Reptile Series Part 3 – Harness The Reptile And Use it To Your Advantage

In our most recent Reptile posts, we introduced a simple, proposed strategy for defense lawyers to deal with the Reptile, and introduced step 1 of the process. The following is step 2 of the proposed plan:

  1. HARNESS THE REPTILE AND USE IT TO YOUR ADVANTAGE

As set forth in our prior posts, the effectiveness of the reptile strategy lies in its ability to simplify the message and convey it to jurors in a form that they can understand and care about. The defense bar tends to overcomplicate everything. Typically, defense lawyers feel the need to provide way too much detail. If the simple message is effective, why not simplify the message? I would argue that the reptile strategy can be used by defense lawyers to simplify the message and to make jurors care about the defense’s case.

This proposed strategy works best in situations where the defendant has asserted an affirmative defense such as contributory negligence or misuse of a product. The reptile strategy can be used to establish safety rules that the plaintiff must follow, and the consequences to the plaintiff and the public of not following those safety rules. For example, the defense counsel can establish that warnings and instructions are provided not only to protect the plaintiff, but members of the general public who may be in the vicinity of the plaintiff while the product is being used.

Consider the following line of questioning:

  • Plaintiff, you would agree that manufacturers provide warnings and instructions pertaining to the proper and safe use of their products?
  • And you would agree that a user of a product must read and follow the warnings and instructions provided by the manufacturer?
  • And one of the reasons you must read and follow safety instructions is so that you will protect yourself?
  • And when you use this product, there could be members of the public in the vicinity? And another reason you would of course want to follow the safety information provided by the manufacturer is to avoid endangering members of the public who may be in the vicinity?
  • So you would agree with me that when the user of a product fails to read and follow safety instructions, he could endanger not only himself, but members of the public who may be in the vicinity?

The line of questioning would then proceed through getting the plaintiff to agree that owner’s manuals and warning stickers are the type of safety information about which he was questioned earlier, and which he agreed must be read and followed. This strategy not only simplifies the information provided by the manufacturer by grouping it all into the category of safety information, but it establishes for the jury that the instructions are there to protect the plaintiff and members of the general public. Therefore, when the plaintiff fails to follow the safety information provided by the manufacturer, he endangers not only himself but members of the general public. The result is that the message is simplified, the consequences of the plaintiff’s conduct are of interest to jurors, and the reptile is harnessed.

Please feel free to reach out directly with any thoughts on this strategy, or leave thoughts in the comments section.

Reptile Series Part 2 – Don’t Give Them The Soundbite

In the most recent of our Reptile posts, we began a Reptile series that proposes a two-step plan for harnessing the Reptile instead of fearing it.  The following explains step 1.

  1. DON’T GIVE THEM THE SOUND BITE

Jury consultants and psychologists who have studied the reptile have debunked the scientific premise behind it. So why is the reptile so effective? My theory is that the reason the Reptile is so effective is because it simplifies what the plaintiff is required to prove and includes consequences of the defendant’s conduct about which jurors actually care. So the first step in this proposed method for dealing with the reptile is don’t let them simplify it. The reptile practitioner relies on simplified sound bites that can later be used to concisely breakdown what the defendant did wrong and how they did it.

The plaintiff’s attorney will attempt to establish through your witnesses various safety rules. For example, the classic reptile safety rule is the “umbrella rule,” which states that a reasonable [insert category of defendant] must never needlessly endanger the public. If your witness agrees, the plaintiff’s attorney gets his sound bite. If your witness disagrees, he looks nefarious and is led down a rabbit hole that will result in nothing more than your witness looking bad. So the solution is, don’t give them the sound bite.

The lawyer should object to these attempts to establish the safety rule. The witness should absolutely never give a yes or no answer to the safety rule questions. The witness should re-frame the question, ask for clarification, and again, should never give a yes or no answer only to the question. The witness should be instructed that no matter how many times the plaintiff’s attorney asks the safety rule sound bite question, a yes or no question should absolutely never be given. There is nothing improper about this, and the witness is always allowed to explain his or her answer. The witness should be instructed to calmly do this, and to not become combative with the plaintiff’s attorney. The plaintiff’s attorney will undoubtedly become combative, complain about the witness’s failure to answer with a yes or no, and hopefully, ultimately, move on from the line of questioning without having acquired the sound bite sought after.

