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“Product Liability Claims” – Birmingham Bar Association, Nat Bryan

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“Product Liability Claims” – Birmingham Bar Association, Nat Bryan

August 23, 2002
Birmingham Bar Association


Important Points to Consider When Handling and Evaluating
From a Plaintiff’s Perspective


Nat Bryan

800 Shades Creek Parkway
Suite 600-D
Birmingham, Alabama 35203


I. Introduction

II. Intake and Investigation

a. Meeting with Client
b. Locate, Inspect, and Preserve Evidence
c. Interview Witnesses
d. Evaluate Potential Defendants

III. Prepare Complaint and Initial Discovery

a. Fictitious Party Practice
b. Initial Discovery Requests

IV. Discovery

a. Follow-up Discovery Requests
b. Rule 30(b) Deposition Notices
c. Deposition of Fact Witnesses
d. Damages/Life Care/Day in the Life Witnesses

V. Expert Witnesses

a. State Court, Federal Court, and Daubert/Kumho Tire Issues

VI. Trial Preparation

a. Demonstrative Evidence

VII. Trial

a. Jury Selection
b. Theme

I. Introduction

The stepping-off point for assessing any potential product liability action is a determination of whether the facts can satisfy the elements of a prima facie case.

A nutshell version of the proof required for a prima facie product liability case under Alabama law is provided in Alabama Pattern Jury Instruction Number 32.09, which states:


The plaintiff charges (1) that (he) (she) suffered injury or damages to (himself) (herself) or (his) (her) property (2) by one who sold a product in a (3) defective condition unreasonably dangerous (4) to (him) (her) as the ultimate user or consumer and (5) that the seller was engaged in the business of selling such a product and that (6) the product was expected to, and did, reach the user or consumer without substantial change in the condition in which it was sold.

Because this is what the trial judge will tell the jury that the plaintiff must prove to prevail, it is a good idea to work up your case so that it “backs in” to the jury charge.

There are three bellwether decisions whose holdings you should know by heart if you are considering handling a product liability action. Those decisions are: Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala. 1976); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976); and Sears, Roebuck & Company, Inc. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala. 1981). Casrell and Atkins, which were released on the same day, laid out for the first time the elements of the “Alabama Extended Manufacturer’s Liability Doctrine,” or AEMLD, which still applies. Atkins provides a special original-source guide for the practitioner, in that it incorporates in its published “appendix” the elements of and commentaries to Section 402A of the Restatement (Second) of Torts. 335 So. 2d at 144-151.

Atkins also sets out the three “available” affirmative defenses to an AEMLD claim and the elements of those defenses. 335 So. 2d at 143.

The Sears, Roebuck v. Haven Hill Farms decision was important for its central (and restrictive) holding that the mere fact that a product failed does not establish that it was “defective” as that term is used in an AEMLD case. But as Justice “Red” Jones pointed out in his concurring opinion in that case:

[T]his is a classical failure of proof case. It is not a weight of the evidence case. Our reversal is based on Plaintiff’s failure to prove a prima facie case and not its failure to negate all of the possible contributing or sole causes interposed as defenses nor on our finding that Defendant established one or more of its affirmative defenses.

395 So. 2d at 996 (italics in original).

Thus, the practitioner should go back and re-read Sears, Roebuck v. Haven Hills Farm, for no other reason than to understand what a “failure of proof” looks like.

More recent decisions of the Alabama and federal appellate courts have re-stated the elements of a prima facie AEMLD case. In Verchot v. General Motors Corp., 812 So. 2d 296 (Ala. 2001), Justice Harwood’s opinion said:

We have [ . . . ] discussed at length what must be shown to proceed with a claim under the AEMLD [ . . . ]:

