Defective Product Lawsuit: 5 Types of Claims & How Lawyers Prove Them

[0:00] Welcome back to Navigating Negligence, the Phillips Law podcast where we talk about real world issues, real world cases, real trial strategies, and real discovery strategies. I’m Stephen Phillips. This is Michael Phillips, my brother, and Alec Mesrobian, one of our other attorneys. And today, as you can tell, we don’t have Steve, but we have Alec and Michael with us. And we’re going to talk primarily about product liability.

[0:46] But first, I’d like to give Michael and Alec an opportunity, again, to reintroduce themselves. I know they were on prior issues or prior volumes of our podcast, but Michael. Hi, everyone. Michael Phillips, I’m Stephen’s younger brother. But before I give more introduction to myself, I just want to say Stephen, congratulations. Last night, Chicago Law Bulletin awarded him 40 under 40. This is an award for 40 of the best young lawyers under the age of 40 in the state of Illinois. And it’s not an award that’s just given out freely. In fact, I think they had 1,500-plus nominations, and Stephen was one of those recipients. So it’s truly a merit-based award that Stephen deserves recognition for.

[1:27] Thank you very much. I appreciate it. And there’s not a lot of awards where you actually say, I want that award. You don’t want an individual award. You want a team award, kind of like in football. But this is one that I actually really did want and hope to one day win, because it is still a meritocracy. It’s not an award that you can pay for. It’s not an award that can be bought. It is based on recommendations from older lawyers who have seen you kind of grow through the ranks. So thank you very much. I appreciate it. And I’m Alec Mesrobian. I’ve been with this firm for 10 years, started as a clerk in college. And they’ve kept me around. And I’m grateful for that, because I get to learn from Stephen, and I get to work with Michael and Steve and Terry, some of our other attorneys in the office. I think we’re going to have a good podcast today talking about products cases, medical negligence cases, and give you guys some insight on how to go about those cases.

[2:27] Alec is an incredibly driven, incredibly hardworking young attorney in our office, and so is Michael. And the two of them were today going to talk with you guys about, as we’ve said it before, product liability. But really, what is product liability, and what does that mean, and what types of cases are those? So a lot of people don’t know this, but there’s multiple ways that a manufacturer or somebody who designs a product can be held responsible. And it’s something that we don’t see as often anymore. And I think that in large part, and I don’t know if you guys agree, but I think in large part, that’s due to the trial lawyers, and due to lawsuits the manufacturers understand now and distributors understand now, not like they did in the 60s, 70s, and 80s, but that they have to manufacture safe, reasonably designed products. So there’s been a significant decrease in the number of products liability cases around the country. I think in large part to the work that we have done and that the juries have awarded to show folks that if you’re going to manufacture a product and put it to market, it has to be safe.

[3:37] So and that’s a good thing. Yeah, that’s a really good thing. So Alec, why don’t you tell us about the types of product liability cases? And what do we mean when we say product liability? Yeah. So obviously, we have manufacturers in the US and abroad, and they make certain products, whether it’s cars, things for the house, cribs, anything like that medicine, sure. Sometimes those products are not safe. And they can cause injury to people. We’re going to talk about a case a little bit later about the Ford Pinto that those were made, I think in the 80s was a car. But there are cases that involve these products that are placed out into the market that cause injury to people. And more often than not, I think in these kind of cases, you see some of these manufacturers cutting corners a little bit. You know, we have that saying profits over people. Injuries can happen when you put profits over people candidly in these product cases. Yeah. And there’s a couple different types or a few different types of products cases. Michael and I are working on a case right now that’s, it’s not quite a products case, we’ll talk about it, it involves a trampoline park, air court type device that your kids may go to or that maybe you’ve seen on TV. Michael and I are, that’s kind of more of a general negligence case, but there’s a bit of products liability to it because the parent company designs their own rides or amusements and then tells the franchisees or their daughter companies how to create the product, how to design it, how to construct it.

