Category Archives: Product Liability

Personal Injury, Product Liability, Scott Brooksby, Super Lawyers

Scott Brooksby recognized as a Super Lawyer for product liability litigation

Scott Brooksby has been recognized as an Oregon Super Lawyer for product liability defense litigation.

The objective of Super Lawyers’ patented multiphase selection process is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Super Lawyers selects attorneys via peer nominations and evaluations, which are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers Magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers.

Scott Brooksby
Top Oregon product liability lawyer
Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Litigation, Product Liability, Scott Brooksby

Scott Brooksby Recognized by Best Lawyers in America©

Scott Brooksby has been recognized by Best Lawyers in America© for product liability litigation.

Best Lawyers® compiles its lists of outstanding attorneys by conducting peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current edition of The Best Lawyers in America© 2018 is based on millions of detailed evaluations of lawyers by other lawyers.

The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

Oregon product liability lawyer
Scott Brooksby, one of the Best Lawyers in America
Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Litigation, Product Liability, Scott Brooksby

Scott Brooksby to speak on pilot accidents and to serve on the Oregon Aviation Industries Board of Directors

The Oregon Aviation Industries Board of Directors voted unanimously on August 26, 2016, to approve Scott Brooksby’s nomination to serve on the Oregon Aviation Industries Board of Directors.

Scott’s aviation law knowledge includes pilot mental conditions that may lead to accidents.  He will be speaking on this subject at the Columbia Aviation Association, www.caapilots.com, on Thursday September 1, 2016, with a focus on Germanwings Flight 9525 that impacted a mountain in March 2015.

Scott’s many years of experience in aviation litigation, his industry connections and his wide range of talents will be a huge asset to ORAVI.

ORAVI is comprised of 400+ companies in aviation and related businesses.  These include aircraft and part manufacturers, flying services, heavy lift helicopter services, unmanned aerial vehicle systems, airports, maintenance and suppliers to these industries.

The Columbia Aviation Association, where Scott is speaking on September 1,  is located at the Aurora State, Oregon Airport (UAO).  CAA was founded in 1949 as a private organization devoted to flying.  After being located at the Portland International Airport (PDX) for forty five years, members completed the beautiful new Aurora clubhouse in 1996.  Membership is by invitation only and requirements include possession of a private pilots certificate.  Most of the club’s 260 members have advanced ratings and are aircraft owners who fly on a regular basis for business and pleasure.

Pilot mental fitness is a critical aspect of aviation safety.  As Jet Blue Founder and former CEO David Neeleman recently suggested, “nobody ever thought about having to protect the passengers from the pilots”.  In the wake of the tragic circumstances surrounding Germanwings 9525 and MH370, the FAA chartered the Pilot Mental Fitness Aviation Rulemaking Committee, which released its report in November, 2015.  But mental health issues are complex, and no system of detection, voluntary, or outside reporting is perfect.  Scott will discuss the circumstances in Germanwings 9525 and other notable incidents, which have spiked in the last two decades.  Scott will discuss the findings and recommendations in the FAA ARC final report.  He will also explore the issues surrounding the current system of pilot mental health from the perspective of the flying public, the airlines, the regulators, and pilots.
American Bar Association, Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Casualty, Catastrophic Injury, Commercial Litigation, Negligence, Personal jurisdiction, Product Liability, Scott Brooksby

The MMTJA and the Battle to Establish General Personal Jurisdiction in Foreign Aviation Disasters

Scott Brooksby wrote the following article, which was published in the American Bar Association’s Mass Torts Summer newsletter:

The MMTJA and the Battle to Establish General Personal Jurisdiction in Foreign Aviation Disasters

By Scott Brooksby – June 21, 2016

Foreign aviation disasters very often result in litigation in the United States. Many cases arising from foreign crashes brought by foreign plaintiffs against foreign defendants are dismissed based on forum non conveniens. However, a recent case decided under the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), 28 U.S.C. § 1369, illustrates the exacting standard for establishing general personal jurisdiction in foreign aviation disasters when plaintiffs seek to litigate in the United States, even when national service of process is permitted. Siswanto v. Airbus S.A.S., 2015 WL 9489952 (N.D. Ill. Dec. 30, 2015).

The Montreal Convention
Before considering the MMTJA in the context of an aviation disaster, it is important to recall that claims against air carriers, in contrast to claims against manufacturers, are governed by the Montreal Convention. The Montreal Convention of 1999 was ratified by the United States in September 2003 and went into effect in November 2003. It limits the forums in which foreign plaintiffs can file lawsuits against air carriers. The Montreal Convention is a successor to the Warsaw Convention of 1929 and, in addition to important new provisions, consolidates and clarifies prior provisions of the Warsaw Convention. Convention for the Unification of Certain Rules for International Carriage by Air, opened for Signature at Montreal on 28 May 1999, ICAO Doc. No. 4698 [hereinafter Montreal Convention].

The Montreal Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.” Montreal Convention, supra, art. 1 § 1. When the Montreal Convention governs, damages provided under the convention are the only remedy available to foreign plaintiffs against a carrier. In El Al Israel Airlines v. Tseng, 525 U.S. 155 (1999), the Court held that personal injury claims arising from aircraft operations within the scope of the convention are not allowed unless permitted under the terms of the convention. Id. at 176. In light of the holding in Tseng, other federal courts have held that the damages available under the convention are the sole cause of action. See, e.g., Ugaz v. Am. Airlines, 576 F. Supp. 2d 1354 (S.D. Fla. 2008).

