, which nesses we select to testify at trial as a company spokesperson may have already given a we all aspire to tell our corporate due care story through persons who are intimately for example, if a manufacturer were to add as a standard feature to every lift it sold a 97 dba automatic what they have just heard from plaintiff's lawyer. second, i emphasize the importance of seat belt and never under any circumstances reach into the mast machinery. that you are calling `similar incidents' really occurred. o what is its maximum rate of travel speed? see 29 c.f.r. � 1910.178 (l) (2000). id. you will hear that mr. johnson's employer was obligated by federal law to thor- training never took place. 108 that the truck can always be brought to a stop, steered, and thus controlled. we have of the raymond corp., greene, new york, as the inspiration for use of this technique. the courtroom?29 we already heard all of this from plaintiff's witnesses?"you would love to say, "your honor, � plaintiff's expert #2 v. himself (prior testimony) and conclusion very unfavorable to plaintiff's theory of the case. remarkably, my opponent � thebrakemastercylinder(determinedduringpost-accident � plaintiff's expert #1 v. himself (prior testimony) fdcc quarterly/winter 2009 o have you ever read its operator's manual? defending industrial equipment manufacturers in design defect cases dimensions and geometry of the truck, seat, controls, and mast assembly, took digitized part vi is about expert cross-examination; part vii covers trial acceleration; part viii ad- 114 your product, you cannot simply rest on burdens, rhetoric, and lawyering skills. you need sion of the trial schedule, to persons who have no previous connection with that process. all the evidence; 15 we have heard a lot of accusations and sanctimonious rhetoric from paid witnesses, now it the operator is not in his seat � a feature standard (for unrelated reasons) on electric models industrial equipment is a part of our lives. everything has at one time or another been plaintiff's counsel argued were relevant to design, notice, and continuing post-sale duty to warn issues. "i was not paid to do that;" "that's not my responsibility;" and "sir, i've just been hired to give testimony you need to carefully plan who will explain the factual and technical bases for your defense appendix a � closing boards equipment are not glamorous consumer goods, but are serious tools that must be operated id. 112 affecting interstate commerce[.]"3 tion: "my colleagues and i are proud to represent the people of lift corporation, whose men thus mandating that all industrial trucks used in every workplace the impression that this design, the product of many years of dedicated life's work the jury's initial impressions and let them know that you are serious, passionate, and com- is known that operators tend to substitute alarms for vigilance, and a pedestrian worker will, over time, o hours of usage has graduate and post-graduate degrees but has no experience with industrial equipment that his client accidentally fell into the truck's moving mast machinery. as a result, catastrophic event on a design about which he knows nothing other than what he has read in another recent case, we utilized a video presentation to communicate the message � tell the jurors, if you can, what you and your colleagues have done to enhance your product's development, tend to distort it. myopia is the plaintiff's greatest tool. opinions � do you have an opinion to a reasonable degree of engineering it is by federal law the employer's responsibil- travel controls - two totally separate systems. you will hear that immediately after the people who were working as you stood there, running your videotape, on 33 through which engineers drew on the wealth of both in-house and industry-wide experi- and relied on more than just words, and comparing the quality of our case and consequent injuries, the opening statement is of paramount importance. site occurred under the same conditions and for the same the primary opposing liability expert witness, has hopefully neutralized plaintiff's case. i your statement: sir, i have been listening to you blame my client's product for and to create the impression that plaintiff's counsel was deliberately misleading the jury. i role in the overall workplace system. that is, we have supplied a product that is both safe will not just tell you, but we will show you, with real men and women operators, ally read from a voluminous accident investigation report that had been compiled by both workers' compensation bar preventing civil claims while working behind the scenes with the hierarchy of design, foreseeability,15 "lavin method" to the cross of so-called experts attacking virtually all types of industrial � it is acceptable for an untrained operator to drive a lift by an attorney, in the courtroom, correct?" the substance of the answer is of no consequence. were at the site to alert the users of these "deadly" products, in use before your tion. design changes are driven by applicable codes, standards, industry usage and custom, 109 the product and people involved. throughout my practice i have utilized and tailored the as mentioned earlier, he also claimed that the manufacturer should have included a physical barrier each liability � presumptions/assumptions � inconsistencies there is debate among trial lawyers as to the significance of the opening statement. client did incorporate into the product?" in trial advocacy program, and he lectures frequently on trial defending industrial equipment manufacturers in design defect cases always trying to make products better. for example, a '57 chevy is coveted by anyone who an attractive "talking head" may have initial appeal to jurors, but if he or she is shown or perceived to 4 william j. ricci is national, regional, lead trial and appel- not have allowed his colleagues to demonstrate truck response in the face of an induced stall fdcc quarterly/winter 2009 conclusions of others (or even his own inconsistencies)24 � q: mr. rogers, we are dealing really with a truck that was ten years old at the from a maintenance related system failure to a design defect once he hired a lawyer: � list all the work that you have done in this case 35 that what they are doing together is of great importance, and bring their unique talents, in this article, i offer my reflections on the defense of industrial equipment manufacturers we are 95 at the time this product was sold, correct? this is the key battle between you and the professional witness who, for pay, is blaming a different matter. o some examples of these products are doors, toilets, toothpaste tubes, i returned to the factual theme later in the opening statement, contrasting a number of o product, scene inspections required by asme b56.1. often plaintiffs charge that your client should have equipped the sold by our company during the time frame when the subject truck left our possession.34 see, e.g., asme b56.1 �� 514, 424 (1969). industrial engineers and ansi and osha website links, to offer application-specific guidance. "sir, i know that in the several years that you have had this case, you have made no ef- 22 thus your ability to persuade. which this product is designed so long as he follows our instructions and that there was no fdcc quarterly/winter 2009 � what were your criteria for accepting this (and any) case? the side of the truck, he stood up in the compartment and deliberately reached into the mast the jury a balanced story. people of your corporation. here is an example of a statement to help bond in such a situa- design (no precise alternative design given) the design. mune employer or poor operation or conduct by the plaintiff himself. likewise, they focus that if you and your client truly believed you were responsible for this catastrophic occurrence, you would majesty of the jury system � what i call the "amalgam." depending on the particulars of his operation � thus leaving this decision to the individuals voir dire is your first chance to talk to and connect with the jury, to personalize the cor- most product liability trial lawyers believe that the manufacturer wins its case with its intended applications and market demands. finally, the company witnesses can explain 9 by the men and women of this company, used in countless warehouses and plants not be here trying this case. experiences, beliefs, and humanity to the task assigned to them, what results is an amalgam it is, why it is a vital and productive tool in the industrial system, and why it is a safe product or in other industrial applications.you have the opportunity to explain that the unsafe opera- thank them and the court on behalf of the people of my company, and emphasize the unique conclusions. explanation � both technical and historical � why the industrial product is designed the way all of us have experienced what i call "trial acceleration," namely that when your opening statements are about impressions. the lawyer's job is to advocate and � a restatement of my initial opening "capsule" statement, now corroborated by � you have never operated the lift truck involved in this accident, have you - even � it is acceptable for an unbelted operator to jump from a fdcc quarterly/winter 2009 turn to put on evidence and tell your side in the case finally arrives, the judge wants to get i marvel at forensic engineers' willingness to use legal, as opposed to engineering, terminology. thoughts about expert cross-examination as having a depth of understanding about the product, its history, and the people behind the let's review your video � i notice, sir, that in this video, there are a number of design principles, and possibly even your own test results (the "agree"23 labor to adopt "mandatory occupational safety and health standards applicable to businesses reflections on defending industrial exhibits � did you prepare any exhibits to show the jurors to help them proffers � design of this product technological innovation, and market demand. 103 � in such cases, you have held yourself for hire as an expert in a number of dif- through that products. to allow me to take this easel pad page, scan it in pdf form, send it to the scientific journal cal engineers ("asme") b56.1, safety standard for low lift and high lift trucks.5 shake as mr. and mrs. green. this is our only opportunity to ask you this vitally no accident reconstruction. instead, they based their entire case on a presumed engine stall claim that this truck, still in use at the plant this very minute, should have had a rear � instruction and warnings accompanying the product supposedly similar occurrences and our so-called contrived defense. i sat quietly listening � employment history fdcc quarterly/winter 2009 sions of real-world design.17 its potential consequences in great, even pictorial, detail. furthermore, plaintiffs necessarily most familiar with that environment.9 to the jury. the plaintiffs claimed that the subject lift truck's final assembly process lacked visors and personnel, and the plaintiff and his lawyer were with you, correct? time as you need, i look forward to hearing your learned witnesses and seeing every exhibit and hardware are available today for many of the trucks' systems. in our lab, has the burden of proving every element of his case. however, his attorney and employer, the product, product maintenance, applicable standards, codes and regulations, last year i tried a case involving a poorly trained operator of a sit-down counterbal- that onlyauthorized, trained personnel should operate this features and function. having lost a dispositive motion based on the expert's failure to proffer profession and putting a face to the company and the product. � did we put any financial constraints on what you felt you however, the real culprit was the total lack of maintenance during the truck's lifetime of the truth is that in many workplace environments, added safety features do not always a hired gun, adept at the two-dimensional courtroom easel pad rather than the three dimen- is released into production. safety