[5:19] And one of our allegations is that the design in and of itself was flawed. So we’ll talk a little bit about that. But let’s talk about the types of products liability claims that we’ve brought in this office and that you can bring. The first type I think is strict liability. So Michael, tell us about your experience with strict liability. Sure. And for the folks at home, strict liability is a, I guess let’s put it this way, there’s three different types of cases that you can have. You can have an intentional tort, you intentionally did something. Negligence, you fail to act as a reasonably careful person. And then the third is strict liability, which disregards what your intent is or if you are negligent. It’s kind of like, if something happens, it falls on you. And there’s a good public policy reason, I think, for that. It’s that if you’re going to be a big multimillion dollar manufacturer and put your products out into the public for profit, you don’t get certain. Second chances. Yeah, you don’t get a do over if you cause harm. So strict liability says regardless of why it happened, who was negligent, who may have messed up, you’re on the hook. Yeah. And there’s a few elements of strict product liability. And negligence, you look and say, was the person reasonably careful? Did the company or did the person act as a reasonably careful person? In a strict products liability case, you don’t look at the intent, whether they did it intentionally, you look at one, whether the product was defective when it left the manufacturer’s facility. Two, was the product unreasonably dangerous when it went to market? Three, is there causation? Did that cause the injury, which in most cases it did? And then four, that the product wasn’t altered or changed or manipulated at the time that it hurt the person. So if you can show all of those, it’s defective when it left the manufacturer, it’s unreasonably dangerous, it caused the injury, and it hasn’t been altered or changed. That’s strict product liability. And that’s oftentimes broad in these cases, sometimes difficult to prove. But that’s kind of the first type of claim you can bring in a products liability case. Yeah, it’s not, it’s not as cut and dry as you may think. I mean, you’ve listed four elements, right? The product was defective. It was defective when it left the manufacturer.

[7:43] The product was used in the way that it was supposed to be used and that it caused injuries. I mean, from a macro level, it sounds pretty simple. But the nitty gritty of it, it’s it’s difficult to prove. Right. And it’s hard to prove sometimes that it was defective or unreasonably dangerous when it left the manufacturer. Because oftentimes there is testing and there is data on it that the manufacturer did showing, hey, we thought this was safe when it left. Right. And it can also be complicated because a lot of companies aren’t doing from point A to point Z all of the construction of a product, they may be getting parts from someone, they may be just a distributor, and then it becomes who’s actually designing the unsafe product or who’s using the product in an unintended way. And job as a lawyer is to kind of hunt that down. And that can be a lot of work and expenses. Yeah. And oftentimes, like you said, if it’s a product, for example, a piece of lawn equipment, we had a case involving a lawnmower that caught on fire, there might be 20 or 30 or 40 different manufacturers who contribute the component parts, the engines designed and built by somebody else, the bushings are manufactured by somebody else, the blades are manufactured and installed by somebody else. So sometimes you have 4567 defendants because you don’t know exactly which person caused or which, which component piece of that product was defective, which kind of good. So I think in that, in that case with the lawnmower, one of the gas caps of the lawnmower was a foreign made gas cap. And I remember we had to do a lot of discovery to figure out who made it when it was manufacturers. How did it come to the US? Why was it a part of this actual lawnmower? So that’s just one example of sort of the intricate nature of these product cases. We were doing zoom depositions at four in the morning with a translator. I remember that very well. Yeah, it was a foreign company. I don’t know if they can’t recall if they manufactured the cap or a part of the cap. But it was a manufacturer, you know, 10 time zones away. And we had a translator translating, we had probably 10 lawyers involved.

[9:57] We had the court reporter and videographer, and it was five in the morning in the dead of winter. Stephen and I still live together at the time. Pretty sure I brought him a couple coffees, but we did that at the office. That I was in the office, you may have not I may have been working from home. I think I was working at home. This was that was before work from home. Yeah. And I give Steve senior a lot of credit on that one, because that was not an easy case. And that was actually a very hard case to prove. But that was a 16. And that kind of goes into our next claim, right? So we talked about strict product liability. The next type of claim you could bring is called a design defect. The design itself of the product was defective. And that was kind of our primary theme in that case. And that was a lawnmower. We had a young kid, he was about 16 years old, who was mowing the lawn for money during high school, you know, for a summer job.