For purposes of forum non conveniens motions, Article 33 of the Montreal Convention provides that there are five forums in which a plaintiff may bring claims against a carrier:

1. the domicile of the carrier;

2. the principal place of business of the carrier;

3. the place where the airline ticket was purchased;

4. the place of destination; and,

5. in personal injury cases, the principal and permanent place of residence of the plaintiff

The so-called fifth jurisdiction, the plaintiff’s principal and permanent place of residence, was added by the Montreal Convention and expanded on the Warsaw Convention provisions governing proper forums. Under the Montreal Convention, the principal and permanent residence is the “one fixed and permanent abode of the passenger at the time of the accident.” Montreal Convention, supra, art. 33 § 3(b).

Under the fifth jurisdiction principle, a plaintiff may bring the lawsuit for personal injuries in the forum in which he or she has his or her principal and permanent place of residence, and to or from which the carrier operates flights, and in which the carrier leases or owns commercial premises by itself or by another carrier with which it has a commercial agreement. A “commercial agreement” means an agreement made between carriers and related to joint service of passengers by air. Montreal Convention, supra, art. 33 § 3(a).

The MMTJA and Foreign Aviation Disasters
Although the Warsaw and Montreal Conventions addressed many aspect of air crash litigation, they did not specifically address U.S. federal court handling of mass disaster litigation, and they addressed only aviation-related cases against carriers. In 2002, the MMTJA was enacted to create greater efficiency in disaster cases in the federal system. The MMTJA grants district courts original jurisdiction where minimal jurisdictional requirements are met and where the cases arise out of a “single accident, where at least 75 natural persons have died in the accident at a discrete location[.]” 28 U.S.C. § 1369(a). The permissible lawsuits include both wrongful death and personal injury.

The first case arising under the MMTJA was the Station nightclub fire in West Warwick, Rhode Island, on November 20, 2003, in which 100 people were killed and 230 injured. Lawsuits were filed throughout New England in state and federal courts. Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004).

The MMTJA widely broadens federal jurisdiction in mass disaster cases and provides that the district courts will have original jurisdiction wher

(1) a defendant resides in a State and a substantial part of the accident took place in another State or other location, regardless of whether that defendant is also a resident of the State where a substantial part of the accident took place;

(2) any two defendants reside in different States, regardless of whether such defendants are also residents of the same State or States; or

(3) substantial parts of the accident took place in different States.

28 U.S.C. § 1369(a)(1)–(3).

Under the MMTJA, “minimal diversity” exists between adverse parties if any party is a citizen of a state and any adverse party is a citizen of another state or a foreign state. Corporations are deemed to be a citizen of any state in which it is incorporated, or has its principal place of business, and is deemed to be a resident of any state in which it is licensed to do business or is doing business. 28 U.S.C. § 1369(c)(1)–(2). The district courts must abstain from hearing any action in which the “substantial majority” of all plaintiffs are citizens of a single state in which the primary defendants are also citizens, and from hearing any claims that are governed primarily by state law. 28 U.S.C. § 1369 (b)(1)–(2). Therefore, the MMTJA provisions providing for removal are much broader than the diversity jurisdiction requirements under 28 U.S.C. § 1332.

Siswanto v. Airbus S.A.S., 2015 WL 9489952 (N.D. Ill. Dec. 30, 2015), arose from the December 28, 2014, crash of Air Asia Flight No. 8501, an Airbus A320-216 flying from Indonesia to Singapore. During flight, a rudder system malfunctioned. Subsequent miscommunication between the pilots and a crew member’s removal of a circuit breaker disengaged the autopilot and caused the plane to roll and enter a prolonged stall before crashing into the Java Sea. All 155 passengers and 7 crewmembers were killed. The investigation was handled by the Indonesia National Transportation Safety Committee, which released its final report on December 1, 2015. Komite Nasional Keselamatan Transportasi, Republic of Indonesia, Final Aircraft Accident Investigative Report (2015).

The heirs and personal representatives of the deceased brought product liability and negligence claims against several defendants, including Airbus. Airbus moved to dismiss for lack of minimum contacts under the Fifth Amendment Due Process Clause. The plaintiffs proceeded only under a theory of general personal jurisdiction arising from Airbus’s extensive contacts with the United States as a whole.

The court reasoned that because the case was brought under the MMTJA, Federal Rule of Civil Procedure 4(k)(l)(C) and the MMTJA enabled the court to consider Airbus’s contacts with the United States as a whole, and not just with the state of Illinois. However, nothing in the statutes overrode Airbus’s constitutional due process protections governing the court’s exercise of personal jurisdiction. Siswanto, 2015 WL 9489952, at *1.

Early in its jurisdictional analysis, the court noted that despite the geographic expansion of service and, in turn, the initial scope of personal jurisdiction, Rule 4(k)(1)(C) and section 1697 do not override the controlling constitutional limitations of the court’s exercise of general or specific personal jurisdiction imposed by the Fifth Amendment’s Due Process Clause. Siswanto, 2015 WL 9489952, at *2 (citing KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 723, 730–31 (7th Cir. 2013)). The court noted that the traditional “minimum contacts” test from International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945),still governs even when the basis of personal jurisdiction involves a statute providing for nationwide service of process. Siswanto, 2015 WL 9489952, at *2.