criteria the plaintiff demanded was necessary is an excellent example of an "attack" replete with not-yet-ruled upon objections. these are precisely the reasons why i believe the american jury system works so well. mitted to what the people of your company are doing.14 with and without a load on the forks? ; and by pointing out what he has he argued, we should have had a barrier guard to prevent such "foreseeable" ac- � did you review the reports, depositions, or any testing by op- motor vehicle safety standards, yet who could credibly argue that when it was sold in 1957, fdcc quarterly/winter 2009 the what are the other facts we learned during the extensive discovery under oath career. on cross, he was confronted with the facts that both his wife and daughter drive cars � paid for by rather than a government mandate, and they ignore or try to preclude reference to the osha that's why his honor cautioned that opening statements are not evidence. and maintained in a particular workplace is the critical factor. for example, a warehouse boards or projections on a large screen and are titled, respectively, plaintiff's `hypotheses,' skilled operators. even the most seasoned adverse expert will concede that poorly maintained evidence to be. in my closing argument, i will ask you to render a complete defense � show me, sir, your correspondence with osha or ansi complaining that the stages of the manufacturing and assembly processes. in response to plaintiff's objections, even if the plaintiff's team were able to prove there was a stall � which they have presenting juries with a lifetime of important question. if you have any concerns, we can address them individually the tough question is how to present a persuasive snapshot of your client's due care criteria; i have not developed a full-blown blueprint. no one has offered to pay me to do 24 of these allegations, we brought the actual lift truck to the courthouse and had our in house i believe that in a trial involving a catastrophically injured worker who is blaming some of course, once you have made a commitment to the jury that you will stand behind made in your opening, all the points scored during cross of your opponents'witnesses, will proach to this most important phase of the trial. � would expect � 19. those involved in or at least standing behind actual design processes at the company level. belted and seated. in addition, we designed a computer-based model of the critical relative focused on those aspects of our design that plaintiff's lawyer from the outset, i emphasize flaws in the workplace system, none of which can be sometimes inconsistencies are found when the expert's tests are run with accurate data and the results opposing read a daily copy of the opposing expert's opinion? � real-life (non-litigation) design experience and consulta- 118 rigorous multi-shift outdoor use. to convey to the jury that our product was thoroughly for example, based on what he just told you, you likely have the impression indict the product design. please tell the members of this jury what you have customization that may diminish rather than enhance safety. not tried to reconstruct because obviously they cannot fit the facts to their tale � we � sir, you were at the work site where this accident happened more than two years expertise engineering, human factors, accident reconstruction, etc.) opening presentation and your case-in-chief. o determining the mechanism and cause of injuries machinery, bumped the mast control levers with his torso, and was severely injured when i believe that in the defense case, the focus must shift from you, the lawyer, to your are knowledgeable about, and preferably involved in, the involved product's development certainty regarding fdcc quarterly/winter 2009 to keep all parts inside the truck at all times. what was his excuse for driving into � what was your understanding of what the case was about? efficient manner. industrial equipment design is the result of years of experience and evolu- requesting the expert witness to demonstrate his alternative design that follows the needed to do to get to the truth in this case? was in fact working properly en route down the steep examination without risk. the time you answer the complaint and respond to the first round of written discovery, you as another example, two years ago i defended a case involving an industrial truck with ish opportunities elsewhere in the expert cross�examination to do this � you are both the after hearing his lawyer's opening, you likely have the impression that plaintiff the pieces fit so that the jury can draw only one conclusion: your product as designed and tions by osha as mandatory for lift trucks used in the workplace at the time this o field data 98 � what were you asked to do? and the safety of an industrial product cannot be divorced from the context in which it was he did so in violation of his training, our on-product warnings, and instructions designed controllability and safety into this product, and that if he had any concerns he would result in added safety. stated otherwise, adding so-called safety options across the board to defending industrial equipment manufacturers in design defect cases "stall" condition, measured the steer and brake efforts, and videotaped the results. 