[10:50] And it wasn’t his lawn, it wasn’t his lawnmower. It was a neighbor or friends. And the lawnmower stopped running. And the neighbor, the adult said, Hey, why don’t you check the gas? Maybe it’s out of gas, open the gas cap. So our client 16 years old at the time, opened the gas cap, and he heard a hissing. And the hissing went on for just a few seconds. And then all of a sudden, he was engulfed in a flame or fireball of fire. And he suffered really bad burns. He made a very good recovery for how bad it could have been. But at the time, he didn’t realize when you get burned, you don’t realize how bad it is a lot of times. And I remember he ran and he jumped in the neighbor’s pool. And he just swam in there was nice and cold until EMS got there. And it was kind of a fireball he wasn’t on fire. It was more so just a burst in his face and his upper body. And I remember he went to the hospital, he was awake, alert, coherent. And you know, his parents testified that the doctors told him, this is going to get really bad. And we need to intubate and sedate your son, because he’s going to have terrible burns. It’s just a matter of time, it takes a few hours for it to set in. And he didn’t look that bad initially. But then over time, you start to blister, there’s nothing worse than being burned. And I remember that his treating doctor, one of the burn surgeons who helped him said, there’s a reason why in many religions, there’s an idea that heat or flames are the worst of the worst. And it’s because burns, you can’t even imagine the pain that one experiences. So that little kid had to go through that. And our claim was in part that the design of the lawnmower was defective. And we had to put hours and hundreds or thousands of hours into proving that. Do you remember what Steve was able to show and through discovery, what we were able to show that this was not a one off thing, that this company, this manufacturer had a lot of fires in the past involving similar circumstances. And that’s a big thing in these products cases is that Alec and I or Stephen and I, when we’re taking case calls, we’ll get someone who calls and says, this product caused this airbag hurt me or this product hurt me. If there’s not other incidents of it, it’s going to be an uphill battle proving that this manufacturer has a problem and knew about the problem, or that it’s not some other alter alteration. But in this lawnmower case, this company had many instances just like this. And it shows that this is not a coincidence.

[13:41] And one of the things I remember well about that case too, is we did an inspection of the lawnmower. And we had found when we did the inspection, we started, you know, with everybody present, we started taking apart the lawnmower. And there had been alterations, the homeowner had made alterations to the product. And the defendants, when they saw that they were giddy, they love that because they wanted to say, hey, well, the homeowner was a defendant himself, but the actual manufacturers and the component part people, they all love to see that that there had been alterations because then they said, hey, we’re off the hook. And I admit when I saw that I was pretty dejected too. And Steve basically looked at me and said, you know, get your head in the game, we’re not going to quit. It was reasonably foreseeable that something like this could have happened to the lawnmower. And what had happened is the manufacturer had backed the the lawnmower up, the homeowner had backed the lawnmower up into a pole or something in his driveway and had bent the exhaust a little bit. And what Steve was saying was basically, that can happen. I mean, the lawnmowers go outside, they get a lot of use, things happen. And if you’re going to design a product, you have to design what could go wrong in mind. It’s reasonably foreseeable that you could have an exhaust tube that gets a little bent or damaged and somebody tries to repair it. And one of the themes of that case was redundancy. You have to build in redundancy in your products. And what redundancy means is fail safes. What we were able to show in that case is that the cap wasn’t a vented cap. And if the or I can’t remember if it was or wasn’t. But in any event, basically, if the cap gets clogged, or if the cap isn’t venting, there was nowhere for the pressure to release. So it created a geysering or a super heating of the fuel tank. The fuel tank got super, super, super hot, the gas got very hot. And that’s why our client heard that hissing when he opened up the cap, he heard that all that unreleased pressure. Exactly. And the manufacturer didn’t build in anything in case the exhaust got damaged or the cap got closed off. They didn’t build in anything. And all they needed was a pressure relief valve. And a pressure relief valve releases pressure. If it’s too much pressure, it releases that fuel or the pressure from that fuel. And they didn’t have that. And that’s what we were able to show. And that wouldn’t have been expensive to do. To put that in? Yeah, it would have been a couple dollars probably. Yeah, but they chose, you could argue they chose profits over people. Or they just didn’t do enough testing or didn’t have the forethought to think that. But that’s one of the things if you’re going to manufacture products like that, especially with fuel and gasoline and oil in them that you have to consider.