Judge Blakey reasoned that when defendants are domiciled in the United States, the due process analysis under a nationwide service of process is straightforward. Because domestic companies and individuals “almost by definition” have minimum contacts with the United States, there may be general personal jurisdiction in any federal court in the country.Id. at *3.

The court noted that because Airbus is not a domestic company, the plaintiffs must show its contacts with the United States are sufficient to support either general or specific jurisdiction, and that general personal jurisdiction required “continuous and systematic general business contacts” such that Airbus is “essentially at home in the forum,” here, the United States as a whole, and not just the state of Illinois. Id. at *4 (citing Abelesz v. OTP Bank, 692 F.3d 638, 654, 656 (7th Cir. 2012)). The court concluded that, under Abelesz, the court’s inquiry is not whether Airbus’s contacts with the forum are simply “extensive in the aggregate.” Id. at *3 (internal citations omitted).

There was no dispute that Airbus was incorporated and had its principal place of business in France. For at least the five previous years, Airbus had not maintained any offices or employees or owned or rented property in the United States. All manufacturing on the aircraft occurred in Europe, and none of Airbus’s subsidiaries in the United States undertook this work. The A320-216 had been issued a type certificate by the European Safety Agency but not by the Federal Aviation Administration (FAA). The aircraft was sold to Air Asia Berhad, a Malaysian airline carrier that did not operate in the United States, and the aircraft had never been flown in the United States. Id. at *2.

The plaintiffs argued that four categories of contacts between Airbus and the United States warranted the court’s exercise of general personal jurisdiction. First, the plaintiffs pointed to aircraft sales in the United States, which amounted to 811 aircraft, or 6.73 percent of Airbus’s sales. The court rejected this argument, ruling that none of the sales gave rise to the crash, and noted that the Supreme Court has instructed that imputing general personal jurisdiction from a defendant’s sales in the forum, even if sizable, would stretch general personal jurisdiction beyond its reach. Id. at *4 (citing Daimler AG v. Bauman, 134 S. Ct. 746, 760–62 (2014)).

Second, the plaintiffs argued that Airbus spends 42 percent of its aircraft-related procurement in the United States. The court also rejected this argument, stating that mere purchases, “even if occurring at regular intervals,” do not establish general personal jurisdiction when the underlying cause of action is not related to those purchases. Id. (citingHelicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418 (1984)); accordDaimler, 134 S. Ct. at 757.

Third, the plaintiffs argued that contacts from Airbus’s “separately incorporated” subsidiaries should be imputed to Airbus because they maintained a physical presence in the United States. The court rejected this argument on the basis that the general rule is that jurisdiction contacts of a subsidiary are not imputed to the parent. Id. (citing Abelesz, 692 F.3d at 658–59 (internal citations omitted)).

Fourth, the plaintiffs cited a 2006 article showing that the FAA certified another aircraft model, the Airbus A380. The court also rejected this argument, finding that the isolated fact of the certification of another model aircraft had no special significance as far as personal jurisdiction is concerned. Id.

Having rejected the plaintiffs’ jurisdictional arguments, Judge Blakey turned to the plaintiffs’ alternative argument that venue in the Northern District of Illinois was proper because at least one other defendant, Motorola, resided in that district. The court rejected that argument, noting that establishing venue does not establish jurisdiction and that there was no legal basis for the court to conflate jurisdiction and venue. Id. at *6.

Thus, on December 30, 2015, the court granted Airbus S.A.S.’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. In doing so, the court rejected the plaintiffs’ argument that dismissing Airbus would set the dangerous precedent of effectively exempting Airbus from the MMTJA. The court reasoned that “[a]lthough Airbus’ contacts with the United States may have been extensive, plaintiffs have fallen far short of showing the de factorelocation that the Supreme Court has required for a foreign corporate defendant to satisfy general personal jurisdiction.” Id. at *5 (emphasis in original).

Conclusion
The significance of Siswanto and the MMTJA is that jurisdiction is analyzed on a nationwide basis, and not merely on a state-by-state basis or by looking at any particular state. Airbus’s contacts with Illinois or any other individual state are not discussed. Therefore, under the MMTJA, the court could have found that if Airbus was subject to jurisdiction in any state, jurisdiction would have been proper in Illinois as the state where the MMTJA case against Airbus was pending. Even under the statute’s broad jurisdictional sweep, encompassing the United States as a whole, a major non-American aircraft manufacturer was not in Siswanto, and may well not be in future cases, subject to personal jurisdiction anywhere in the country

American Bar Association, Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Casualty, Catastrophic Injury, Commercial Litigation, Compliance, Product Liability, Scott Brooksby, Service animals, Service animals, Wrongful death

Scott Brooksby featured as speaker and moderator regarding birds, pets, lasers, and other hot topics in aviation

On June 1, 2016, Scott Brooksby was featured as a speaker and moderator on a panel entitled “Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation”, at the American Bar Association’s 22nd Annual National Institute on Aviation Litigation, at the University Club of New York in New York, New York.

