The Product Liability Expert Who Wasn’t There

Product liability claims are doubly challenging for plaintiffs’ lawyers. First, product liability law is in a state of flux (with the trend going against injured consumers). Second, product liability cases are notoriously time-consuming and expensive to pursue: in addition to all the ordinary expenses and burdens of personal injury litigation, product cases usually require hiring a bevy of experts who then have to spend hundreds of hours examining the products and preparing their reports. It’s not unusual for lawyers to spend over one hundred thousand dollars on a product liability case in out-of-pocket expenses alone (not including lost attorneys fees), and when you start talking about complicated products like cars, you’re talking about a quarter million dollars or more.

 

That’s part of why product liability court opinions often have such tragic facts: the claim needs to be worth $1 million or more to justify the risk, and generally speaking, brain injury, spinal cord injury, and wrongful death cases are most likely to produce those kinds of awards. Whatever the injury is, it needs to be permanent, otherwise you’re investing six figures into a case that will, after expenses, return far less than that — or nothing at all.

 

Correspondingly, because the product liability suits brought involve such huge damages, they never follow the sort of routine that car accident and slip and fall cases do — where production of medical reviews and review of any police report or witness statements will answer most of the factual questions, and so the case can be settled with minimal litigation long before trial. The manufacturer or seller of a defective product will virtually never offer any sort of reasonable settlement amounts until after summary judgment and Daubert motions (testing the sufficiency of the plaintiff’s expert witnesses) have been decided.

 

I’m more than happy to rail all day against the unfair, sometimes downright illogical, restrictions placed on plaintiffs in product liability cases, and I’ve done so many times on this blog (e.g., railing against the Third Restatement of Torts, the learned intermediary doctrine, the judicially-created implied pre-emption doctrine). But sometimes the problem really can be traced back to the plaintiff’s case.

 

Via Abnormal Use, I learned of two recent product liability summary judgment opinions dismissing the plaintiffs’ respective cases, one in the South Carolina Supreme Court and the other in the federal court in Massachusetts. They’re examples of how the lack of a proper expert opinion can doom a case before it’s ever put in front of a jury.

 

Example 1: In South Carolina, a six-month-old baby born prematurely died even though she was on an electronic monitor that was supposed to sound an alarm when it detected an apnea or a bradycardia. The monitor’s internal log shows that it detected the apneas and bradycardias and sounded an alarm, but the parents allege that they never heard it, and so did not wake up. As the Court summarizes the claim:

 

The Graves subsequently filed a strict liability design defect claim against CAS, contending the monitor’s software design caused the alarm to fail. Their claim revolves around what is known as “spaghetti code,” which is when computer code is unstructured and becomes “a rather tangled mess.” Spaghetti code can result from the overuse of “goto” or “unconditional branch” statements, which causes a signal working its way through the code to jump around instead of following a linear path. Boiled down, the Graves’ theory is that certain unknown external inputs occurring during India’s apneic and bradycardia events triggered some of these goto statements as the signal was being sent to sound the alarm. This in turn caused the signal to be pushed off course and never reach its destination.

I can see a software malfunction causing a problem. There’s nothing sacrosanct about software code; think of how often your computer or phone malfunctions in an inexplicable manner. (Before anyone interjects that they’re sure the parents just slept through it, let me note that two of my kids had those “A&B” monitors themselves: when the alarm goes off, it is much louder, and more annoying, than even a smoke detector.)

 

But then the case went off the rails. The plaintiff apparently hired four separate experts — three to talk about the failure of the monitor, and one to testify that the child could have been revived, who together could have cost over $100,000 — yet not one of those experts actually walked through the software code to explain how the error could have occurred. I don’t have a problem with that type of inferential reasoning in general; inferential reasoning was at the heart of the differential diagnosis in the popcorn lung case. But when you’re arguing that software was so defectively designed that it can mistakenly record an alarm that never occurred, you need to have an expert who can point to the actual problem in the code, or at least replicate the error in testing.

 

Why didn’t they have a programmer chew through the code and come up with some examples?

 

Example 2: In Massachusetts, an eight-year-old girl was riding the escalator wearing Crocs. Part of her shoe got stuck in the side of the escalator, pulling her big toe in. After a couple horrifying seconds, in which the “emergency stop” button did nothing at all while a bystander managed to free the child by jamming his own foot in the side to make room, the kid was freed before a toe injury turned into an unspeakable tragedy.

 

Plaintiff sued the escalator manufacturer and the operator of the escalator (MBTA), both of whom settled, and against Crocs, Inc. But here’s the strange part: the plaintiff never really had an expert to really testify against Crocs. They had one sort-of expert disclosed for unclear purposes (they conceded he wasn’t there to testify there was a design defect), and then a pile of materials from when the Japanese government raised concerns about what was apparently a different model of Crocs. As the Court concluded:

 

From the pleadings, it appears that [plaintiff] intends to forgo expert testimony, and rely simply on “Crocs’ own admissions and the irrefutable [Japanese government] findings to establish CROCS’ defective design.” [Plaintiff] does not argue that this is one of those rare cases in which the doctrine of res ipsa loquitur renders expert evidence unnecessary. Rather, she contends that the [Japanese government] report, complaints of prior instances of escalator entrapment, and the Kids Blaze design are sufficient to reach a jury on the defective design claims.

(Citations omitted, some formatting changed.) Unsurprisingly, summary judgment was entered against the plaintiff. Part of me wonders if the plaintiff effectively abandoned the claim against Crocs once they achieved the settlement with Kone and MBTA by ditching the expert and trying a version of res ipsa — why throw the client’s good money after a bad claim? — but I don’t quite get why they brought the claim in the first place.

 

I don’t mean to criticize the plaintiff’s lawyers in either case. Hindsight is 20/20, and we take the cases as they come to us and as they develop. But I do think that, in both cases, earlier involvement by experts and perhaps a more critical look at the exact nature of expert testimony needed would have either changed the outcome of these cases or would have stopped them from being filed or pursued.

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