[16:31] So that’s what’s called a design defect. Can I add one more thing? I forgot to mention it earlier, when we found out that this lawnmower company had a lot of other fires, that wasn’t an easy task either. It wasn’t, hey, tell us about your other instances. Okay, here you go. We were going in and out of court. They’re objecting. It’s not relevant. It’s not going to lead to anything. It’s inadmissible. All of the excuses. It’s usually a reason they don’t want to turn it over. And when we finally got the spreadsheets of all these instances, it completely flipped the case. Right. Yes, you, you have to try to find other instances, because usually it’s not a one off. You know, usually there are other people who’ve been hurt. So that’s design defect. The third type of claim you could bring is what’s called a manufacturing defect. And they’re probably at this point, a little less common, because a lot of things are automated or robotic now. So there’s less margin of error, or there are less errors in the way things are manufactured. But Alec, why don’t you tell us about what a manufacturing defect is? Yeah, yeah. A manufacturing defect, you know, it’s inherent in the name, there’s something in the assembly or the manufacturing of this product, that’s caused it to be defective. And so an example of that would be, if there’s a piece of metal that has to be attached to a certain product, and that assembly line, you know, if that piece of metal has to be six inches, that assembly line is making it four inches, for example, and is putting that piece into a product, that can be dangerous. You know, that’s one example of a manufacturing defect, where it’s a repeated instance of a malformation in the manufacturing of that product. In those instances, is it the actual putting together, the assembly is going off course of what was intended, and just no one catches it and it goes out to market without that correction, typically. Yeah, yeah, I think more often than not, that’s what you see. And sometimes it can be a small defect, you know, if it’s an airplane, those measurements are millimeters, if it’s an engine, those could be millimeters. And it might be just a small defect in the way that the robot assembles it, or the human assembles it, or punches it, whatever it may be. But a few millimeters on an airplane or on a train or car might make a world of difference. And it’s sometimes it’s not even a big batch. I mean, it could be like one plant for one day that the calibration on the machine is off. And all of a sudden, you have 1000 units going out to market out of a million, you know, it might only be 1000 out of a million produced that year, but those 1000 are going to be defective, because that machine wasn’t calibrated that day.

[19:09] Those are a little less common, I think, because there are some good checks and balances usually with these sorts of things. But we’ve had that before, too. And then the fourth type of claim you can bring, I would say, well, there’s probably five, but four would be something like a breach of warranty type claim, or breach of merchantability. What is that? What is that? A breach of merchantability or warranty is basically that the product has been warranted to do something. The manufacturer says this product can do A, B, C, and D, and it doesn’t do that.

[19:50] So I think the example they taught us in law school was downhill skis. And I don’t think it’s a great example, because I think skiing in and of itself might be inherently dangerous. Assume the rest is using those products. Exactly. Now you sound like a defensive turn. But if a product is warranted to do something, and it says, hey, this product can withstand, for example, this product, it’s a helmet for skiing, and it can withstand blows up to 60 miles an hour, and you’re going 20 down the mountain, and you hit your head, and the product fails, well, you can say, I wore this because it marketed itself as being safe to 60 miles an hour, and I’m a fast skier. Now, again, I don’t think that’s a great example, and I think there’s a lot of variability in that. But that idea, if the manufacturer tells you this is good up to a certain caliber or level, and it doesn’t hold up, that’s a warranty or guarantee they’ve given that they’re not holding up to. That’s a breach of warranty or merchantability.

[20:53] And then the final type of claim? You have a marketing defect. So there’s something in the product that they’ve failed to warn you about, or there’s been inadequate warnings on the actual product. That’s the fifth claim I think you could bring. But more often than not, that fine print you see on all the products you buy from the store or from any other shop or- Prescriptions. Yeah, prescriptions. They’ve been in the game long enough to know the warnings they need to put on these products. And so I don’t really see those as much anymore, I’d say.

[21:28] Yeah, you can certainly bring them. And I think that there’s some data that shows nobody reads those candidly, what average consumer is reading fine print warnings. Sometimes the manufacturers say, well, if we put too many warnings, if we put 20 warnings, it actually dilutes the warning, and people don’t read it or don’t pay attention. So that’s why we only put the big three on there, because people will actually read them. If we were to put 20 different warnings, nobody’s going to read it. So those are more difficult claims to bring, but they are possible. So we talked about the McDonald’s coffee cup case, I think, in our first episode. Why don’t we talk now about probably the most famous product liability case?

[22:16] Some people may know about it, some may not. Why don’t we talk about the Ford Pinto case? I think the Ford Pinto case probably has less notoriety than the McDonald’s case, but an important case nonetheless. It was 1980. I think the case happened in I think it was 70s. 70s? 70s. Case was filed in California. And Ford back in the day was making these cars they were they were called the Ford Pinto. And they were supposed to be a car that was affordable for people was supposed to be their secondary car. I think they were selling them back in the day for two or $3,000. The issue with those cars is the gas tank was placed all the way in the back of the car, it was there was a nine inch buffer from the rear of the car to the gas tank. So, you know, if you get into a rear end collision, you only have nine inches of buffer until the impact could possibly hit that gas tank. And so Ford knew about this. This designed the effect of their cars because it was causing a lot of injuries, you know, when you’d have that impact, there’d be an explosion. And so I think the the Ford Pinto case specifically was Grimshaw v. Ford had a young kid in the front seat of the car, and an older lady in the in the driver’s seat, and the kid ended up dying because they were involved in a rear end collision, the car had stalled out. They were involved in a rear end collision. And because there was only nine inches of buffer that caused the gas tank to explode after the collision. There was a huge punitive award in that case that I think ended up getting reduced. But what’s a punitive damage verdict?