Scott and the other distinguished panelists provided an overview of emerging security issues for airlines, airports, manufacturers, and governments with respect to bird and animal strikes, laser strikes, and wheel well stowaways. Each pose the danger of catastrophic mass torts.  The topics discussed included the following issues:

• Bird strikes are the second-leading cause of death in aviation, with more than 400 deaths globally. Learn about required airport wildlife management plans and mitigation techniques, and how airports and the government can address liability risks.
• Flight crews are increasingly targets of inexpensive, and increasingly powerful hand-held green lasers. More than 7,000 laser strikes were reported to the FAA in 2015. This panel will discuss efforts by prosecutors pursuing criminal charges, and liability issues arising from laser strikes.
• Pigs, snakes and turkeys are just some of the pets, or emotional support animals, that airlines are confronting. The safety of other passengers, who may be the victims of physical injury of property damage, present liability issues for airports and airlines.
• The number of wheel well stowaway incidents are rising which poses security risks for airports and airlines, and it is not inconceivable that the stowaway with destructive intent could cause a catastrophic mass tort.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Product Liability, Scott Brooksby, Super Lawyers

Congratulations to Scott Brooksby for being honored in Oregon Super Lawyers!

BT8A7713R2collarshirt

No more than five percent of the lawyers in Oregon are selected for this honor.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts. He has experience in lengthy product liability trials, including the defense of a large aviation product manufacturer in a months-long trial.  He has also resolved hundreds of cases through arbitration and mediation. He has successfully argued many motions that resulted in case dismissals or other favorable results.  Scott has experience counseling product liability clients regarding the avoidance of litigation and unwanted governmental intervention.

Scott has litigated and tried catastrophic injury cases, particularly those involving allegedly defective products.  He has experience with medical treatment issues that result from falls, burns and amputation injuries in manufacturing facilities.  In the area of product liability, Scott has exceptional knowledge and experience in transportation industry accidents, aviation crash litigation, component part product liability law, and drug and medical device cases.

Olson Brooksby has extensive experience with product liability law through decades of representing national and international manufacturers, sellers, distributors, and suppliers.  Our trial lawyers know how to effectively settle and try product liability cases and how to minimize risk and avoid future claims.

Scott Brooksby has experience handling and working with a wide variety of product liability experts regarding complicated factual and medical issues.  The law firm of Olson Brooksby is familiar with federal and state product liability law and regulations, and work with our clients to determine the best defense strategy when faced with a product liability lawsuit or potential lawsuit.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Personal Injury, Product Liability, Scott Brooksby

Lasers on the ground pose a threat to aviation safety

Airplane wing

Laser beams on the ground pose a danger to aircraft — this is a serious issue that is well-known to commercial airline pilots.  The following is from Scott Brooksby’s article,  “Aircraft Laser Incidents: A Clear and Present Danger to Aviation Safety” published in the American Bar Association’s Mass Torts Practice Points on June 22, 2015:

Reports of aircraft targeting with handheld ground lasers have been rising sharply. In 2005, there were 300 reported incidents. By 2014, there were 3,894 reported incidents. Exposure to laser illumination may cause hazardous effects to pilots, such as pain, distraction or disorientation, loss of depth perception, and aborted landings.

The increase in reports of ground-based lasers targeting flying aircraft may be due to a number of factors, including the increased availability of inexpensive laser devices on the Internet, higher-power lasers that can strike aircraft at higher altitudes, and increased reporting by flight crews. Regulatory power for laser-light products is delegated to the FDA, and its regulations are found at 21 C.F.R. § 1010.

While some jurisdictions have made interdiction efforts using helicopters and other improved tracking methods, catching laser offenders is difficult. The devices are small, and when extinguished can be easily concealed and the location of the user can be in sparsely populated areas. To respond to the increasing attacks, the FAA launched the Laser Safety Initiative, which provides education on laser hazards and events, news, law, and civil penalties, and encourages reporting.

The latest reports indicate that aircraft illuminations by handheld lasers are overwhelmingly green, as opposed to the previously common red. This is significant because they are 35 times brighter than red, and the wavelength of green lasers is close to the eye’s peak sensitivity when they are dark-adapted. FAA flight simulation studies have shown that the adverse visual effects from laser exposure are especially debilitating when the eyes are adapted to the low-light level of a cockpit at night.

Restricted airspace surrounding commercial airports, in particular, can provide federal, state and/or local criminal penalties for violation with a laser, even if the operator is not operating the laser within the space, but merely causes the beam to intersect the controlled airspace to target an aircraft. In the United States, laser-airspace guidelines can be found in FAA Order JO 7400.2 (Revision “G” as of April 2008). Although it is far beyond the scope of this note, Chapter 29 of the order provides a comprehensive overview of the FAA’s laser guidelines.

In 2011, the FAA announced plans to impose civil penalties against people who point a laser into the cockpit of an aircraft. The FAA released a legal interpretation that concluded that directing a laser bean into an aircraft cockpit could interfere with a flight crew performing its duties while operating an aircraft, a violation of FAA regulations. The legal interpretation includes an analysis of 14 C.F.R. § 91.11, which establishes that “[n]o person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.”