We would argue that without the sound bites to over simplify the concepts that the plaintiff needs to prove, the Reptile will fail. A reptilian practitioner without sound bite ammunition isn’t a reptile at all. Stay tuned for the next installment in which we explain step two of the proposed strategy.

Reptile Series, Part 1 – To Be Feared or Embraced by Defense Lawyers?

We have written numerous posts about the popular Reptile tactic, which has taken the plaintiff’s bar by storm. Practitioners of the reptile method boast alarming success. Meanwhile, the defense bar has been scrambling to identify the best way to deal with the reptile. Motions in limine are filed to keep out the reptile. Witnesses are prepared extensively on the sound bite questions on which the plaintiff’s attorney will attempt to obtain agreement. Defense lawyers instruct witnesses not to answer and move for protective orders to seek judicial intervention to keep out the Reptile. Is it possible that the defense bar is going about it all wrong? Is there really anything to fear? I would propose that instead of fearing the reptile, the defense bar should consider harnessing it and using it to its advantage. In that end, I would propose the following two-step strategy:

(1)       Don’t give them the sound bite;

(2)       Harness the Reptile and use it to your advantage.

These two parts will be explored in additional detail in upcoming posts.

South Carolina Product Liability Law Series – How are Negligence-Based Product Liability Claims Different?

Unlike strict liability and breach of warranty claims, any negligence based claims asserted by Plaintiffs will focus on the conduct of the defendant, as opposed to whether the defendant merely sold a defective product. Accordingly, arguments that the defendant merely acted as a middleman in the transaction are more effective (under the current state of South Carolina law) in defending any negligence based theories that are asserted. If the Plaintiff is unable to point to culpable conduct on the part of the defendant, the Plaintiff will be unable to prove a negligence based claim. This is particularly important because punitive damages are not available for strict liability and breach of warranty claims in South Carolina, while punitive damages are available in negligence based product liability claims (if the jury determines that a defendant’s conduct was willful, wanton, or reckless).

Accordingly, if the Plaintiff is unable to point to any wrongful acts or omissions on the part of the Defendant, the negligence claim will fail, as will the Plaintiff’s claim for punitive damages.

South Carolina Product Liability Series – Innocent Seller Defense

Many of our clients are not familiar with the law of product liability in South Carolina. Often, clients are named in a lawsuit simply because they were the “seller” of a defective product. Under the current state of the law, it is arguably acceptable for the Plaintiff to do so. To be liable under a strict liability or warranty theory in South Carolina, a defendant must only have been a “seller” of a product that was defective and unreasonably dangerous, and which caused the plaintiff’s alleged injuries.

In some states, the fact that a seller is merely a “pass through” seller or a “broker” may absolve the seller of liability under a product liability theory. Some states refer to this as an “innocent seller” defense, which is supported by evidence that the defendant never handled, manipulated, inspected or otherwise had any direct involvement with the product beyond merely facilitating the sale. However, South Carolina does not explicitly afford such protections yet, and the plaintiff can choose to sue the seller of an allegedly defective product even if the seller merely acted as a middle man in the transaction. Lawing v. Univar, USA, Inc., 2015 S.C. LEXIS 398, *2-3 (S.C. Dec. 2, 2015); Rife v. Hitachi Constr. Mach. Co., 363 S.C. 209, 216, 609 S.E.2d 565, 569, 2005 S.C. App. LEXIS 19, *9 (S.C. Ct. App. 2005) (a plaintiff “can recover all damages that were proximately caused by the defendant’s placing an unreasonably dangerous product into the stream of commerce.”) (emphasis added); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 540, 462 S.E.2d 321, 326, 1995 S.C. App. LEXIS 125, *14, CCH Prod. Liab. Rep. P14,387 (S.C. Ct. App. 1995) (In product liability cases in South Carolina, the focus “is on the condition of the product, without regard to the action of the seller or manufacturer.”) (emphasis added); Scott v. Fruehauf Corp., 302 S.C. 364, 371, 396 S.E.2d 354, 358, 1990 S.C. LEXIS 162, *9, CCH Prod. Liab. Rep. P12, 635 (S.C. 1990) (“Here, [distributor] and [lessee of the allegedly defective equipment] shared a common liability to the ultimate consumer, Scott, under our strict liability law.”).