[24:02] Yeah, so so punitive damages are essentially meant to punish a defendant for for wrongdoing, and to deter future bad comments. Exactly. And in that case, because Ford had known about this design defect, but said, you know what, this this car is selling, we’re just going to push the marketing of this car, the jury ended up awarding, I think, $125 million in punitive damages. And about three, two and a half, three million in compensatory damages. So the jury heard evidence of all of this stuff of Ford cutting corners and marketing this unsafe car, and hit them with a huge punitive award, especially in the 70s. Yeah, that’s an enormous award, which unfortunately was reduced significantly. But the case ended up settling for a lot of money after that, I think during the appeals process. The key in that case, though, that really set that case over the edge was what’s called the Ford Pinto memo. And what the lawyers in that case, and I think it actually may have been with the help of law students or some sort of, I can’t remember if it was like a legal aid clinic or law students, but somebody somehow got their hands on one single piece of paper, or maybe even two. And it was a memo. And it was from the engineers or marketing team, something at Ford, and it had a calculation on it. And it was basically, they knew about these fires, because other people had been burned or hurt or killed. And they said it’s going to cost us whatever, nine or 10 or $50 to replace the fuel tank on all of these versus paying off the families of all the people that are likely to be hurt in the future if we don’t do this. And there was literally a math equation. And the number to pay off the families was lower than what it would have cost them to go fix the fuel tank. And Ford had made the decision to basically say, hey, we’re willing to roll the dice here and pay off the families even into the future, because we’re not paying the nine or $50 or whatever it was cheap to replace this fuel tank. And they knew about it. And they had documented it in a memo with, you know, here’s on one side what it’s going to cost to fix it. Here’s on the other side what it’s going to cost to pay the families off. And that was like the watershed moment in that case, and really became national news that this is how some of these companies are operating. And that memo, that’s basically why they were able to ask for punitive damages for the folks at home. Punitive damages are a big deal. Punishment deterrence damages. You have to go to the court and say, Judge, we have a reason to ask a jury for punishment or deterrence damages that are unrelated to the physical injury suffered by my client. In a medical malpractice case, a doctor uses a medicine that 95% of other doctors wouldn’t use. Very clearly a mess up. That’s not punitive damages. Car crash, running a red light, that’s not going to be punitive damages. It’s a big deal to get those. And that’s what they were able to do in this case after getting the internal memos that showed that Ford basically shrugged their soldiers and said, we’re okay with this because we’re making money. Yeah, and I think, you know, this case was important because it was a strict liability case, right? And so the court, I think, grappled with allowing the punitive because the liability had been decided upon or it wasn’t based on intent. Right, right. To get punitive damages, you have to show a higher level of conduct typically. So there’s negligence, which is just, were you reasonably careful? And then there’s called willful and wanton or intentional conduct, where you have to show even a higher standard, basically that they were grossly negligent, that they were aware that this was happening and continued to do nothing about it.

[28:00] Only then can you go to the court and say, Judge, we like to ask for punitive damages. You don’t just get to waltz in a trial in front of a jury and say, we’re going to ask you for punitive. The court has to give you the okay to do that. And then that also allows you to change kind of your trial strategy. There’s certain arguments you’re not allowed to make in a general negligence case. You’re not allowed to go in there and tell the people on the jury, you need to punish these people. This needs, you know, you guys need to deter this. You guys have to send a message. You’re not allowed to do that. So you can only do that when you have willful and wanton conduct in play and punitive damages. Then you can change your whole theme of the case and make it less about your one client who was injured, and more about what the company knew and that you guys on the jury need to tell the company and send a message. This stops here, which completely changes the dynamic of the case. So that’s really if you can get punitive damages on the table, that’s very scary to defendants as it should be. Do you imagine that memo in the 70s? I mean, it’s not like everything saved electronically to actually get that memo.

[29:08] Probably a hard copy. It was a hard copy. Yeah. Yeah. And I think some of it may have had handwriting on it. Yeah. And to just find that in a stack of 1000 pages of paper. Yeah. Okay, so we just talked about the Ford Pinto. Now, you can imagine how a case against one of the largest automotive manufacturers in the world would probably get pretty expensive and would probably be pretty complex. So let me ask you this question based on your experience with these types of products cases, why are they so complex? And why can they get pretty expensive to bring? Yeah, and I may have hinted at this earlier about these cases, we can’t take these one off cases a lot of times, because they’re expensive. They’re expensive because you have to go through a lot of documents, a lot of internal memos. The other side is typically a big corporation with a lot of money and a lot of lawyers, so they know how to delay litigation and obfuscate the process. You need to hire experts, experts aren’t cheap experts will come in and testify as to engineering standards, manufacturing standards, things like that.