14 C.F.R. § 91.11 had initially been adopted in response to hijackings. However, the FAA legal interpretation concluded that nothing in the regulation specified that the person interfering must be on the airplane. Previously, the FAA had taken enforcement action only against passengers on board the aircraft that interfere with crewmembers. The maximum civil penalty is $11,000. By June 2012, the FAA had initiated 28 enforcement actions.

On February 14, 2012, President Obama signed Public Law 112-95. The FAA Modernization and Reform Act of 2012, section 311, amended Title 18 of the United States Code (U.S.C) Chapter 2 § 39, by adding section 39A, which makes it a federal crime to aim a laser pointer at an aircraft.

The unprecedented escalation in the number of recent aviation laser incidents, coupled with more powerful lasers, wide and easy availability of lasers, the increasingly bold use and difficulties with interdiction, all pose problems. The undisputed evidence that lasers pose a danger to flight crews suggests that a tragic accident may only be a matter of time.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Litigation, Product Liability, Scott Brooksby

Scott Brooksby is co-planning the 2016 ABA Aviation Litigation National Institute

Scott Brooksby will be involved in planning the American Bar Association’s 2016 22nd Annual National Institute on Aviation Litigation in New York, New York.

This prominent, annual conference features seasoned aviation lawyers who present and educate on a variety of aviation litigation topics.  Scott is on the aviation subcommittee of the American Bar Association’s Mass Torts section.

Scott Brooksby has experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Scott has handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.

Much of Scott’s practice is devoted to aviation law, and Olson Brooksby is one of the few firms in Oregon with aviation trial experience.  Scott Brooksby leads the firm’s aviation practice, devoting a substantial amount of his time and practice to aviation-related matters.

Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court.  The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths.

While Olson Brooksby’s specialized aviation practice is headquartered in Portland, Oregon, the nature of the firm’s practice often takes its attorneys to various other geographical locations, particularly for investigations, witness interviews, and depositions.

Scott is experienced with a broad range of aviation law topics, and is familiar with allegations concerning: mechanical malfunctions due to airframe or component defects; improper repair or maintenance; improper weight and balance; weather; piloting and human factors; instruments and avionics; air traffic control; and even issues relating to bird strikes and lasers.

Commercial Litigation, Consumer products, Discovery, Evidence, Experts, Prior Claims, Product Liability

Federal Discovery and Admissiblity of Evidence of Prior Incidents in Product Liability Cases

Plaintiffs may achieve higher verdicts in product liability trials when there is evidence of prior claims establishing that the manufacturer had notice of the alleged defect in design, manufacture, or warning.  Therefore, in product liability litigation, most plaintiffs request discovery concerning prior claims, or incidents that did not give rise to formal claims, that are in any way related to the product.  For instance, a plaintiff’s lawyer might issue a broad discovery request for anything concerning prior incidents of any kind related to the model of product at issue or any version of that model.  Even more common and problematic are so-called “product line” requests that seek evidence of prior claims related to a broad range of allegedly similar products or similar models.

Requests for production concerning prior incidents might be routine for large companies that have large, sophisticated in-house legal teams and are likely to have storage, retrieval, and document retention policies, but such requests can be a terrible disruption for small businesses that may not have systems in place to handle aggressive discovery in litigation.

But no matter what size your client is, you should be prepared for a request for production seeking evidence of prior incidents and prior claims.  You should have discussions with your product liability clients early on in the case about the product’s incident and claim history, as well as potential discovery requests.

The first part of this article will discuss whether requests concerning prior incidents are actually discoverable.  We will discuss defense tactics for responding to requests for discovery concerning prior incidents, as well as representative cases from different U.S. federal court jurisdictions concerning discovery.

The second part of this article will discuss whether, even if discoverable, the evidence concerning prior incidents is ultimately admissible.  We will discuss strategies for preventing admission of evidence concerning prior incidents, as well as representative cases from different U.S. federal court jurisdictions concerning admissibility.    

Finally, the third part of this article will discuss strategies for assisting clients with the difficult process of discovery requests for evidence of prior incidents.

I. Whether requests concerning prior incidents are actually discoverable.

A. Defense tactics for responding to requests for discovery concerning prior incidents.

There is no single method for successfully defending against discovery requests for evidence concerning prior incidents.  Unfortunately, U.S. federal courts treat each case differently and, as explained below, various jurisdictions have different standards for the discovery of evidence of prior incidents.

That said, the facts and circumstances of each case are important, and any good defense will involve distinguishing the specific facts of your case from cases where the court allowed discovery.  Consider, for example, the distinguishing facts of the products, conditions, and intended uses at issue, particularly if you have a technical case.

Consider hiring an expert as early as possible and using your expert to assist you with defending against discovery requests.  Your can submit an affidavit from your expert explaining the differences between the incident involved in your case and the prior incidents.  The more technical your case, the more likely your expert will be useful and will be able to draw distinctions that the plaintiff is not prepared for.  An example of this might be important engineering differences in the product at issue versus the products involved in the discovery that plaintiff requests.

B. Representative cases from different U.S. federal court jurisdictions concerning discovery.

1) Discovery of evidence concerning prior incidents is generally allowed in                           federal court under Federal Rule of Civil Procedure 26(b)(1).