In fact, a defendant can be liable as a seller “even though no sale has occurred in the literal sense.” Henderson v. Gould, Inc., 288 S.C. 261, 268, 341 S.E.2d 806, 810, 1986 S.C. App. LEXIS 301, *11 (S.C. Ct. App. 1986). A defendant that “simply brokered the transaction and never affirmatively passed ownership” of the product was potentially liable as a seller under a strict liability theory because the defendant “assisted in passing the gasoline can through the stream of commerce and received a monetary benefit for doing so.” Funchess v. Blitz U.S.A., Inc., 2010 U.S. Dist. LEXIS 121924, *9, 2010 WL 4780357 (D.S.C. Nov. 16, 2010).

On the other hand, there is support for the argument that the Court should take into consideration the degree of control the defendant exercised over the product when deciding whether the defendant can be liable as a seller under a strict liability theory. The South Carolina Supreme Court has held that because a pharmacy was “providing a service, rather than selling a product, it may not be held strictly liable for properly filling a prescription in accordance with a physician’s orders.” Madison v. Am. Home Prods. Corp., 358 S.C. 449, 456, 595 S.E.2d 493, 496, 2004 S.C. LEXIS 92, *11, CCH Prod. Liab. Rep. P16,980 (S.C. 2004). In reaching its decision, the Court considered that the South Carolina Pharmacy Practice Act “specifically states that ‘the practice of pharmacy shall center around the provision of pharmacy care services’” and that the statute defines “health care provider” to include pharmacists who provides health care services.  Id.

Defendants in subsequent cases have argued, based on Madison, that they were not liable as the seller of a product due to their limited involvement in the relevant transaction, and the results have been positive.  A defendant that was “compensated to install,  maintain and recalibrate the [a] machine. . . . [and was] compensated for training the [customer’s] employees” was not liable as the seller of the machine at issue, because it was merely an “after-purchase service provider having nothing to do with the actual sale of any product.” Martin v. A. Celli Nonwovens Spa, 2014 U.S. Dist. LEXIS 153557, *5-6 (D.S.C. Oct. 28, 2014).

We would argue that South Carolina’s appellate courts would adopt an innocent seller defense given the opportunity, and we hope that this opportunity will come sooner rather than later.

Are Litigation Experts Entitled To Prepayment for Depositions?

prepayment

We are seeing an increasing number of opposing experts requesting advance payment of an estimated amount of fees/expenses in exchange for the expert agreeing to appear for the deposition as scheduled. As lawyers, bloggers, and lawyer bloggers, we take issue with this approach for a number of reasons. First and foremost, how can anyone possibly know how long a deposition is going to take before you take it? What if the expert agrees out of the gate with your position and the deposition takes five minutes? What if the expert digs in and offers only evasive testimony, and the deposition takes twice as long as it should? Also, how can you estimate the expert’s actual travel time to/from the deposition without knowing traffic and weather conditions, et cetera?  Basically, there does not appear to be any reasonable way to estimate fees and expenses until the deposition has concluded and the expert has arrived back home from the deposition. But we have nonetheless searched for support for the argument that an expert is entitled to prepayment, and we are unable to find any authority on the issue.

While most state rules follow the federal rules and require the party deposing the expert to pay the expert’s reasonable hourly rate and expenses for the deposition, we are unable to find any requirement that the deposing party pay in advance, and the case law we have found suggests that deposing parties are not required to do so.  See, e.g., Regions Bank v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 U.S. Dist. LEXIS 108820, at *6 (M.D. Fla. Aug. 18, 2015) (finding that “Fed. R. Civ. P. 26(b)(4)(E) does not require payment in advance of the deposition of the expert.”).

If anyone has any support for the proposition that experts are entitled to prepayment, we would appreciate you passing it along, but until then, we will continue to refuse to prepay for expert depositions, and we will take the position that an expert must be present and prepared to give the deposition as noticed without prepayment.