“Under the AEMLD, a manufacturer has the duty to design and manufacture a product that is reasonably safe for its intended purposes and uses. However, the manufacturer of a product is not an insurer against all harm that might be caused by the use of the product, and the manufacturer or designer is not obligated to produce an accident-proof or injury-proof product. Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala. 1976); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976); Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976)[.] In fact, as stated in General Motors Corp. v. Edwards, 482 So. 2d 1176, 1183 (Ala. 1985), overruled on other grounds, Schwartz v. Volvo North America Corp., 554 So. 2d 927 (Ala. 1989), the ‘failure of a product does not presuppose the existence of a defect.’ The fact that someone was injured while using a product does not establish that the product was unreasonably dangerous when put to its intended use. Thompson v. Lee, 439 So. 2d 113 (Ala. 1983); Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala. 1981); Casrell v. Altec Industries, Inc., supra. Proof of an accident and injury alone is insufficient to establish fault under the AEMLD. Thompson v. Lee, supra. Rather, because the AEMLD is a fault-based cause of action, the plaintiff must prove more than the fact that an injury occurred while [the plaintiff was] using the product. Casrell v. Altec Industries, Inc., supra. Under the AEMLD, the plaintiff must affirmatively show a defect in the product. Id. In Sears, Roebuck & Co. v. Haven Hills Farm, Inc., supra, at 995, this Court reviewed the proof necessary to establish a prima facie case under the AEMLD:

” ‘Liability is not established merely by showing that the product failed in furthering or performing its intended use. The Plaintiff must prove that the product was substantially unaltered when used by him and must also prove causation in fact, including proof that the defect caused the injury and that the defect is traceable to the Defendant.

” ‘ “The fact of an injury, of course, does not establish the presence of a defect. Thus, recovery cannot be predicated on injury alone, for linking liability to injury rather than to proof that a product is defective creates absolute rather than strict liability.”

” ‘ Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 289 (5th Cir. 1975). Necessarily, then, the test is met only by a showing that the product’s failure of performance is causally related in fact to the product’s defective condition at the time of its sale.

” ‘The evidence and testimony likely to prove the defect — that which rendered the product not fit for its anticipated use — and the defect’s link to the Defendant, depend upon the nature of the facts; but ordinarily, expert testimony is required because of the complex and technical nature of the commodity.’ “

Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d 1328, 1331-32 (Ala. 1991)(emphasis added in first paragraph).

812 So. 2d at 300-01.

Given the propensity of most manufacturers to remove cases to federal court, it’s not a bad idea to consider what the folks in Atlanta think makes out a prima facie case under the AEMLD. The analysis presented in the per curiam opinion of the Eleventh Circuit in Goree v. Winnebago Industries, Inc., 958 F. 2d 1537 (11th Cir. 1992), is highly instructive:

The AEMLD is a judicially developed products liability doctrine. See Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala. 1981); Casrell v. Altec Indus., Inc., 335 So. 2d 128 (Ala. 1976). It is a modified version of strict liability that premises liability upon the sale by a manufacturer of a defective product. To establish a prima facie case against a manufacturer under the AEMLD, a plaintiff must show that (1) the defendant manufacturer sold a defective product, (2) the defect was the cause in fact of the plaintiff’s injury and is traceable to the defendant, and (3) the product reached the plaintiff without substantial modification to the condition in which it was sold. Sears, Roebuck, 395 So. 2d at 994.


Under the first element of the prima facie case, a defect in a product is defined as “that which renders a product ‘unreasonably dangerous,’ i.e., not fit for its intended purpose. …” Casrell, 335 So. 2d at 133. “Defective” means that “the product does not meet the reasonable expectations of an ordinary consumer as to its safety.” Id. A plaintiff does not have to establish the specific defect that caused his injury, only that the product was unreasonably dangerous. Sears, Roebuck, 395 So. 2d at 995.

[ . . . ]

We also conclude that the district court overstated its case when it held that expert testimony is always required to establish a defect under the AEMLD. While such testimony may be necessary when the product alleged to be defective is complex and technical in nature, expert testimony is not required when a jury could reasonably infer from the product’s failure “under all the attendant circumstances” that its defective condition caused the plaintiff’s injury. Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d 1328 (Ala. 1991); Sears, Roebuck, 395 So. 2d at 995. The plaintiff establishes a prima facie case as long as he provides sufficient evidence from which the jury could deduce that the product was defective, and that his injury was caused by the defect.