2 trial, you have blamed the product involved, and never its owner, operator, or tucked away in his file and tried to hide from the jury (the "attack"25 that there is an effective program in place for operator training. he must establish traffic flow independent expert witness. the topics are designed to contrast who he is with who the in this case, in this courtroom." my follow up may be a wink and a nod, "so you only do `safety' for pay, requiring plaintiff's counsel to absorb your costs and fees in the event your i remind the jurors of their promise not to allow sympathy to compound the tragedy, country, and they are claiming � as are you � that these accidents somehow you consider to be the most reputable, identify it as your alternative design opinion, ask for 27 ansi/itsdf b56.1-2005 (reaffirmation of asme b56.1-2004) 1 (2005). "in june 1946, the american 8 thoughts about "trial acceleration," "myopia," equipment manufacturers in furthermore, one or more of the wit- phase). finally, there demonstrated controllability in the following way: we took three sister trucks, drove when twelve men and women come together for the first time in the jury process, believe � plaintiff's lawyer v. himself (opening v. closing state- 20 know who and what the expert is and is not (the "periphery"21 � would not expect expert" found himself unable to answer the most basic technical questions about the handle need a thorough understanding of the product's intended applications and history in the � plaintiff's lawyers have shown you reports indicating that three other, completely plaintiff's case/ � not tested � unknown william j. ricci* 29 u.s.c. � 654(a). o how the accident happened? comment on � were you present to listen to the opposing expert/ did you with poster-boards, models, and mockups, as well as the involved and exemplar products. i'd like you to tell the jury � what's good about our design? 111 o please explain the function of the throttle control handle. truck) 29 u.s.c. � 651 et seq. (2000). or train its forklift operators. each have unique life experiences and talents. we are diverse. we are compassionate. examination of an expert who was called to criticize the design of a stand up "docker" lift user, for causing the plaintiff's injury. from the company's point of view, i have them describe o plant tours properly. third, i redefine and outline the issues the jury will have to decide and categori- poration and its product. i firmly believe that if you alienate the panel during voir dire, the industrial equipment � a perspective industrial truck standards development foundation, safety standard for low life and high lift trucks: i invariably rely on my company witnesses to explain the evolutionary design process on october 7, mr. james drove his stand up reach truck into a wall, and right 99 in the workplace. the stated purpose of the occupational safety and health act of 19701 courtroom norm and offer you the capability to enhance and complement your presentation product du jour as the dangerous byproduct of corporate indifference. his design alternative reality in a two-week trial: did not play this video for the jury, did you? tell me, sir, whose idea was it not - with the understanding that the first steps taken often affect the last words spoken. from investigation to need replacement due to poor maintenance) a very difficult decision. i am telling you now, so that you will be prepared � we when you went with the lawyer to inspect it? on-product instructions and warnings and was contrary to the requirements of federal law. untrained, and the employer (who is also the equipment owner) enjoys the protection of the eyes, that using all of these trucks pose a hazard of serious injury or death to about your ability to take that oath and to give my corporate client the same fair we need prove nothing � we will stand behind this design, and if i do my job, you 110 follow-up question or make a snide remark, i sat down, changed the subject, and made the we did these demonstrations during the course of the litigation � these were not pre- 23 corporation that designed it, and explain its great utility in a real-world warehouse or plant, witnesses) is your opportunity to deliver on your opening promise that this is not a case productivity and safety in the workplace. v. � what you would have to ignore/overlook/reject to accept of machinery, production lines, and vehicular and pedestrian traffic. controls for pedestrians and vehicles. he and his colleagues must ensure workers' safety in build these trucks here, in kansas. you will hear that before each product leaves done to investigate the happening of these other accidents, to make sure that the the development of any new product design. q: let's step back in time to when alternative that should have been used in earlier models. causing serious injuries, and have written down your criticisms thoroughly train its lift truck operators. federal occupational safety and healthadministration ("osha") laws regulate safety manufacturer offers as an application-specific option, not required by the asme b56.1 "all new powered industrial trucks acquired and used by an employer shall meet the design and con- 119 19 truck involved was properly maintained and being operated by an authorized, � plaintiff's expert #1 v. plaintiff's expert #2 whether certain optional or custom equipment ought to be added to the standard truck design, you why this product was safe and controllable, even under the presumed facts which remain o prepared report, gave deposition choices." in an ideal world the court would say, "you are absolutely right, take as much o evaluating the safety of the design opinions or methodology are challenged, correct? � in fact, your total experience in the company of a lift truck being used in a define the product and its safety through every phase of discovery, and at trial you make all today in this courtroom, he and his lawyer blame the product design. they now in my opinion, it is most important that you not lose this battle by overreaching, over- 97 introduction must not add to the tragedy by blaming the wrong party for what occurred. facts that had been established in discovery. i am convinced that by trying to create impres- defending industrial equipment manufacturers in design defect cases all industrial trucks does not always equate to increased safety in all environments. the lift vi tion and poor environmental conditions that led to this accident cannot be "designed out" and instructions to the contrary) faculty member of the temple university law school masters tactics and litigation management. he has been elected to and jury selection. for the remainder of that week, the plaintiff and his attorney typically to create misleading impressions into an opportunity to enhance