South Carolina Product Liability Series – Comparative Negligence

In South Carolina, when the plaintiff brings a negligence-based product liability claim, he or she brings comparative negligence into the picture because South Carolina is a modified comparative negligence state. For any negligence based claims, the jury will be required to apportion fault between the plaintiffs and any defendants in the case. If a Plaintiff is found to be more than 50 percent at fault, he or she will be barred from recovery. If a Plaintiff is found to be 50 percent or less at fault, then the Plaintiff’’s recovery will be reduced in proportion to his percentage of fault. If the jury hypothetically awards a Plaintiff $100,000.00 on a negligence based claim, and the Plaintiff is found to be 30 percent at fault, then the Plaintiff’s recovery will be reduced by 30 percent, resulting in a verdict for $70,000.00. At the same time, it should be noted that under current law in South Carolina, comparative negligence is probably not a defense to strict liability or breach of warranty claims.

Finally, any potential liability on the part of the product liability defendant may be reduced/apportioned pursuant to the South Carolina Contribution Among Tortfeasors Act (S.C. Code Ann. § 15-38-10, et. seq.). As a result of revisions to the Act in 2005, South Carolina is now a modified joint and several liability state. In South Carolina, if a defendant’s conduct is determined to constitute 50 percent or more of the total fault for the Plaintiff’s damages, then the defendant is jointly and severally liable for the full verdict returned in the case. When the defendant’s conduct constitutes 50 percent or more of the total fault, the defendant is not entitled to have its liability reduced or apportioned under the Act. However, if a defendant’s conduct is determined to be less than 50 percent of the total fault, then the defendant may only be liable for its proportionate share of any verdict that is returned. In the hypothetical provided above, in which the jury awards $100,000.00 and finds that the Plaintiff is 30 percent at fault, if the defendant is found to be 10 percent at fault, the defendant may only be responsible for paying $7,000.00. Significantly, the defendant’s ability to potentially have its liability, if any, “apportioned” or reduced pursuant to the Act clearly would exist as to any negligence based claims asserted by the Plaintiffs. South Carolina courts have not yet decided whether the theory of modified joint and several liability (i.e. apportionment of fault) will apply to strict liability and breach of warranty based claims. Other states that have considered this issue are split, with some states concluding that liability should be apportioned for strict liability and breach of warranty claims and other states concluding that pure joint and several liability (with no apportionment or reduction) should apply to those claims.

The Latest Twist In The Ecuadorian Rainforest Pollution Litigation – Chevron Is Victorious In $9.5 Billion Oil Pollution Appeal

Reportedly, a three-judge panel of the Second Circuit, “unanimously affirmed a trial court’s determination that, in 2011, the lead attorney for some 30,000 Ecuadorians had won a $9.5 billion judgment against Chevron by means of bribery, coercion, and fraud.” For those who need background on the underlying case, Steven Dozinger, the lawyer at issue, obtained a $19 billion verdict in Ecuador in 2011 that “was supposed to compensate residents of the Amazon rainforest in eastern Ecuador for contamination allegedly left behind by Texaco, which drilled for oil in the region from 1964 to 1992. (Chevron acquired Texaco in 2001.).” The Ecuadorian judgment was then reduced in 2013 from $19 billion by the Ecuadorian Supreme Court. Apparently, Chevron owns no property in Ecuador, so there was no mechanism by which the judgment could be enforced in Ecuador, so the Plaintiffs attempted to enforce the judgment in Canada, and in September of 2015, “the highest court in Canada . . . ruled that villagers can move forward with an effort to seize assets tied to the oil company.”

Meanwhile, Chevron filed suit in federal court in New York, and Judge Lewis Kaplan concluded that “Donziger had won the judgment against Chevron in Lago Agrio, Ecuador, Kaplan . . . , by engaging in extortion, wire fraud, obstruction of justice, witness tampering, money laundering, bribery, and Foreign Corrupt Practices Act violations in a pattern of conduct that also amounted to a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).”  Interestingly, the decision did not address the merits of the underlying pollution case; it simply said that the methods by which Dozinger acquired the judgment were improper and that no one could enforce the judgment in the U.S. or profit from it in the United States. The recent Second Circuit opinion affirmed Judge Kaplan.

