Trial Magazine

Our job as trial lawyers is to help people. That help takes many forms, but at the end of the day we want to know who or what was responsible for our client’s injuries or death. We search for the truth about how a product was designed or manufactured and whether there were clues about its lethality or defects that were ignored.

If we are successful, it can make a world of difference for a surviving spouse, a child’s future, or the ongoing health needs of an injured client. Sometimes, a case can catalyze change: a defendant agrees to install a protective roll bar on its tractors; a lawmaker introduces legislation to improve window safety; tragic tip-overs or entrapments lead to furniture recalls. If you’ve worked on a products liability case, you know these cases are especially hard to prove and are expert-intensive. They involve complex legal issues plus scientific and engineering principles.

While products cases can be daunting, AAJ and its members are powerful resources. In this month’s Trial, hear from fellow members on handling Daubert issues at the summary judgment stage (p. 20); identifying the proper defendant (p. 26); and the trend of federal courts making “Erie guesses” when interpreting state law (p. 34).

When I’m exploring a case, it makes a difference whether I’ve previously handled a case against the same manufacturer and know the possible roadblocks. If I haven’t encountered that manufacturer, I turn to AAJ’s list servers—a tremendous asset to get answers and perspectives from trial lawyers across the country. I receive critical information, am better informed, and can increase the odds for my client when I cast a wide net with my questions.

If you are not part of a member group, I encourage you to check out AAJ’s Sections and Litigation Groups, which are enormously helpful and a great way to establish connections with other trial lawyers handling similar cases. There are 19 sections, including the Products Liability Section (members receive the Products Liability Law Reporter, which highlights verdicts and settlements) and the newly created Technology and Science Section.

AAJ also has more than 100 Litigation Groups that cover a wide array of specific practice areas such as nursing homes, wage and hour, trucking, insulin pumps, and more. New groups are being added annually, with groups for surgical staplers, Paragard, pressure cookers, and infant formula just created in the last year.

The history of manufacturing is scarred by decades of preventable injuries and deaths that were not curtailed until a client and trial lawyer fought for accountability, prompting change.

Recently, seller accountability has attracted increased attention as consumers made more purchases online during the pandemic. Section 230 of the Communications Decency Act of 1996 immunizes websites from legal liability for third-party content—and internet retailers have used this to try to avoid liability when consumers are injured by third-party products. AAJ supports elimination of §230 immunity, which would have broader implications beyond products liability.

AAJ is always there to support us and our clients, including in the lobbying and rulemaking arenas. For example, AAJ opposed legislation that would require plaintiffs to establish liability, including causation, before discovery in multidistrict litigation. AAJ also has created a member working group for two proposed amendments to Federal Rule of Evidence 702, which concerns expert witness testimony. The amendments would add a preponderance of the evidence standard directly to the rule and rewrite a subpart on expert opinions to address “overstatement” by experts. We encourage members to review these rules proposals and submit comments to educate the committee about your plaintiff-side practice. (Comments are due by Feb. 16, 2022; for details, visit https://tinyurl.com/4c8f6ft2.)

These are all areas that AAJ and its members are watching to make sure the injured have a voice. And in the meantime, we can all harness the best resources that the association has to offer to help our clients fight corporations that place dangerous products on the market.

Navan Ward Jr. is a principal at Beasley Allen Crow Methvin Portis & Miles in Atlanta and can be reached at navan.ward@justice.org.