Federal Rule of Civil Procedure 26(b)(1) is broad and provides that discovery may be obtained as long as it is “relevant” and “reasonably calculated to lead to the discovery of admissible evidence.”  The advisory committee notes to Rule 26 provide that, “A variety of types of information not directly pertinent . . . could be relevant to the claims or defenses raised in a given action.  For example, other incidents of the same type, or involving the same product, could be properly discoverable . . . .”  Fed. R. Civ. P. 26 advisory committee’s note, 2000 amend., subdiv. (b)(1).

In Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 75 (D. Mass. 1976), the court underscored how broad discovery can be in federal products cases when it noted that, “most courts have held that the existence and nature of other complaints in product liability cases is a proper subject for pretrial discovery.”

2) Some jurisdictions (the Eighth Circuit, the Northern District of California, Kansas,       the Southern District of Indiana, Maryland, and the Western District  of                 Pennsylvania) require a threshold showing of relevance before the discovery is                   permitted.  After a threshold showing of relevance, the burden shifts to the                           defendant to demonstrate that any relevance is outweighed by the harm that would             result from the evidence being admitted. 

The ambiguous nature of the term “relevance” illustrates the problematic nature of the discovery phase of a lot of product liability claims.  Plaintiffs will make requests for “other incidents of the same type” or “other incidents involving” the product (or products, i.e., “all washing machines manufactured by defendant”) at issue or prior incidents with “similar circumstances”.

Some jurisdictions will require a “threshold showing of relevance” before evidence of prior incidents will be discoverable.  See, e.g., Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (“Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.”); Barcenas v. Ford Motor Co., 2004 WL 2827249, *2 (N.D. Cal. Dec. 9, 2004) (quoting with approval Hofer’s requirement of the threshold showing of relevance); McCoy v. Whirlpool Corp., 214 F.R.D. 642, 643 (D. Kan. 2003) (requiring that the discovery appear “relevant on its face”); Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (the discovery must first appear to be relevant, and then “the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”); Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 497 (D. Md. 2000) (“even though it relates to a light truck tire, not a passenger tire as is at issue here, the plaintiffs have established threshold relevance, as required by Fed. R. Civ. P. 26(b)(1) and Fed. R. Evid. 401.”); Swain v. General Motors Corp., 81 F.R.D. 698, 700 (W.D. Pa. 1979), (where the plaintiff met the “prima facie showing” of relevance to support his discovery request for evidence “concerning prior motor mounts” that allegedly failed in his vehicle).

3) Some jurisdictions (the Western District of Michigan, the Eastern District of                     Louisiana, and the Southern District of New York) require that prior incidents be “similar” to the incident that gave rise to the underlying case before allowing the discovery of evidence of prior incidents.  Whether the prior incidents are “similar” depends on the particular court and the facts and circumstances. 

Most jurisdictions generally do not apply the “substantially similar test”—requiring that the conditions of past incidents be substantially similar to those in the underlying case—until the admissibility phase.  However, some jurisdictions do require some amount similarity between the prior incidents and the incident that gave rise to the underlying case before allowing discovery.

For example, in Lohr v. Stanley–Bostitch, Inc., 135 F.R.D. 162, 164 (W.D. Mich. 1991), the court explained that, at the discovery phase, the circumstances surrounding prior incidents must be “similar enough”.  By contrast, at the admissibility phase, “Evidence of similar accidents is admissible so long as the conditions in effect during the past incidents are ‘substantially similar’ to those at the time of the incident in question and the two events arise from the same cause.”  Id. (internal citation omitted).

In State Farm Fire & Cas. Co. v. Black & Decker, Inc., 2003 WL 103016, *4 (E.D. La. Jan. 9, 2003), the court applied a “sufficiently similar” test and explained that, “In product liability actions it is frequently difficult to judge which of a manufacturer’s products are sufficiently similar to the allegedly defective product to be subject to discovery.”  As in Lohr, the Eastern District of Louisiana court in State Farm distinguished the less-stringent similarity standard for the discovery phase from the “substantially similar” standard applied to the admissibility phase.  State Farm, 2003 WL 103016 at *4 (quoting Lohr, 135 F.R.D. at 163).

In Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441, 443 (S.D.N.Y. 1990), the Southern District of New York explained that the prior incidents must be “sufficiently similar” in order to meet the “threshold showing of relevance”.  The court explained that, if the models of product in the prior incidents are different from the one at issue in the underlying case, discovery may be allowed if the models involved in the prior incidents “share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation.  For example, where a plaintiff alleged that three-wheel all-terrain vehicles are inherently unstable, he was entitled to discovery with respect to each of the manufacturer’s models.”  Id. (citing Culligan v. Yamaha Motor Corp., 110 F.R.D. 122, 124, 126 (S.D.N.Y. 1986)).

A court may require expert testimony to support the showing that the prior incidents were “sufficiently similar”, particularly when there are technical issues that require more knowledge than a lay person.  In Fine, the court explained that the plaintiff may have been allowed discovery if it had proffered “the affidavit of an expert in aviation engineering.”  Id. at 443.  Because plaintiff did not proffer any such expert testimony, the court denied the plaintiff’s motion to compel discovery concerning alternative designs for planes.  Id. at 443.

4) In the discovery phase, a few of jurisdictions (the Northern District of                               California, the Northern District of Illinois, and the District of New Mexico)                             have applied the more stringent “substantially similar” test that most courts do                     not apply until the admissibility phase. 