your own credibility and 32 the "meter" on behalf of plaintiff's attorney? you mean to tell me you never prototype, pilot, and productions phases. they understand better than anyone the product's belt system for the front passenger as the most dangerous, irresponsible design he has ever seen in his that workplace on-road tire marks witnesses and exhibits. all the time spent cross-examining the various witnesses, including enclosure that would have prevented the plaintiff from ignoring our warnings and the wall? he told his boss there was a sudden total failure of both the brakes and � did you document these in a report, and did you explain your whose operator drove into a wall, tried to bail out immediately beforehand, and shifted blame sibility of) the millions of hours of problem-free use across the model line. your expert witnesses complement your presentation by placing their imprimatur on on this particular accident and look for others "like it," but ignore (and argue the inadmis- iteration ofasme b56.1,7 6 fortunately, the trial judge, an easygoing former trusts and estates attorney, let the two of us try our `thorough' and `fair' in your analysis in this case, in fact only developed. understand what you are about to tell them? design process. they lend huge credibility to your case because they are the people describing their life's tions, actual product hardware, exemplar hardware, � would not expect reasons as the subjectaccident � despite no reconstruction designed any lift truck, never tested or even seen the accident vehicle, and ignores verdict based on all the evidence. that will be a very tough job for those of you hopefully made only once � i try to remember what not to do poorly a second time! videotaped these trucks in operation in the real world, did you not? now, you i give the jurors my capsule restatement of the case that completely shifts the focus from where people work and walk. the warehouse is a common example of an environment in they can then pick and choose historical events, which rather than filling in the context of i am convinced that the jury panel needs to know from the outset your reasons for trying this case and � sir, you are aware, are you not, that our truck as designed has been in use con- founder of the lavin law firm, and my long-time mentor and friend, our moving and get the case to the jury. during voir dire you had the jurors promise to keep an charts, blueprints, schematics, flow-charts, diagrams, film, akin to that presented by plaintiff's lawyer to convey his client's life sentence of prison happenings of a trial: in part iv, i address voir dire; in part v, i discuss opening statements; a lift truck." plaintiffs devise many other arguments other than just the use of features above those by the court, you still have some opportunity to bond with those who are going to judge the configuration.6 is time for the jury to hear the truth from the qualified people who made the correct design defending industrial equipment manufacturers in design defect cases ferent products, have you not? will understand why we have chosen to defend this suit. testimony, that this witness is neither qualified nor unbiased. the success of this line of production tests. we used them to underscore our in-house engineer's testimony that he hazards of not doing so.35 can be a recipe for disaster. more often than not, the injured plaintiff is inexperienced and fdcc quarterly/winter 2009 director and the center of attention, and the key is not so much the substance of the response after using the expert cross-examination method of questioning without risk, you can phase); (2) pin down and we argued that this video, narrated in court by our company witness, is our "day-in-the-life" and the like. examples of "closing boards" i have used in a recent case can be found in ucts, or flawless tribunals. whether we are judges, lawyers, clients, witnesses, or jurors, we i try never to merely summarize what the jury has heard. rather, i offer the jury what i sumer product manufacturers in product liability, aviation, fdcc quarterly/winter 2009 taking panel members away from their jobs and families; you must communicate to the potential jurors � you never designed or participated in the design of a production industrial expert's � do you agree or disagree with opposing expert's analysis? feather pluckers, dice, manure spreaders, and, today, forklifts (i typically plaintiff's � every class 4/5 lift truck sold by every manufacturer in � would not expect all of the engineering analysis, testing, and due care exercised during each of the concept, manufacturer is forced to present years of design experience in two or three days. during the operators of each truck will be here to answer your questions. we won't just work environment. warehouse is the twenty minutes that you spent with plaintiff's lawyer inspect- method" is rooted in extensive preparation and analysis, as well as a deep understanding of unrelated, accidents happened in different warehouses in different parts of the and persuasion. it gives you the chance to teach the jury about your product, personalize the had no idea that he could be hurt by his actions, that the so-called "crush hazard" have no knowledge of the design, the jury will doubt the integrity of your case. open mind, and in your opening statement, you reminded them that there are two sides to oughly train him in safe lift truck operation and teach him to follow all on-product would you please list for me the many safety features that my being upfront with the jurors about the issues they will address during the trial helps them brought this safety concern to anyone's attention, other than on the easel pad in � would never expect to convey the perspective and position of the properly seated operator in the context circled question mark next to that particular item. 106 methodology � explain your methodology for at various phases in the argument, i often use "closing boards." these are large poster o what is its weight? ence to make an even better tool.32