[ . . . ]

Contrary to Winnebago’s assertion, the Sears, Roebuck court did not reject the plaintiff’s suit under the AEMLD because of its failure to present expert testimony to establish the existence of a defect. Instead, it found that the plaintiff had failed to produce any evidence other than the fact of the blowout from which a reasonable jury could conclude that the tire was defective. Consequently, Sears, Roebuck is distinguishable from the present case where there is adequate evidence showing a defect in the product, thereby establishing a prima facie case. Nor did the Sears, Roebuck court pretermit the pursuit of any case under the AEMLD without the use of expert testimony going to the existence of a specific defect. As we have already noted, Sears, Roebuck itself recognized that there will be certain instances under the AEMLD where a reasonable jury can infer from the attendant circumstances, without the aid of expert testimony, that a plaintiff’s injuries resulted from a product’s unreasonably dangerous condition. See id. at 995.


The district court further erred when it decided as a matter of law that Goree is not an ordinary consumer because of his paraplegic condition. Whether a consumer is an “ordinary consumer” depends upon whether he was a foreseeable consumer. Cf. Caudle v. Patridge, 566 So. 2d 244, 246 (Ala. 1990). It does not depend, as Winnebago contends, upon whether Winnebago intended for its Chieftain to be operated by a paraplegic with no sensation to heat in his feet. The proper question in this case is whether it was foreseeable for any person to be burned while operating the Chieftain.

[ . . . ]


The third element of the plaintiff’s prima facie case under the AEMLD requires a plaintiff to establish that the product “was expected to, and did, reach the user without substantial change in the condition in which it was sold.” Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 450 (Ala. 1982) (quoting Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala. 1976)). This examination is tied to proximate cause. The question is whether the plaintiff’s “injuries were proximately caused by a defect in the product as manufactured and sold, or by a defect created by the alteration by the user or a third party.” Banner Welders, 425 So. 2d at 451 (quoting Frederick E. Fleder, Annotation, Products Liability: Alteration of Product After It Leaves Hands of Manufacturer or Seller As Affecting Liability for Product-Caused Harm, 41 A.L.R.3d 1251, 1253 (1972)). Standing alone, the fact that a product has been changed is not enough as a matter of law to relieve the manufacturer of liability. The manufacturer can still be liable for the plaintiff’s injuries if there is sufficient evidence that the injuries were not caused by the modification to the product. Johnson v. Niagara Machine and Tool Works, 555 So. 2d 88, 91 (Ala. 1989).

958 F. 2d at 1540-43.

Armed with the foregoing legal lore, let’s examine how to apply it in working up an AEMLD case for a plaintiff so that it meets those prima facie requirements.

II. Intake and Investigation

a. Meeting with the Client

In any products liability action, an initial meeting with the client is vital before spending time and resources in investigating and evaluating any products liability action. An initial determination must be made of the severity of the client’s injury and/or the causal relationship of the client’s injury and/or death to the alleged defect in the product itself. Along those lines, you must always initially evaluate your client’s damages (i.e., medical bills, lost wages, loss of consortium, etc.) to make a determination whether the potential case would be economically cost-efficient given the high cost of products liability litigation. Many cases involving product defects have to be turned down because the cost of litigation would outweigh any damages you could reasonably expect to recover on behalf of the client.

In this process, you must naturally take into consideration the estimated cost of litigation versus the potential damages that are recoverable. Subrogation issues, especially given the current state of subrogation under Alabama law, must be immediately identified so as to adequately advise the client in the initial evaluation.

In the initial meeting with the client, a thorough evaluation and discussion of the available defenses should be made. Contributory negligence, assumption of the risk, misuse of the product, alterations/modification, etc., are very real defenses which must be weighed in the initial evaluation. In this process, you must evaluate the potential contributory negligence on the part of your client in causing the accident (see Dennis v. American Honda Motor Corp., 585 So. 2d 1336 (Ala. 1991)), versus your client’s misuse and/or contributory negligence in using the product itself (see Culpepper v. Hermann Weihrauch KG, 991 F. Supp. 1397 (M.D. Ala. 1997)).

