Trial Magazine

Trial lawyers have always been at the forefront of making products safer: cars, tires, toys, cribs, household products, farm equipment, pesticides, drugs, medical devices, and many more. We are often the last line of defense for injured consumers when existing laws and regulations are inadequate.

History has shown that corporations tend to hide the truth in their quest to evade accountability. AAJ has documented this pattern of obfuscation in its research reports—all available to you and the public at https://bit.ly/ResearchReportTrial.

But the defense’s evade-accountability mindset does not work in the end. Facts, truth, and meticulous trial advocacy skills continue to prevail to catalyze change.

For example, earlier this year, Johnson & Johnson (J&J) said it would discontinue talc-based baby powder globally in 2023. This decision came three years after the company halted talc-based powder sales in North America.

There is no doubt that thousands of injured people with ovarian cancer and mesothelioma traced to talc-based personal care products, along with their lawyers, helped spur this change. Because of these lawsuits, J&J was compelled to share internal company documents that revealed what it knew about asbestos in its products for nearly 30 years.

Corporations continue to bet on evasion as the path forward. Faced with past and current claims from injured consumers, corporations are now abusing bankruptcy laws to evade accountability. J&J formed the subsidiary LTL Management LLC in late 2021, shifting its legal liabilities to LTL. Days later, LTL filed for bankruptcy. In early 2022, a bankruptcy court approved this tactic—which is being appealed—halting 40,000 pending talc cases.

Similarly, 3M’s earplug subsidiary, Aearo Technologies LLC, filed for bankruptcy in July. 3M is facing hundreds of thousands of claims that its earplugs damaged servicemembers’ hearing and caused other health problems. An Indiana bankruptcy court denied 3M’s request for a stay in the MDL.

This is the new face of tort “reform” and an existential threat to our clients’ rights to pursue justice. AAJ has formed a Bankruptcy Tort Litigation Group and is leading efforts to oppose this corporate tactic before it becomes ubiquitous.

AAJ has many resources for handling products cases. In this month’s Trial, read about overcoming protective orders and keeping court records unsealed (p. 18); identifying defective seatbacks (p. 30); exploding e-cigarette batteries (p. 40); and negligent trampoline parks (p. 50).

And the robust Products Liability Section and various Litigation Groups for specific products, devices, and drugs allow members to communicate and exchange information and resources with others who take on products cases. You can find Sections and Litigation Groups on the AAJ website under the “Community” tab. Products Liability Section members also receive the Products Liability Law Reporter, featuring verdicts, settlements, and recent court decisions.

Regardless of whether you handle products cases or focus on another area, if you are looking to rev up your trial advocacy skills, consider attending AAJ Education’s Advanced Depositions College from Jan. 13–16, 2023, in New Orleans. For more information, see www.justice.org/education.

AAJ also is expanding the conversation on product safety. Before the 2022 Annual Convention, AAJ staff met with Jason Levine, executive director of the Consumer Product Safety Commission (CPSC), to explore how our members can have a mutual relationship with the commission to better share information about dangerous products. Look for more information about the CPSC via the Products Liability Section and other related groups.

I am grateful to each of you who are working to hold product manufacturers accountable. And just as crucial is supporting the battles behind the scenes—in Congress, in state houses across the country, and in regulatory agencies—through your engagement with AAJ and state and local trial lawyer organizations. Together, we can continue to make the world a safer place.

Tad Thomas is the founder and the managing partner of Thomas Law Offices in Louisville, Ky., and can be reached at tad.thomas@justice.org.