HANDLING, LITIGATING AND TRYING A CRASHWORTHINESS CASE
By Theodore J. Leopold, Esq.
Since its recognition more than 30 years ago, the crashworthiness doctrine has become a central tenet of products liability law. The doctrine applies principally in so-called "second collision" or "enhanced injury" cases involving automobile crashes with two distinct "collisions." The first collision causes the accident itself (vehicle A hits vehicle B). The second collision causes the plaintiff's so-called enhanced injuries (during the impact with vehicle B, the driver of vehicle A strikes the interior of his vehicle and is injured or killed). The crashworthiness doctrine simply holds that the manufacturer of the vehicle is liable -- in negligence and/or strict liability -- for the enhanced injuries sustained from the second collision.
"Enhanced injury" or "second collision" claims address automobile safety and stability features that fail to provide an occupant reasonable protection from injury, regardless of the cause of the crash. Courts have universally imposed a duty on manufacturers to design their vehicles to provide reasonable occupant protection in crashes. This theory has been adopted across the nation to condemn a host of unsafe automobile design decisions.
There are many aspects to prosecuting a successful crashworthiness case. Below are concepts that hopefully will lead you down the road to success.
A. Analyzing the Crashworthiness Case
The initial investigation of a crashworthiness claim is crucial. Because of the complexity and cost of these cases, it is critical to make an informed evaluation at the outset. There are three major considerations for an attorney considering representation of a crashworthiness plaintiff:
- Damages: With the astounding cost of automobile product liability litigation -- in some cases up to $1 million or more -- the potential financial remedy to the client must far exceed the projected cost of litigation. Paradoxically, the worse a client's injuries (e.g., paralysis, brain damage, debilitating orthopedic injuries, or death) the "better" his crashworthiness case. Unfortunately, cases involving even serious but non-catastrophic injuries are simply not financially viable. If a potential client is walking, talking and has little physical impairment or disfigurement, he simply may not be injured "enough" to be bring a crashworthiness claim.
- Liability: Automobiles are complex machines with thousands of parts. So although Ford designs and manufactures the F250 Truck, the vehicle includes systems (like airbags), components (like tires), and parts (like timing belts) sourced from other manufacturers. As a result, it is important to identify precisely what caused the client's injuries and which of the manufacturers that contributed to the vehicle might be liable. Focus cannot be limited to the vehicle manufacturer alone.
- Coverage Questions: No matter how severe the damages or how clear the liability, the client will be left without redress if the defendants are insolvent or lack insurance coverage. This is rarely a problem with major manufacturers, who are almost always self-insured. With smaller companies such as component suppliers, however, it is a consideration that must be accounted for.
B. Investigating the Crashworthiness Case
Once you have analyzed the claim and have decided to proceed, the race is on! And the investigation process is most certainly a race -- against time, the environment, the insurance companies, the salvage yards, and memory loss of all potential witnesses. Your investigation and factual search may be the client's only opportunity to determine what actually happened and who is responsible for their life-altering injuries.
Once you've decided to investigate a crashworthiness case, the following steps are critical to getting started:
- Hire an investigator.
- Survey the accident scene.
- Locate and store all of the vehicles involved in the collision.
- Retain an accident re-constructionist to inspect the scene and the vehicles.
- Obtain key medical records (i.e., those bearing on the injury).
- Police report/homicide report and photographs
- Medical Examiner's report and Medical Examiner's investigative file.
- If necessary, retain a biomechanical engineer.
- Obtain vehicle specifics - ownership history, service history, accident history.
- Obtain information regarding similar make and model vehicles - recall notices, manufacturer's service bulletins, consumer complaints, NHTSA preliminary evaluations, NHTSA engineering analyses, NHTSA defect investigations, compliance tests, new car assessment (NCAP) test, press releases, and manufacturers' internet website.
This information will allow you to gauge the strength of the liability claim - What was the defect? How did it cause the plaintiff's injuries? Was the plaintiff negligent? Did that negligence contribute to the injuries? You must have answers to these questions before proceeding into litigation.
C. The Pleading Stage
Crashworthiness claims should be pled expansively but with as much detail as possible with respect to the defects at issue. Expert consultants and witnesses can help you formulate allegations to accurately identify all possible mechanisms of failure. Pleadings should encompass all possible theories of recovery against all possible defendants.
D. The Discovery Battleground
Despite efforts by the Bar and Judiciary to "civilize" the litigation process, discovery abuse continues to be a practical problem for plaintiffs facing corporate defendants. Although designed as a means to "search for the truth" and "encourage early resolution of disputes," the integrity of discovery in crashworthiness cases all too often depends on whether the trial judge is willing to hold a manufacturer's feet to the fire. Plaintiff's attorneys need to assist judges in this regard by using thorough and precise discovery requests followed by aggressive motion practices to challenge the manufacturer's inevitable (and mostly frivolous) objections. It is also important to be mindful of the following common discovery battles you will likely have to wage:
1. Protective Orders
It is important to carefully scrutinize manufacturers' proposed protective orders. Do not agree to a protective order unless it (a) puts the burden on the manufacturer to establish confidentiality, and permits the plaintiff to challenge confidentiality claims; and (b) provides for sharing of documents with counsel in similar litigations.
