opined that the pattern of the boy’s burns was consistent only
with the burning of the T-shirt itself—not with the area of application
of the sunscreen.
Motions & Pretrial: Narrowing the case
Pretrial motions give a defendant the opportunity to end or significantly
narrow a product liability case. We made three motions.
In a “motion for summary judgment”—one that asks the court
to rule that there are no genuine issues of material fact for a jury
to decide—we pointed out that the plaintiff had offered no proof
of a design or manufacturing defect, that her expert witness had
not opined on the causation of the boy’s injury and that our
expert had effectively proven the sunscreen could not have caused
or contributed to the accident. Unfortunately, the court denied
this motion.
In a second motion, we moved to exclude the testimony of
the plaintiff’s expert. We argued that he’d ignored the obvious
alternative cause of the accident, had analyzed only the individual
components of the product and not the sunscreen product itself
and had not tested the facts alleged in the complaint. Such a
motion is known as a Daubert motion, after the U.S. Supreme
Court’s landmark 1993 decision in Daubert v. Merrell Dow Pharmaceuticals.
Daubert is the law in the Federal courts and the courts of
approximately 40 States.
The outcome of Daubert motions can make or break a product
liability case. Daubert requires the trial judge to act as “gatekeeper,”
screening out unreliable expert testimony before it can be
heard by a jury. A Daubert victory severely hampers the plaintiff’s
case and may give the defendant the upper hand in settlement
negotiations. Indeed, if expert testimony is excluded on issues
that require it, the court may even grant summary judgment.
However, in our case, the court denied this motion in large part.
Finally, we filed a so-called “motion in limine” (meaning “at
the start”) to exclude evidence of our client’s 2012 withdrawal of
another sunscreen product from the market. The plaintiff’s focus
on this product, we contended, was a case of mistaken identity:
it was an alcohol-based product, unlike the water-based product
at issue in the case, and had been withdrawn due to problems
unique to its alcohol base and its larger nozzle opening. Thus, the
two products were not “substantially similar,” and evidence about
the 2012 withdrawal might confuse and prejudice the jury. The
22 Spray April 2020
court granted this motion. This was a crucial victory; it meant
that the jury would not hear of earlier episodes of consumers being
burned after applying spray sunscreen.
As the trial date nears, the court will order several pretrial
filings. These might include a trial brief, a witness list, an exhibit
list, proposed “voir dire” (jury selection) questions and draft jury
instructions. This is a fast-paced and expensive time. Counsel
must quickly pull the whole case together, combine theme and
evidence into a compelling narrative for lay jurors (craft the
“jury story”), cull exhibits from perhaps thousands of documents
produced in discovery, prepare fact and expert witnesses to testify
and address any lingering legal issues.
Resolving the case
Our case ultimately settled, as most product liability cases do.
Settlement may occur in any way that the parties’ counsel can
interact: on the telephone, by mail or email, over lunch, well
before trial or “on the courthouse steps”—even during trial. In
some cases, settlement is achieved with the help of a professional
mediator. Ours settled after a day-long mediation with the court’s
Magistrate Judge.
Our mediation process was typical—written mediation statements,
face-to-face time with the plaintiffs and their lawyer, confidential
sessions with the Magistrate Judge in separate conference
rooms and a continuing exchange of offers and counter-offers.
Reaching a settlement requires a thoughtful, objective evaluation
of the defense and the risks of trial. We believed we had a
safe product, a strong theme and jury story, solid legal authority,
questions about the plaintiffs’ credibility and the better of the expert
dispute. On the other hand, we were faced with a sympathetic
plaintiff who had sustained serious injury and disfigurement
and had $600,000 in medical bills. Our client had a palatable
settlement figure in mind and we settled at that dollar amount.
The settlement agreement was, to use a term in the news
of late, a quid pro quo. The defendant paid the specified settlement
amount, either immediately or in a so-called “structured”
settlement over time. In exchange, the plaintiff fully released the
defendant from all claims that were or could have been brought
as a result of the events alleged in the complaint. The agreement
typically states that the defendant admits no liability or wrongdoing.
Ideally, there is a confidentiality clause: neither party will reveal
the settlement amount or any of the offers and counteroffers
that led to it. Many defendants will also seek a non-disparagement
clause, stating that neither party will publicly criticize the other in
connection with the case.
These are the basic rules of engagement. Armed with this
knowledge and evidence of good corporate conduct and a safe
product, you’re ready to help defend your company. Spray
Anatomy of an aerosol
product liability lawsuit
Time lapse fire testing still images show both Hanes brand and Fruit-of-the-
Loom brand cotton T-shirts with both sunscreen applied and no sunscreen
applied.