Back before CalBizLit went on hiatus, I had started what was intended to be a three or four part blawg post outlining the protocol for defending a small to mid-size, non-bet the company, non-class-action, non-mass litigation, non-unique garden variety product liability case. Getting part two written and posted became more and more of a challenge as the lives professional and personal competed for my attention, and the next thing you know, it's a month later. Ouch. So, for those who need a refresher, here's Part I.
And after the jump, I've posted Part II. Part III will appear early next week. I promise.
LEARNING ABOUT THE PRODUCT AND ITS HISTORY
As with the "stupid call," this is not restricted to California and it isn’t rocket science either. If you are going to defend the product, you need to know what makes the product tick. And that means using the client's resources -- engineers and others -- to educate yourself.
But in addition to how the product works, there are some other things you need to know: Has the product been the subject of other tort litigation? Have there been “other similar incidents” involving “substantially similar” products? What re the client’s product testing protocols, and what records are there of testing? Have there been warranty claims that may be arguably relevant to the plaintiff’s claim? Have there been proposed product improvements that weren’t adopted, or improvements made after the subject product was placed in the stream of commerce, and/or after the accident in question? Does the client have other products that may not be “substantially similar” but have a troubling accident history?
While discovery concerning these issues is likely to come up in product liability cases venued almost anywhere, companies defending in California need to be aware that the appellate authority addressing discovery on these matters tends to strongly favor disclosure, and companies must pick their discovery battles carefully. Thus, for example:
- A plaintiff may prove product defect by introducing evidence of other accidents, involving other, non-identical products, so long as the products and circumstances of the accidents are “substantially similar” to those in question. (Hassan v. Ford Motor Company (1982) 32 Cal.3d 388);
When the plaintiff seeks to introduce such evidence to prove notice – as when seeking punitive damages – the standard is more relaxed: “all that is required ... is that the previous injury should be such as to attract the defendant's attention to the dangerous situation ...” (Laird v. T. W. Mather Inc. (1958) 51 Cal.2d 210, 220);
- In discovery, the standard for allowance is often more liberal than that for admissibility. See, for example, Perkins v. Superior Court (1981) 118 Cal.App.3d 761.
So, while companies can and should take and defend good faith positions about what other products are “substantially similar” and the scope of discovery that makes sense, they need to know that the California courts aren’t always receptive to the arguments used to support restrictive and limited discovery responses in this area. The defendant’s best hope may often be Code of Civil Procedure section 2019.030:
use of a discovery method provided in Section 2019.010 if it
determines either of the following:
(1) The discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive.
(2) The selected method of discovery is unduly burdensome or
expensive, taking into account the needs of the case, the amount in
controversy, and the importance of the issues at stake in the
This section of California’s discovery act potentially provides some protection against overly intrusive discovery, at least in smaller to medium cases.
And incidentally, with a view toward “know the enemy,” I present the following: The California plaintiff law firm of Robinson, Calcagnie & Robinson, Inc. (very difficult to deal with, but highly competent law firm) has posted a pretty good summary of the plaintiff take on these issues here.
DISCOVERY – ROUND ONE
As in most jurisdictions, the first round of discovery consists of paper discovery: interrogatories, inspection demands (the fancy California term for what everybody else calls “Requests for Production of Documents”), and requests for admissions. But here are the unique California twists: the form interrogatories and requests for admissions used all over the country, the ones with subparts, introductions, definitions, etc.? They don’t work in California. There’s an extensive discussion of this in our firm's discovery white paper. But here’s a handy shortcut: for the routine, garden-variety product liability personal injury or property damage case, start with California’s Judicial Counsel form interrogatories, which are located here. At the same time, serve an inspection demand seeking, at a minimum, (a) all documents disclosed in the interrogatory answers; (b) any relevant medical records, bills, doctor reports, property damage back-up, photographs, etc. What you won’t get, and shouldn’t bother asking for at this point, is expert information, which generally isn’t discoverable until fifty days before trial.
This “round one” discovery should, if properly responded to by the other side, get you background information on the plaintiff and her case (other names, addresses, marital status, employment history, injury claimed, known medical bills, earnings loss, property damage, hospitals, treating medical practitioners, etc.) that will allow you and the client to begin to determine what the case is about, how big it is, and what your plan of attack should be from then on.
Defendants and their counsel often lose track of the fact that the California Discovery Act gives them priority of written discovery over the plaintiff. Defendants can serve written discovery at any time – i.e., the day after service of the summons and complaint – while plaintiffs cannot serve written discovery until ten days after the summons and complaint are served. See, for example, Code of Civil Procedure sections 2030.020 and 2031.010. While there are many cases where priority is overrated, there are others where it truly matters, and this is something that counsel should, at least, evaluate. Too often, the first discovery served is by the plaintiff, who serves the agent for service of process ten days after serving the summons and complaint, and defense counsel doesn’t even evaluate what discovery to send until weeks or months later.
DISCOVERY – ROUND 1.5
Before we get to Discovery Round Two – which we’ll talk about in the next post – we need to address the question of records in the possession of others. While the initial inspection demand will seek all medical records, bills, reports, etc. in the hands of the plaintiff or his attorneys, all you’re going to get – at most – is those documents the attorney got around to obtaining before filing suit. They almost certainly won’t be complete or current, and you do need to satisfy yourself that nothing is being held back. So you need records authenticated by, and produced by, the doctors, hospitals and other medical providers.
California has a complicated and detailed set of procedures for obtaining records, and particularly “personal information” such as medical records, from non-parties. For anyone interested, the ponderous code sections are Code of Civil Procedure section 1985 and following. For more normal people, what you need to know is this: there are records companies who, acting as attorneys’ agents, specialize in preparing and serving the notices, subpoenas and other documentation necessary for obtaining such documents and complying with the intricacies of the code. They also follow up with doctors, hospitals, etc. who ignore the original notices, make copies of all documents for all parties, obtain declarations from the providers authenticating the records, etc. No sane lawyer tries to do this him or herself.
There are two caveats concerning the records companies: First, the quality is uneven, so lawyers do need to find and stick with companies that prove themselves reliable. Second, an attorney, or qualified paralegal, should write the description of the documents to be obtained to ensure that nothing is overlooked, or at least confirm the adequacy of the records company’s description before the notices are served. The records company then will use the provided (or approved) description and serve the appropriate notices. Obtaining records using code-compliant notices will usually take about forty-five days if the providers are cooperative.
Once all, or at least most, of these records have arrived, you are ready for Discovery, Round 2. And that will be the subject of the third part of this guide, which CalBizLit will post next week.