In a few jurisdictions, the plaintiff bears the burden of showing that prior incidents involving different products are “substantially similar” before discovery will be allowed.  For example, not only has the Northern District of California required a threshold showing of relevance before allowing discovery concerning prior incidents, but it has also required plaintiffs to show “that the different products are substantially similar . . . .”  Barcenas, 2004 WL 2827249 at *3

In Piacenti v. General Motors Corp., 173 F.R.D. 221, 225-26 (N.D. Ill. 1997),  the court held that the plaintiff failed to establish that a different model of vehicle was “substantially similar” and denied the plaintiff’s motion to compel.  The court explained that, “allowing discovery of models that are not substantially similar to the model at issue is truly the equivalent of comparing apples and oranges where there are differences between the other models and the model at issue in terms of wheelbase, width, and center of gravity.”  Id. at 225.  The court further stated that discovery concerning similar models should only be allowed if “the similar models have the same component parts or defects”.  Id.

In Gonzales v. Goodyear Tire and Rubber Co., the court noted that the “substantially similar” test applies if the plaintiff “seeks to discover or to introduce evidence of the design, testing or performance of other similar products . . . . .”  No. CIV 05–941 BB/LFG, 2006 WL 7290047, slip op., *7-9 (D.N.M., Aug. 10, 2001) (italics added).

Expert testimony may be helpful for both sides in these cases, but such testimony must be more than “conclusory.”  For example, in Piacenti, the court denied the plaintiff’s motion to compel answers to interrogatories and its supplemental request for production concerning evidence regarding other vehicle models manufactured by the defendant.  173 F.R.D. at 222.  The denial was without prejudice so that an expert opinion could be filed stating that the models “are sufficiently similar to the Suzuki Samurai [so] that tests performed on the Samurai would be relevant in determining liability with respect to the Geo Tracker [the plaintiff’s vehicle].”  Id.  Although the plaintiff submitted expert affidavits, the court found that they consisted of only “conclusory” statements as compared to the defendant’s expert affidavits, which were more detailed.  Id. at 225.  Therefore, the court ultimately disallowed discovery relating to models other than the one at issue in the lawsuit.  Id. at 225-26.

II. Whether, even if discoverable, the evidence concerning prior incidents is ultimately admissible.

A. Strategies for preventing admission of evidence concerning prior incidents.

As with requests for discovery, there is no silver bullet to fight against requests for the admissibility of evidence concerning prior incidents.  However, because the requirements for admissibility can generally be more stringent than the requirements for discovery, it is almost always worth fighting the admissibility of evidence of prior incidents.

You will be better prepared to fight against the admissibility of prior incidents if you hire your expert early in the case.  Prepare your expert to distinguish your case from evidence of any prior incidents that plaintiff might seek to admit at trial.  Expert testimony will almost always be helpful to distinguish your case from the prior incidents.  A good plaintiff’s lawyer will have an expert who will try to show that the prior incidents are similar to the case at issue.  Prepare for this early by ensuring that your expert is familiar with the product and with any evidence of prior incidents that plaintiff will seek to admit.  Make sure that your expert’s opinions are based on detail and technical knowledge and that they are not conclusory.

The value of the case may be significantly affected if the evidence of prior incidents is admitted.  It is always beneficial to know early on in the case whether the evidence will be admitted and the ways in which that can affect the case value.  Therefore, try to file your motions in limine early on in the case to prevent the admissibility of evidence of prior incidents.  Litigators generally wait too long to do motions in limine, e.g., we wait until the federal court deadline, just prior to the trial.  Consider filing motions in limine early on, especially in a technical case or if you feel that the evidence of prior incidents could really hurt you in front of the factfinder.

B. Representative cases from different U.S. federal court jurisdictions concerning admissibility.    

1) In most jurisdictions, evidence of prior incidents is generally admissible as long as the other incidents are “substantially similar” to the incident in the case at hand. 

Evidence of prior incidents is generally admissible as long as the plaintiff demonstrates that the other incidents are “substantially similar” to the incident in the case at hand.  Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).  See also Albee v. Contl. Tire N.A., Inc., 2010 WL 1729092, *6 (E.D. Cal. Apr. 27, 2010) (internal citations and some quotation marks omitted) (“The Ninth Circuit has repeatedly held      that . . . ‘substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.’  Minor or immaterial dissimilarity does not prevent admissibility.” ); Steede v. General Motors, LLC, 2013 WL 142484, *9 (W.D. Tenn. Jan. 11, 2013) (“the Sixth Circuit has recognized the substantial similarity doctrine and held, for example, that evidence of prior accidents is admissible to prove a defect so long as the prior accidents involved the same model, design, and defect, and occurred under similar circumstances”).

What is “substantially similar” will be determined on a case-by-case basis, depending on your jurisdiction.

For example, in Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 338 (5th  Cir.), modified on other grounds, 620 F.2d 464 (5th Cir. 1980), the plaintiff sought to admit evidence of a prior incident involving the collapse of an oil rig mast.  The court ultimately found that the prior incident was substantially similar.  It explained that, “Evidence of similar accidents might be relevant to the defendant’s notice, magnitude of the danger involved, the defendant’s ability to correct a known defect, the lack of safety for intended uses, strength of a product, the standard of care, and causation.”  Id. at 338-39.  The court found that evidence of the prior collapse could be relevant to show “notice of the defect, its ability to correct the defect, the mast’s safety under foreseeable conditions, the strength of the mast, and, most especially, causation.”  Id. at 339.