This is an interesting development in a lengthy saga that has involved PR campaigns by both Chevron and Dozinger. Chevron also filed suit in Gibraltar against Amazonia Recovery Ltd, the company set up by Plaintiffs’ attorneys to collect the Ecuadorian judgment and obtained a $28 million verdict. According to Dozinger, “the villagers have filed standard collection actions against Chevron in jurisdictions where the company maintains substantial assets (thus far, Canada, Brazil, and Argentina).” This is an interesting, monstrous piece of litigation that has cost everyone involved an extraordinary amount of money. Judging by the appearances listing on the U.S. District Court opinion, this case has kept plenty of lawyers on both sides busy for a long time. It will be interesting to see what happens next.

California Federal Magistrate Stresses Proportionality Requirement Under New Federal Rule 26

As we have previously reported here and here, the Federal Rules of Civil Procedure have recently changed. One of the major changes to the rules is the new definition of scope of discovery under Rule 26:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any  party’s claim or defense and proportional to the  needs of the case, considering the importance of  the issues at stake in the action, the amount in controversy, the parties’ relative access to  relevant information, the parties’ resources, the  importance of the discovery in resolving the  issues, and whether the burden or expense of the  proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

In her June 9, 2016 order in the FTC v. DirecTV, Inc., U.S. Magistrate Judge Maria Elena-James stressed the importance of the new proportionality requirement. The following is a summary of the issue in dispute. DirecTV asked for all consumer complaints received by the FTC pertaining to ten different companies, and the FTC challenged the scope of the request. The parties were ordered to meet and confer regarding the scope of the request. Following negotiations, DirecTV limited its request to three of its competitors, but it still requested all complaints. A query run by the FTC showed that “all complaints” pertaining to the three competitors included over 200,000 complaints, and the FTC again pushed back on the scope of the request and proposed that random sampling of the complaints be conducted to determine whether they are relevant. Judge Elena-James concluded as follows:

Having reviewed the parties’ positions, the Court finds the FTC’s sampling proposal more closely comports with Rule 26’s demand for proportionality. Rule 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Under Rule 26, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee notes (2015 amendments). Thus, there is “a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.” Salazar v. McDonald’s Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee notes for proposition that parties share a “collective responsibility” to consider proportionality and requiring that “[b]oth parties . . . tailor their efforts to the needs of th[e] case”).

She ultimately agreed with the FTC that sampling was appropriate as “the relevance of these materials is largely speculative and a random sample therefore gives DIRECTV what it seeks through these Requests for Production while rendering the FTC’s burden reasonably proportional to the materials’ purported evidentiary value.”

Should Judges Allow Juries To Hear A Windfall May Be Bad For A Plaintiff?

Windfall Plaintiff

Around times of big lottery jackpots, it is widely reported that bad things often happen to people who win the lottery or receive a large financial windfall, and the statistics are staggering:

Indeed, 44% of those who have ever won large lottery prizes were broke within five years, according to a 2015 Camelot Group study. The Certified Financial Planner Board of Standards says nearly a third declared bankruptcy—meaning they were worse off than before they became rich. Other studies show that lottery winners frequently become estranged from family and friends, and incur a greater incidence of depression, drug and alcohol abuse, divorce, and suicide than the average American.

Some reports even say that “70 percent of people who suddenly receive a windfall of cash will lose it within a few years.” There are horror stories like Abraham Shakespeare’s:

Abraham Shakespeare was murdered in 2009 after he won a $30 million lotto jackpot. The 47-year-old Florida man was shot twice in the chest and then buried under a slab of concrete in a backyard, ABC News reported. DeeDee Moore, who authorities say befriended him after his lotto win, was found guilty of first degree murder in 2012. His brother, Robert Brown, told the BBC that Shakespeare always said he regretted winning the lottery. ‘I’d have been better off broke.’ He said that to me all the time,’ Brown said.

The odds suggest that it is not only possible that a windfall will leave someone worse off than they were before the windfall, but it is likely. The question we have is, if a plaintiff asks the jury for a large noneconomic damages award, for example, should the defendant be able to put on evidence of the potential harm that such an award could do to the Plaintiff? Should expert testimony on the subject be permitted? We don’t have the answers, but it seems like a topic worth exploring.