Finally, in the initial meeting with the client, a thorough explanation of the employment contract with the client should take place and any and all questions regarding prospective expenses, subrogation issues, etc., should be disclosed. This will avoid potential problems which can and do arise at the conclusion of the case if a recovery is made.

b. Locate, Inspect, and Preserve Evidence

In any products liability it is vitally important to secure the product/evidence. In order to meet your burden of proof that the product and/or a component part thereof is defective and unreasonably dangerous, you must normally have the product in order to prove that defect. If the product is destroyed, it is often virtually impossible to prove the defect which existed at the time of the accident. An obvious exception to this general rule would be where the product is destroyed in the accident (i.e., fire). In this exception, reconstructive analysis through cause and origin or other expert analysis is required. The defect can also be often be proven through research on product history, recall information, etc.

Proving the product defect most often is always required through expert testimony. Have your expert inspect the product and make sure that the product and/or any attendant evidence is stored in a secure, available location. Avoid any destructive testing unless done so pursuant to court order and/or agreement of the parties under a well-monitored protocol and, especially, avoid any loss of the product itself. (See, e.g., Capital Chevrolet, Inc. v. Smedley, 614 So. 2d 439 (Ala. 1993)).

c. Interview Any and All Potential Witnesses

The initial investigation is vital in any product liability action. Police officers, EMTs, co-workers, prior owners/user, etc., have vital factual information that can be critical in any products liability action. Police officers and EMTs are often the first witnesses on the scene of a car accident where there can be a crashworthiness or defect claim. They have first-hand, eye-witness knowledge of facts that can support your claim, such as whether the seatbelt was being worn, the position the vehicles, the position of the occupants of the vehicle, physical evidence at the scene which will assist in accident reconstruction, etc.

Co-workers in industrial accidents possess potentially vital information about prior repairs, modifications, and so forth. They also possess information that will bear heavily on defenses such as contributory negligence/misuse that will be raised by the defendants.

d. Evaluate All Potential Defendants

In the initial evaluation stage of the handling of a products liability action, you must identify all potential defendants that have been involved in the processes of manufacturing, design, installation, and so forth. You must also look for any repair facility that may have done remedial and/or modification work to the product.

Most all products in this country are sold through a distribution network. The distributor should be identified as many distributors have vital knowledge of not only the sales process, but optional safety equipment that could or should have been provided with the original product itself.

In many cases, an evaluation must be made as to whether is attendant co-employee liability for the removal of a safety device. Naturally, an evaluation must be made as to whether the co-employee actions would amount to a modification of a product, whether the modification is foreseeable, etc.

Finally, in evaluating the potential defendants, plaintiff’s counsel must identify whether the case is one which will be brought in state court with jurisdictional defendants or if the case will be properly removed to federal court. If there are no jurisdictional defendants in the case, the evaluation needs to be done as quickly as possible given the fact that there is no fictitious party practice in federal court.

III. Preparation of Complaint and Initial Discovery

a. Fictitious Party Practice

Plaintiff’s counsel should utilize the fictitious party practice available under the Alabama Rules of Civil Procedure to its fullest. You should strive to identify and name and potential defendants that could have been involved in some aspect of the product becoming defective. This would include such things as repairs, modifications, installations, specifications, etc.

The complaint should state causes of action under the Alabama Extended Manufacturer’s Liability Doctrine, common law negligence and wantonness, and possibly breach of warranty claims. Identifying model/serial numbers for the product should be given and sufficient factual data to allege the defect involved.

b. Initial Discovery Requests

Along with the complaint, I would recommend filing initial discovery requests. The initial discovery requests should seek general information regarding distribution of the product, repairs/modifications/changes to the product, insurance information and request for any drawings and/or technical literature regarding the product itself.

