With autonomous vehicles on the horizon, and Collision Avoidance Technology now in most new cars, what does that do to crashworthiness litigation? Cars have become safer over the years; automotive product liability litigation has been a significant factor that has precipitated safety changes.
Cars and other motor vehicles still have defects in design and manufacturing: airbags that do not deploy, roofs that crush, tires that fail, unsafe child safety seats, seats that collapse, seatbelts that do not hold the occupant securely, cars with sudden unintended acceleration, door latches that open during travel, ATVs/UTVs/Side-by-Sides rolling over and causing injuries, and unguarded fuel tanks, to name a few. Causes of action for failure to install blind spot detection, lane departure warnings, automatic emergency braking, and other collision avoidance technology have been brought in recent years. Here are some thoughts on how to handle a crash-worthiness case you may be considering.
Consider damages first. If your client does not have serious or catastrophic injuries, or did not die, you probably should decline any potential automotive product liability case. The costs involved can run well into the six figures. One of our trials several years ago had over $500,000 in costs through verdict. The single most frustrating fact for many persons injured because of automotive product liability defects is having their case declined, even with viable liability theories, because the injuries are not catastrophic.
As mentioned above, if you are evaluating a crashworthiness case, you need to consider the costs. Expert witness fees, including for vehicle inspection, testing (if appropriate), reading voluminous documents, and giving deposition and trial testimony will be high. You should get cost estimates from the experts, but cutting corners on costs, as you may do in a general tort case (such as using a local rather than a national expert), does not work in an automotive product liability case. You should retain the best experts you can.
Investigation in an automotive product liability case starts with a preservation letter to the entity that possesses the subject vehicle, requesting that the vehicle be preserved because it will be evidence in a civil action. Without a vehicle, you will most likely not be able to bring a viable crashworthiness case. Plaintiff and defense counsel need to inspect the vehicle, and the defective part of the vehicle will be key evidence.
Plaintiff’s experts will have to investigate the vehicle in person before a decision as to whether the case is viable can be made. Many experts will preliminarily look at photographs and police reports before traveling to inspect the vehicle. Based on that review, the expert may advise that the case would probably not be viable (e.g., not enough deformation in the roof to justify a roof crush case).
The electronic data recorder will most likely be downloaded early in the case. The defense counsel and its expert should definitely be invited to the download; otherwise the download’s accuracy may be challenged, and you may face a spoliation claim.
Experts are a necessary part of automotive product liability cases. An accident reconstruction expert is usually necessary to analyze how the crash occurred, with the speeds, Delta Vs, number of rolls in a rollover, and other findings. An expert on the particular defect in the case will be necessary. There are experts on airbags, door latches, fuel systems, ignition, roof crush, seats, seat belts, structures, and tires, to name several areas of crashworthiness litigation. Biomechanical experts are essential in most cases to opine on the occupant kinematics and mechanism of injury. The best source of obtaining experts in automotive product liability cases are colleagues who handle these cases, trial and settlement reports on the cases, and the Attorneys Information Exchange Group (AIEG), an organization of plaintiff attorneys who handle automotive product liability and other tort cases. When evaluating these cases, it is not only necessary to figure in these costs of your liability experts, but also costs from expert witnesses who will be needed to opine as to damages.
The Washington Product Liability Act is applicable in automotive product liability cases. There is also the Enhanced Injury Doctrine, which is now included in the WPI: WPI 110.02.02, WPI 110.02.03, and WPI 110.02.04. The doctrine holds that it is not the accident-producing fault which causes the enhanced injuries that are the basis for the automotive product liability lawsuit, but the injury-producing fault. The product defect causes the enhanced injuries which are the damages that are sought in the complaint.
In recent years, many automakers are bringing motions to dismiss on personal jurisdiction grounds. The decisional holdings vary, but the personal jurisdiction issue is currently before the United States Supreme Court, with oral arguments to be heard in October: Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct., U.S. No. 19-368; Ford Motor Co. v. Bandemer, U.S. No. 19-369.
There is no need to reinvent the wheel. Excellent sets of Interrogatories and Requests for Production have been drafted and answered in every type of automotive product liability case. Automakers will ask for a protective order for confidential and proprietary documents. It is the automaker’s burden to show that the produced documents are confidential and proprietary, although the standard practice is to agree to protective orders as long as several clauses are in place, particularly and without exception, sharing provisions. Sharing provisions allow the plaintiff’s attorney to share documents subject to the protective order with other plaintiff attorneys that have cases involving the same or similar defect in a vehicle manufactured by the defendant automaker based on the same or similar platform.
In every case, CR 30(b)(6) depositions should be taken following the completion of the first round of written discovery. CR 30(b)(6) depositions of automakers based in Japan routinely occur in the United States. Other foreign automakers may insist on the deposition occurring in the country where the automaker is based, subject to negotiation on other discovery matters and not bringing a personal jurisdiction motion. Service on a foreign entity under the Hague Convention may be waived and service accepted by the automaker, in exchange for an extension of discovery due dates.
Other Similar Incidents (OSIs)
Other similar incidents are cases similar to your case which have been filed in any jurisdiction. Other similar incidents may contain a wealth of information: whether your case may be viable, number of lawsuits against the automaker for the same defect, complaints, answered discovery, hot documents, protective orders to sign onto, CR 30(b)(6) depositions, expert depositions, and trial transcripts. Talking with the lawyer who handled an OSI lawsuit can be very helpful in learning about the strategy of the automaker and strengths and weaknesses of the case.
Voir dire lets you question jurors about their values and belief systems, including whether they would have difficulty finding a verdict against an automaker, if there is an amount of damages they could not go above, or whether they have trouble with the concept of awarding money damages.
Edited excerpts of CR 30(b)(6) depositions may be played for the jury during the plaintiff’s case.
Some of the automaker’s experts have earned millions of dollars testifying for automakers in crashworthiness cases; that information is available through interrogatories or OSIs.
Jurors want to live in a safe community. Most jurors and their families drive cars or other vehicles and know the importance of their vehicles being safe, without defects.
In final argument, jurors should understand that in this trial they are representing the conscience of the community, and they will hopefully return a verdict they will be proud of, now and in the years to come.
There are many considerations to weigh in determining whether you should pursue a crashworthiness claim. Often, the determining factor will be the costs to bring a claim, and whether the damages would support a sufficient verdict or settlement. Automakers vigorously defend these claims. As new technologies continue to evolve, it is important for plaintiffs’ attorneys to be familiar with new theories and to identify appropriate experts. Automakers have an advantage in that they are already in possession of documents, history, and testing from initiation of a suit. OSIs and sharing agreements help to level the playing field.
James S. Rogers is an EAGLE member, Past President of WSAJ (WSTLA), Fellow of The American College of Trial Lawyers, International Academy of Trial Lawyers, and the International Society of Barristers. He is the principal and owner of the Law Offices of James S. Rogers in Seattle, WA focusing his practice on product liability cases.
Heather M. Cover is an EAGLE member and associate attorney at the Law Offices of James S. Rogers in Seattle, WA where her practice focuses on product liability claims. She is co-chair of the product liability section.