[30:17] Those are some of the big ones. Yeah. And there was I was at a conference recently where there was a guy who was talking about he was trying to show that a pickup truck was negligent, or not negligent was designed defectively. Because when it flipped over onto the hood of the truck in the event that it flipped, it crunched too easily, or there wasn’t a roll bar that was sufficient or words to that effect. And I remember he had to go out and buy like five of these pickup trucks brand new, and do testing where he flipped them on their their head. And I can’t even imagine destroy them literally, all five of them. And there was, you know, he had a bunch of experts, he didn’t take it to a lab where they had to do this on slow motion camera. And it was he said it was worth it for him because they were in the middle of the case. So I don’t know what ended up happening with that. But his client was a quadriplegic, like 35 year old young man. So obviously, that’s worth it to figure out why did this happen. But unless the injury is pretty severe, oftentimes, you can’t really bring these cases because you end up spending hundreds of thousands, if not millions of dollars to prove them. And the injury just doesn’t warrant doing that. Because a jury is not likely to award a big verdict like that unless the person is seriously hurt. So that, you know, reminds me of another case we had just briefly in the office that wasn’t quite a products liability case kind of quasi products liability. But the case involving the young man who lost a few of his fingers on the escalator, I think Alec, you participated in the workup of that case. Why don’t you tell us generally what our theories were in that case? Yeah, yeah, it was a young boy. He was five at the time. And he got his hand trapped inside of the escalator and ended up taking off maybe two, two and a half of his fingers. And you know, now he he has sort of this club hand. One of the theories, you know, and this goes back to what we talked about earlier on cutting corners and profits over people, where this happened, this escalator, the code was from 1964. I think it was.

[32:31] And what do you mean by the code? The the escalator had a code to it. And it was not followed, you know, the code, the instructions on how the escalator should be maintained, how the escalator should work was a code from 60 years ago. And when you say code, you mean a government code, government code? Yeah, government code. And another big part of that case was this place had three independent contractors come to their facility and say, Hey, your escalators are out of date, they’re out of code, you need to modernize them, you need to update them. And this facility said, No, thanks. We’re not going to do that. Three independent engineering companies came to this facility and said, You got an update, and they didn’t. And that was a big, big piece of that case, because it allowed us to go to the judge, you know, we talked about punitive, it allowed us to go to the judge and say, Judge, this case warrants punitive is being brought. And the judge agreed.

[33:34] And that ultimately is what sort of tipped the scales and got us the case settled. Yeah, favorable settlement $10 million. And I remember there was a another lawyer at the beginning who said, you know, you’ll be lucky to get one or $2 million. And we ended up getting 10. And I think in large part, that was due to and it wasn’t easy to get that you remember, we had to send foreign subpoenas out to different states. We had their own the engineering companies that third parties that had come in and done these inspections, didn’t want to give us the documents, we had to file lawsuits to get those documents. I mean, it was a massive, massive undertaking and going through 1000s of pages of documents. And Steve did a really nice job on that case, to show that they did have the three prior who they brought in. I mean, these were people who they said, Hey, we’re going to bring in these third party consultants, and tell us what we’re doing, right? And tell us what we’re doing wrong. And the third party consultant said your escalators aren’t they’re dirty, they need to be modernized. And they didn’t do anything about it. They literally it says right in there deferred due to expense or work cost. Yeah, one of them to, you know, and I noticed this now, doing this kind of work, you learn about things that can go wrong. And so you’re very conscious about your everyday life in your everyday life. And one of the theories in that case was, they didn’t have an emergency stopping system on that escalator. And, you know, part of our thought process, well, hey, if they had had that, it would have at least limited the damage to this kid’s hand. Now, every time I go on an escalator, I look to see whether there’s a stop break, you still text us in the group chat about that. Yeah, I know I’ve sent photos to people in this office being like, Thank God that there’s an emergency stop break on this escalator. Because if there’s not, you know, a little bit of damage can turn into a lot of damage. And that’s what happened in that case. Yeah. And the young man, he was five, and he was with his mom and a nanny. And you know, little kids, little kids are hard to at times in public control. I mean, you can have your eye on them, you can be holding their hand event. But the testimony was that he had dropped a dinosaur toy or something like that. And he had quickly reached down to grab it. And that’s all it takes. And he got his fingers stuck in the escalator as it was going up. And his nanny testified that she everybody was looking for the big red stop button to stop the escalator. But they didn’t have that. And what they had was a tiny little, I think it was brown or gray button tucked away underneath the escalator where nobody could find it to stop it. So the kid’s hand went up for like another six or nine seconds before they were able to stop it. And you can imagine going, you know, six or eight or nine seconds more with your hands stuck in the steps of the escalator, the damage was much more severe than if they had that red stop button right there, which I guarantee you now every time anybody who listens to this goes out, they’re going to look for the red stop button on the escalator. Yeah.

