| Decades ago, I worked on a massive product liability case. I was involved on the coverage side rather than the case in chief.
Defend, No Matter What
The case was national in scope, with hundreds of claims. The manufacturer was in charge of the defense strategy, which was to not give an inch. Its carrier was concerned about the reasonableness of the skyrocketing defense fees, which it was closely monitoring.
The manufacturer insisted that the product could not have caused the alleged serious injuries, and it had a bevy of scientific experts to say so. Of course, the plaintiffs’ experts said the opposite.
The First (and Last) Case
The first case went to trial in front of a Southern California jury.
The verdict in favor of the plaintiff exceeded the 2023 equivalent of $8,000,000, eight million dollars.
After the case ended, the attorneys were allowed to speak with the jurors. “Did you find that the product caused the injury?” they asked. The jurors responded that the expert testimony was conflicting and confusing. One juror explained the verdict: “S/He was just so sick.”
Given the size of the verdict, the number of pending cases, the liability risk potential, and the prospective defense costs (which the carrier was contesting) including possible appeals, the manufacturer was forced to declare bankruptcy.
In the Chapter 11 proceeding, a fund was established to provide compensation for claimants. A hierarchy of claims was developed to determine the amount. The process took years.
The carrier refused to pay the full amount of the defense costs showing that the litigation management was unreasonable. Law firms were not fully compensated.
The Lesson
As among the issues of liability, causation, and damages, causation can be the trickiest.
If a plaintiff, particularly a sympathetic plaintiff, can get in front of a jury, the plaintiff is likely to prevail. In numerous cases, juries have returned large verdicts against a defendant who the jury sees as having deep pockets, even when a shallow-pocket defendant created the primary cause. Jurors often have difficulty following experts’ testimony and may be reluctant to favor one over the other, instead relying on other evidence.
I have personally tried more than one hundred cases. As a mediator, I have often tried to discuss risk exposure and likely outcomes with the participants. Regrettably, on a couple occasions, intransigent parties have taken the stance: we have a perfect case and will not settle. Then, I later learned they suffered exactly the bad result I had warned about.
Parties in mediation are in charge of the result. The mediator can only facilitate the negotiation. That includes raising issues and sharing the benefit of their experience. Just because the amount at issue in your case does not approach seven figures doesn’t mean it’s not subject to the same dynamic at trial as experienced by the memorable product liability defendant. |