2. Substantially Similar Vehicles: Discovery about "substantially similar vehicles" is always important and hard fought. Manufacturers attempt to narrow the scope of discovery by refusing to produce information regarding anything other than the particular make and model at issue. Case law is clear, however, that plaintiffs can obtain discovery on "substantially similar vehicles" if it meets the normal relevancy requirements. For example, in the area of crash tests, some courts have permitted discovery of test results for a wide variety of vehicle models where the purpose of the discovery was to evaluate what the manufacturer knew about crash performance of its vehicles in particular types of accidents. Likewise, "generic tests" done to evaluate safety are discoverable even though the test is not done on a particular vehicle.
3. The Reading Room
Instead of producing documents, defendants will request that you visit their "reading room" to review discovery materials. There is no provision in the rules for the creation, operation or maintenance of a "reading room." Reading rooms are truly a creature of strategy. Unless handled properly, reading rooms can become a logistical nightmare.
If a reading room is offered, I would suggest the following, at a minimum: (a) demand a complete and thorough index; (b) demand a specific response to your request for production and require that the materials be produced in the order in which they are kept, or produced and labeled in order according to each request; (c) if documents are offered in response to interrogatories, make sure that the records are "specified"; and (d) demand a reasonable opportunity to inspect and copy at the scene.
4. Consumer Complaints
In the course of discovery, you also want to make sure that you request consumer complaints, lawsuits and other documents relating to the vehicle defect(s) at issue. There is no better evidence of a product's defect than evidence of its previous failures in the field.
5. Dealing with Striped Documents
Unfortunately, Defendants often produce documents on striped paper, which can blur the writing, obfuscate potentially important information, and distract the jury during trial. Plan on raising this issue with the judge and address it early in the process. The vast majority of judges will have little difficulty in sustaining your objection to any attempt to conceal documents in this manner.
6. Judges Who Won't Pay Attention
Some judges unfortunately do not have the time or patience to focus on the many inevitable discovery problems/abuses in crashworthiness cases. In these instances, it is important to narrow the disputes to only the essential issues, choose a particularly deceitful example of abuse, and give the Court the opportunity to choose to get involved to right a wrong. If the Court reaches the conclusion that you are overreaching or being unreasonable, you have absolutely no chance of gaining control over discovery.
E. Trying the Crashworthiness Case
1. Preparation and Organization
There is no magic formula to trying a crashworthiness case. What you can be assured of is that you will have unlimited resources on the opposite side working against you. Due to the complexity of the issues and the vast amount of information and documents, it is imperative that you be extremely organized. The trend in trying crashworthiness cases is to shorten, rather than lengthen the trial. There was a time when crashworthiness cases took 4 to 8 weeks to try. Many Judges today are not willing to allow the parties to take up their calendar and time for this long a period. Additionally, it is getting more and more difficult to find jurors who are willing to sit on a case that is going to take them away from their work and families for an extended period of time.
2. Focus Groups
Focus groups can often times be of great assistance to simplify the issues for trial and to streamline your trial presentation. Focus groups can also give the attorney an opportunity to revise or expand his or her presentations and themes to address problems identified in the focus group. The overall goal of a focus group is to improve case presentation and trial tactics so as to achieve maximum impact on the jury. Jurors and attorneys do not always target and define as problematic the same areas, do not always see as central the same issues, and do not always see as effective the same theories. Focus groups can also be beneficial in helping you understand and develop a juror profile.
3. Demonstrative Aids
Visual aids and demonstrative exhibits, as well as computer technology, are essential in presenting a clear and defined presentation for the jury. Computer programs such as Trial Director and Power Point are beneficial in showing and explaining to the jury the issues. Additionally, bringing the product at issue into the courtroom is a dramatic way to reinforce the issues being tried.
F. Legal Issues
1. The D'Amario v. Ford Factor
Even though the crashworthiness doctrine itself is relatively straightforward, some aspects of its application are not. Foremost among them is whether a manufacturer can reduce its liability for a victim's enhanced injuries by apportioning fault among those parties who caused the initial collision. Two lines of cases have emerged in this hotly contested debate. The majority view holds that a manufacturer's fault in causing enhanced injuries may be reduced by the fault of those (i.e., the plaintiff or third parties) who caused the initial collision. The minority position, by contrast, maintains that because a manufacturer is solely responsible for its products defects, it should also be solely liable for the enhanced injuries caused by those defects.
In November of 2001, the Florida Supreme Court firmly embraced the minority position in D'Amario v. Ford. In that case, the Court held that defendants in crashworthiness cases may not assert comparative negligence of the victim or any third party negligence relating to the initial accident (under Fla. Stat. §768.81, Fabre v. Martin, 623 So.2d 1182 (Fla. 1993), or otherwise) to reduce its responsibility for the Plaintiff's enhanced injuries. The Court explained that:
[T]he automobile manufacturer is solely responsible for the enhanced injuries to the extent the plaintiff demonstrates the existence of a defective condition and that the defect proximately caused the enhanced injuries. Thus, an automobile manufacturer who allegedly designed a defective product may not be held liable for damages caused by the initial collision and may not apportion its fault with the fault of the driver of the vehicle who caused the initial accident.
D'Amario, 806 So.2d at 441 (emphasis added).
D'Amario and its progeny are required reading for anyone handling a crashworthiness case in Florida.