[36:41] And products cases, in general, let me talk about this escalator isn’t inherently a product, but children are oftentimes the unfortunate victims of these foreseeable risks. And so in a lot of products cases, the products that gets quote unquote misused, well, it’s is foreseeable that a young child is going to misuse something. It just goes to show that you have to design out the danger, particularly when you know that infants, children, people who can’t comprehend danger as well, people, elderly people, you know, the office, I think did a really good job on that case. But Steve, in particular, I remember he was taking the deposition of one of the defendants experts who had come in who had tested the actual escalator and found that the steps were in compliance with another code, not the one from 1964, but another code. And so when you’re when you hear that, you go, Oh, boy, we might have a problem here. Steve went one step farther, no pun intended. Yeah. And asked him, Well, how many of these steps on this particular escalator did you test? And I think he said one or two. And that like 60 out of 60 or 55. Yeah, that completely shattered any defense theory that this escalator was in compliance with code because they tested one or two of the steps. Yeah. So it completely invalidated his credibility. Totally, totally.

[38:13] Yeah. Another product case example that comes to mind that we had in the office was, and this is a mass tort. I mean, this is a almost a tight type of class action, but all the damages are different. But I don’t know if you guys remember that there’s a manufacturer out there who was manufacturing products for women. And the products were mesh that were for women who were a bit older, and had issues with urinary incontinence incontinence manufacturers were putting mesh in almost like a hernia mesh, and we don’t have to spend too much time on the details of it. But long story short, the plaintiffs firms who were involved were able to get, you know, including our firm, were able to get emails, internal emails, that really truly make the hair on the back of your neck stand up and make you really upset. The manufacturers were saying things like, push this to market, you know, these women are cash cows, that was the term they use, cash cow. We know the testing isn’t there. But let’s roll. You know, we basically Oh, another one was, if the manufacturers of the mesh knew how we were using the product, they wouldn’t sell it to us. So make sure you don’t tell them why we’re doing this or how we’re doing this or words to that effect. Just really, really bad stuff. And that type of stuff I genuinely think needs to be public and cases need to be brought because that’s what eventually deters other manufacturers from doing things like that is going and getting those documents, putting these people on trial, you know, showing the farce that is that any sort of defense that they could have to that. And I think, again, that’s why you don’t see a ton of these Ford Pinto type lawsuits anymore, because these people have been either regulated by the government, sometimes regulations a good thing, and or lawsuits have changed the way that they think and have made them safer. I always wonder on these products, cases with these internal memos. I always wonder if you’re even getting everything if there’s even worse email, I’m sure you’re not. Yeah, yeah. And the ones that they do turn over, like, at some point, I hope that whoever’s gathering those documents or their lawyers, someone looks at them and says, what are you doing here? Why did you? Why did you think like this? Like, this is, it’s abhorrent.

[40:46] Yeah. And I there are a lot of cases, I think we’re, no matter how hard we fight, we probably don’t get the worst of the worst emails or notes from the other side, they just don’t produce them. And we’ve had cases before where defendants are sanctioned for not producing stuff. You know, you get it through an alternative source, because they think it’s, oh, it’s, you know, plaintiff’s Phillips is gonna have a hard time as Roby is gonna have a hard time getting this. And somehow you get it from another source, whether that’s another law firm, you know, going, looking at other cases they’ve been involved in, for example, maybe a manufacturer of a product, a lawnmower, doesn’t turn over data or doesn’t turn over some incident reports of some fires in your case. But then you know that there’s a lawyer in Boston who had a similar case, and you call him up and say, hey, if there’s no protective order on this, can we see these? And then he or she sends them to you. And then all of a sudden you say, oh, my gosh, this is exactly what we were looking for. They didn’t produce this in our case. And that has happened. I mean, many times that’s happened to us where we’ve gotten critical documents through not our case, because they refuse to produce them or hide them and gotten them in other cases. And then the defendants, you know, will get sanctioned, hopefully, or, you know, something happens in the case as to where, you know, we can use that to our benefit. Okay, so as we wrap up our discussion about product liability, I do want to mention Michael and I have a semi-product liability case, kind of a product liability case against a, like I mentioned at the beginning, this trampoline park or indoor amusement park that’s set for trial in early December that involves some product liability type issues and some design defects. So that’s going to be at the Daily Center in early December if anybody wants to come out and watch it. We’re getting ready for trial on that case.