The court also stated that the admissibility of evidence of prior incidents concerning a product “depends upon whether the conditions operating to produce the prior failures were substantially similar to the occurrence in question.  The requirement that the prior accident not have occurred at too remote a time is a special qualification of the rule requiring similarity of conditions.”  Id. (internal citations and quotation marks omitted).

A plaintiff may use expert testimony to assist with its burden to show that the prior incidents are “substantially similar” and a defendant may use expert testimony to show that the prior incidents are substantially dissimilar.  Id. at 339-340.  See also Haynes v. Am. Motors Corp., 691 F.2d 1268, 1271–72 (8th Cir. 1982) (the defendant’s expert testified concerning dissimilarities between two different models of Jeeps and the court ultimately excluded evidence from the operator’s manual of the non-subject model).

Evidence concerning prior incidents may also be admissible because it is relevant “to show a culpable state of mind on the part of the defendant, e.g., persevering in a refusal to provide available safety features on a product despite knowledge of other similar accidents.”  Gonzales, 2006 WL 7290047 at *6 (citing Smith v. Ingersoll–Rand Co., 214 F.3d 1235, 1250 (10th Cir. 2000)).

2) In the Fourth Circuit and the Tenth Circuit, the substantially similar rule may    be             relaxed if the evidence of prior incidents is used to prove notice or awareness                     of a dangerous condition (rather than causation). 

The Fourth Circuit and the Tenth Circuit may relax the “substantially similar” rule if the evidence of prior incidents is used to prove notice or awareness of a dangerous condition rather than causation.  For example, in Benedi v. McNeil–P.P.C., Inc., 66 F.3d 1378, 1386 (4th Cir. 1995), the court explained that, “When prior incidents are admitted to prove notice, the required similarity of the prior incidents to the case at hand is more relaxed than when prior incidents are admitted to provide negligence.  The incidents need only be sufficiently similar to make the defendant aware of the dangerous situation.”  (Internal citations omitted.)

In Ponder v. Warren Tool Corp., the court noted that, “When evidence of other accidents is used to prove notice or awareness of a dangerous condition, the rule requiring substantial similarity of those accidents to the one at issue should be relaxed.”  834 F.2d 1553, 1560 (10th Cir. 1987).

III. Strategies for assisting clients with the difficult process of discovery requests for evidence of prior incidents.

     Clients often feel strongly that the prior incidents are not relevant and should have no bearing upon their lawsuit.  As any experienced lawyer knows, extensive requests for production can lead many clients who are less experienced with such requests to anxiously perceive that their entire brand, company, or even their own personal judgment is being put on trial.

Client resistance to production of evidence concerning prior incidents may be mitigated with repeated early discussion of discovery practice and relative risks.  Engage in detailed discussions before the requests are actually made.  If you practice in a jurisdiction with very liberal discovery rules, and if you have a particularly unsophisticated or reluctant client, you may even want to discuss the potential for sanctions in the event that discovery is wrongly withheld.

As soon as possible, you should have a discussion with your client concerning issues such as the assigned judge, the jurisdictional tendencies, whether or not production or admissibility of the evidence would be damaging, and whether the prior incidents may show prior notice of an alleged defect.

Damages, Defective Products, Litigation, Loss of Consortium, Personal Injury, Product Liability

Economic Losses and Loss of Consortium Claims in Oregon Product Liability Cases

Economic Loss is Not Available in Oregon in Strict Product Liability Cases

The recovery of economic loss such as lost profits or lost sales is not recoverable in Oregon in product liability actions where strict liability is alleged.  In Brown v. Western Farmers Assoc., 268 Or 470, 480 (1974), the Oregon Supreme Court held that strict product liability was not designed or intended to offer a remedy for such commercial aspirations as sales and profits.  Oregon is a physical injury state and the Oregon appellate courts have uniformly held that strict liability is not a remedy for purely economic loss in the absence of a physical injury to persons or property.  Russell v. Deere & Co., 186 Or App 78, 84-85 (2003).

Lost Income to a Spouse Who Cares for an Injured Spouse is Not Recoverable as Part of a Loss of Consortium Claim in a Product Liability Action

It should also be noted that a spouse is not entitled to recover for lost income sustained as a result of having to care for her injured spouse as part of a claim for loss of consortium.  Axen v. American Home Products Corp., 158 Or App 292, 309-311, adh’d to on recons, 160 Or App 19 (1999).  In Axen, a husband and wife brought a strict product liability claim for injuries to the husband allegedly caused by a prescription drug.  The husband and wife alleged that the husband’s use of the drug Cordarone caused a loss of vision.  The wife argued that she was forced to take an early retirement in order to care for her husband and as a result, lost retirement benefits of $436,392.00.  The jury awarded the wife nearly one million dollars for loss of consortium.  The Oregon Court of Appeals reversed the wife’s award of economic damages.  The court stated it would adhere to the “traditional rule” that lost income is not a proper subject of a damage award for loss of consortium.  Id. at 311.