CLIFFORD J. ZATZ
Crowell & Moring, LLP
Anatomy of an aerosol
product liability lawsuit
This paper was originally presented at the Southern Aerosol Technical Association (SATA) Fall Meeting.
Your company’s first product liability lawsuit can be mysterious
and daunting. What legal and factual issues will you
have to contend with? What are the key events and decision
points? How can you bring the case to an end? An aerosol
product liability case I recently litigated to the verge of trial may
help you understand the process.
The case involved three objects: a cigarette lighter, a cotton
T-shirt and a can of aerosol spray sunscreen. Plaintiff alleged that
her six-year-old son and his friend were playing with a discarded
cigarette lighter when his clothing suddenly “exploded in flames.”
He suffered second- and third-degree burns over 20% of his body.
His upper torso was “mangled.” Attributing the burns to the
sunscreen she’d sprayed on the child that morning, she sought
$10 million in damages on the boy’s behalf.
For simplicity’s sake, let’s look at a product liability case like
this as having five overlapping stages:
1. Pleadings →
2. Discovery & Fact Investigation →
3. Experts →
4. Motions & Pretrial →
5. Resolution
Pleadings: The case begins
A product liability case begins with a document called, in the
Federal and most State courts, the “complaint.” It identifies the
parties, states the basis for the court’s jurisdiction and venue, alleges
the facts and the plaintiff’s legal theories (“causes of action”)
and asks for damages or other relief.
The complaint in our case alleged the three most frequent
causes of action in product cases:
1. Negligence: the failure to exercise “reasonable care” in
design, manufacture or warnings
2. Strict product liability: liability without fault for the manufacture
or sale of a defective and unreasonably dangerous
product
3. Breach of warranty: express or implied by law
20 Spray April 2020
What should your company do if served with such a complaint?
One option is a motion to dismiss. The judge can quickly dispose
of the case if, for example, the court lacks jurisdiction, the complaint
fails to state any viable legal theory or the suit is barred by
the statute of limitations. Unfortunately, on a motion to dismiss,
the court must accept the facts alleged in the complaint as true.
Much as we’d like to argue that the plaintiff can’t prove her case,
this isn’t the time to do so.
More often, we file an “answer.” It admits or denies each allegation
in the complaint and raises so-called “affirmative defenses.”
Our case offered us a third alternative. The plaintiff filed the
lawsuit in State court in Pittsylvania County, VA against our
out-of-state client. With parties of diverse citizenship and more
than $75,000 at issue, Federal law allowed us to “remove” the case
to Federal court. Now we were in the U.S. District Court for the
Western District of Virginia, which encompasses Pittsylvania and
four other counties. This was a key strategic move. Defendants
generally prefer to be in Federal court, where judges have lifetime
tenure and the jury pool is drawn from a larger geographical area,
diluting any home-field advantage a local plaintiff might enjoy.
Discovery & Fact Investigation
From the time a case is filed, your lawyer will be gathering information
from you about the facts, interviewing company witnesses
and reviewing internal documents. Discovery is the opposite of
that process: each side seeks information from the other, or from
third parties, and each responds to the opponent’s requests for
information.
Discovery may take place via “interrogatories” (written questions),
“requests for production of documents” or “requests for
admissions.” It may also take the form of “depositions”—pretrial
testimony before a court reporter, often on video. The plaintiff
has broad leeway to inquire about anything “reasonably calculated
to lead to” the discovery of admissible evidence. If you’re involved
in the design, testing, manufacture, marketing or stewardship of
the product, you can expect to be called on for documents and
deposition testimony as part of the discovery process.
The plaintiff conceded that she’d read and understood the flammability
warning on the product container.