[42:41] And then Michael, some other firm news, Michael received an amicus brief award through it. You want to tell us about that? I know you don’t be bashful, Cher. Sure. Amicus, I believe it’s a Latin word for friend of the court, but basically it’s writing a brief for a case that you aren’t, I guess, representing the plaintiff or the defendant on, but you think that there’s some issue, public policy, something that the court, deciding court needs to consider. And I wrote a brief that is in front of the Illinois Supreme Court currently about an issue that’s very important for the Illinois trial lawyers and for, frankly, the general public about remittmentor, which is basically the reduction of damages from a jury after the trial and whether or not it’s procedurally proper, some things like that. And I know we talk a lot about the Illinois Trial Lawyers Association on this podcast, but it’s a really good group of very smart lawyers who want to genuinely help each other and to help the public. And so when I was writing this brief, I had a lot of good resources, I had a lot of good mentors, and it was a good experience to feel like I was helping not just ITLA, but also hopefully helping the general public. So what you did was basically write a brief in a case that we weren’t directly involved in, but the brief’s going to get submitted to the Supreme Court on behalf of our organization? Yeah, yes, exactly. We, our office doesn’t represent anyone in this litigation, but the Illinois Trial Lawyers Association thought that it has issues that pertain to the general public and keep them safe. This is an important case, and we want to make a record of what our thoughts are on it. So good job on that. Congrats on the award. And then Alec, I think you’re speaking at your high school? Yeah, I plan to speak at Lake Forest Academy, I think in the coming weeks, just to give some of the students some insight into law school and the work we do here, answer any questions that they have. So I’m looking forward to that. I like the outreach, you know, especially for kids that might not know what they want to do heading into college, just to give them some insight into, you know, what this profession holds and entails. Did you know at LFA what you wanted to do in high school? I must have because I went to school in DC, I went to college in DC, and I think part of that was the thought to go to law school afterwards. But, but, you know, that was definitely solidified in college, not in high school. Did you work here in high school? I don’t know. No, I was my sophomore summer of college, Steve. What was your high school job? Babysitting. Really? Yes, babysitting. And the best part wasn’t the money made for the hourly of babysitting was that the family would give me 55 cents, a mile driven. And these kids, the family’s kids had activities all throughout, you know, different towns. So that’s how I would make money, 55 cents. All right, so Alec the babysitter. Yeah.

[45:46] Make sure to tell, quick, quick rant, make sure to tell those kids that in college, there aren’t classes in college that inherently prepare you for law school. People always ask us to go, what should my kids take in college to prepare for law school? Law school is where you learn the law. College is still where you can explore things, maybe a political science major, but you don’t need to force yourself to get a head start on law. I agree. I don’t even think we had pre law at Michigan. Like there wasn’t a pre law. And I know he’s smiling because he says Michigan is his safety school. He was a Notre Dame graduate. And he will tell you every day, every hour of the day that he graduated from Notre Dame and has a high ACT. Well, how do you I haven’t said anything. I’m just existing right here. How do you know that someone went to Notre Dame? How? They’ll tell you. How many Notre Dame graduates does it take to screw in a lightbulb?

[46:39] I don’t know. 100. One to screw it in and 99 to reminisce about it. Get it out now because in December, January, when we’re national champions in football, I’m gonna have the last laugh. Put that in the record books. Well, thank you all for joining us for our third episode of Navigating Negligence. Sorry, there was a gap between the second and third. We’re gonna hopefully get the fourth and fifth out here shortly. So if you have any questions at all, if you have a family member, friend, loved one who was hurt, even if you don’t know if it’s a case, or might be a case, anything, auto accident, medical negligence, products, liability, construction, trucking. If somebody’s hurt seriously, even if it’s in another state, give one of us a call. We look at cases for friends and family members all the time, weekends, nights, mornings. So, you know, don’t be afraid to give us a call. And if nothing else, hopefully if even if it’s in another state, we can put you in contact with one of our friends or colleagues elsewhere. So don’t hesitate to reach out to us. And if it’s not an injury case, we probably know someone who does handle it. So give us a call. And if you have any questions, feel free to leave them below and subscribe to the channel.