IV. Discovery

a. Follow-up Specific Discovery Requests

After obtaining initial information from the defendants in the initial discovery requests, more pointed, specific discovery requests should be propounded to the defendants. These discovery requests can be in follow-up to earlier discovered information and/or discovery that is pointed towards the specific defect and/or component parts thereof.

b. Rule 30(b) Deposition Notice

Oftentimes, these specific discovery requests should follow the 30(b) deposition notice of the corporate representative. Although sometimes difficult to do, the 30(b) notice to the corporate representative should be specific and it is preferable to have documents produced in sufficient time prior to the deposition to allow adequate preparation.

c. Deposition of Fact Witnesses

Further consideration must be given to securing the testimony by deposition of fact witnesses. Some fact witnesses are not cooperative and must be deposed. Other witnesses’ testimony, where extremely vital to your case, must sometimes be preserved due to the witnesses’ potential unavailability.

d. Damages/Life Care/Day in the Life Witnesses

In products liability claims involving catastrophic injury, serious consideration has to be given to conducting extensive discovery on damages such as medical treatment, future medical needs, life care plans, day-in-the-life evidence, etc. With catastrophic injuries such as paralysis, amputations, and severe brain injuries, preparation of the case in discovery of these damage components is vital.

V. Expert Witnesses

As referenced above, expert witnesses are vital in the prosecution of any products liability action. Great care must be used in selecting experts that are not only qualified, but that are subject to the least possible attacks on credibility issues. Plaintiff’s counsel should be well aware of the expert requirements in both state and federal court. While our requirements in state court are often extensive, the requirements in federal court with the preparation of a report and Daubert/Kumho Tire challenges are critical to whether a case will survive and be presented to a jury. In my judgment, unless the court orders otherwise, plaintiff’s counsel should always be prepared to have their expert witnesses available to testify at any Daubert/Kumho Tire hearing.

VI. Trial Preparation

Preparation of Exhibits and Demonstrative Evidence

Adequate consideration must be given to preparation of exhibits prior to the scheduled trial date. While this seems obvious, it is often overlooked. In more and more scheduling orders, courts are requiring specificity with the identification of exhibits and are requiring that exhibits be pre-marked. Careful decisions must be made with respect to “blow-ups”, Power Point presentations, models, and other demonstrative evidence that will assist the jury with understanding the product defect and/or with understanding the nature and extent of the client’s catastrophic injury. In some cases which are document intensive, a Power Point presentation should be considered in light of the number of documents that may involve product history, known problems, engineering bulletins, etc., that will be shown to a jury. In other cases involving a smaller number of product documents, strong consideration should be given to the use of “blow-ups” as they are still very effective with the jury.

VII. Trial

a. Jury Selection

While entire papers and presentations are made with respect to the trial of products liability actions, I will briefly summarize some points that deserve strong consideration in every products liability case. Like any case, jury selection for the plaintiff is vital. In today’s times, juries are more cynical. The publicity of the McDonald’s coffee case, the BMW case, etc., have biased juries. Prospective jurors must be questioned extensively about the product, about their knowledge and feelings about the product, about any understanding or preconceived ideas about the defect, about the client’s injuries and/or the causal relationship of the injuries to the defect, etc. In high profile cases, such as cases that involve products were documented and reported incidents of defect have been in the news, this should be fully explored with prospective jurors. Undoubtedly, each and every individual on the jury pool will have some preconceived idea about whether the product manufacturer has been justly or unjustly accused of manufacturing and designing a defective product.

b. Theme

It is vital that you establish the theme early in jury selection and in opening statement and simplify your case to where the jurors and the court can understand your allegation of the defect which should have been done to correct the defect and how it has injured and/or killed your client. While all this sounds overly simple, all too often complex technical issues involving a product defect are not fully understood by those who are most important in the trial itself B the jurors. It is vital to realize that it is most likely that none of the jurors who will ultimately decide the case have any real knowledge or experience in the product defect itself. The simpler the explanation of the defect and how the accident could have been prevented, the better.


I hope the foregoing will act as an overview and primer for plaintiffs’ counsel in the handling and prosecution of most products liability claims. Obviously, each and every case stands on its own and has its own unique facts, circumstances, and evidence. Hopefully, this will be of some help to you in the handling of these interesting and challenging cases.

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