EP 619- Intake Analysis and Workup of a Product Fire Case Part Two

Episode Notes

Transcript

Announcer:

Welcome to The Jury is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth

Erich Vieth:

Welcome to another episode of The Jury is Out. I’m Erich Vieth

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m John Simon. We’re going to pick up, continuing to talk about the potential product case intake and how we would consider it, work it up with the hospice bed fire.

Erich Vieth:

How often does it happen that the cause or one of the causes is the materials, like maybe the blanket things that can catch fire? It seems like if, I mean I don’t know this answer, but I assume that there’s optimally, you’ll have blanket manufacturers who make things that don’t catch fire. So even if there’s sparks down at the bottom of the bed, the foot of the bed, it won’t work its way up to the patient. But how often is that not true where you have actually a blanket or a sheet or something where a material is able to catch fire where you

Tim Cronin:

Would think that would be protected? What’s the fire triangle? It’s ignition source, oxygen and fuel. Right. And the fuel is what you’re talking about. It’s what actually caught on fire. If you’re putting something close to an ignition source, it probably ought to be something that doesn’t burn easy.

John Simon:

Yeah. So you could be looking at I guess the actual construction of the mattress, which would be on the manufacturer. Maybe that’s a component manufacturer. I guess if the decedent or the client has put different blankets on the bed that the blanket manufacturer didn’t know what it was going to be used for, that’s probably not a theory I would pursue.

Tim Cronin:

I like the, and the mattress might be

John Simon:

A viable one. I mean that very well might be a viable one. Especially, I mean the manufacturer of the whole bed together certainly knew that the mattress was going to be right next to the control box which had flammable plastic rather than like a metallic housing. The component manufacturer who provided them the mattress may or may not have known the overall design. So you got to take into that.

Tim Cronin:

The other thing that you want to keep from a practical standpoint, you don’t want to spend $200,000 and then find out that you don’t have a case when you could have done that a little earlier. So you want to be sort of careful and practical in terms of what you do to rule things out. And that’s my first conversation with the expert is, and they’re happy to build their time and send you a big bill and so you really want to, I need

John Simon:

A budget

Tim Cronin:

Until we get too

John Simon:

Late.

Tim Cronin:

Exactly. I mean, let’s see. What can you tell me for $10,000? And really you don’t want to

John Simon:

Cause an origin guy is going to tell you

Tim Cronin:

Nothing, right or not much, but to the extent that you can because I’ve been there, done that where we’re heading down the road, we got two, three experts on board and we’re sifting through buckets and barrels of burnt stuff and then all of a sudden we discover something that we could have discovered very early on or a little bit earlier that tells us we don’t have a case.

John Simon:

And so to that point, look right away you’re going to serve initial regular product discovery and part of that’s going to be component manufacturers like we talked about. We’ve done other podcasts about discovery and product cases. So you’re going to ask about testing and design documents, other incident documents where it’s manufactured, anything about the manufacturing process. Here’s a really big one and we’ve talked about it before. Were alternative designs considered? Were there cost differences for that alternative design? Why did you not do it? So all the standard product discovery, but I would very quickly get out and depose everybody who went to that scene because if you find out that there’s a fireman or a coroner or a state investigator that is out there that has crucial information that they are going to testify to, that will blow up your whole case. No, I was on the scene, I saw it before the fire spread to any other room and it was in a different room. I want to know that. I want to know that right away because the jury’s going to tend to believe that person over the family members who were suing for

Tim Cronin:

Money. And if it’s true, you want to know it. If it’s true, you want to know it and spending time and money on the case.

John Simon:

So that was to the point you just made. That’s the kind of thing I don’t wait. A lot of times we fight about written discovery for eight months or something. I don’t wait for that to go take the first responders. I get the reports I can as quickly as I can. Like you said, John, like a state fire marshal investigator may not have their report done for a year. Sometimes they don’t get done to your cases over. I’d still go take their depo. Anybody who was on that scene, you want to try to rule them out from saying anything about

Tim Cronin:

Want to find out what they know.

John Simon:

Yeah, you want to find out what they know, what they heard your clients say at the scene. Especially if they’re like, ah yeah, dad smoked in that hospital bed all the time with his oxygen on. I would like to know that because if one of your clients said that to someone on the scene that’s coming in and your case might be tanked. So I’ve had a case like this. I probably went and took 51st responders who were at the scene. I just took a week and I went and took eight in a day and just one after it is the same stuff, just one after another. What did you see? What did you hear my client say? Anything other than what’s in the report that you can recall? Yeah. Can you tell me or offer any opinion about what caused this fire where it started and you’re trying to, you want to find out anything really bad and otherwise you’re trying to make sure they aren’t going to come to trial and say something later that can blow your case up.

Erich Vieth:

Does that ruin the case if dad was a smoker and he smoked in a bed because you still have the mattresses. I would think that these things should not be catching fire even if the cigarette people would make these beds. No, I think we

Tim Cronin:

Had that situation. It depends on the specifics and what we had was some really good solid evidence that electrical component box, the box that held the electrical components. Was it the foot of the bed? Was the foot of the bed and it was the source of the fire and he not smoking hopefully in flipping them down by the foot of his bed. And the other thing too is it’s a problem though. It is a problem. People aren’t going to like it. It’s never going to go away. It’s never going to go away. If you have somebody who did smoke that’s going to be out there. And as we know from experience, certain people get something in their head and as I’ve said before, two and two isn’t always four in a jury room. They don’t like the fact that the person was smoking in bed and that might be overly influencing them in how they look at the other evidence in the case.

John Simon:

So I mean you really want to try to establish whatever evidence you can to see if you can exclude, if the only people who are eyewitnesses to whatever happened in that house testify that dad never smoked in that room and even the other side agrees the fire started in that room and let’s say dad had pneumonia for the last week and wasn’t smoking or he had COPD and he was a smoker, but he quit in the last two months or whatever you can to try to keep it out because jurors emotionally will react negatively to there’s a fire and he smoked in his bed and it happened in the bed. I don’t care. Whatever else you have to say and that kind of

Tim Cronin:

Shuts you off. One of the things that’s important, going back to what you said earlier, Tim, was the discovery and the most important thing in this case with these set of facts in my opinion, you want to make sure the actual fire started in the location, the area that you want to have good cause and origin evidence. But the most important thing in my opinion is did it happen before other incidents? And that’s where the big fight is going to be on discovery. We’ve been through this before with fire cases. If you’re getting a bunch of other

John Simon:

Incidents, then the other side is basically not going to let you try the case.

Tim Cronin:

And the other thing is just the problem is getting them and what we have is they’ll fight you on the description. Be careful what your description is in discovery. It doesn’t need to be a fire. Nobody needed to go to the hospitals, nobody needed to die. Been was there smoking, was there heat overheated If anybody complained that it overheated, right? If anybody complained that there was some smell, that’s something that puts ’em on notice then look into their inadequate investigative processes. Exactly. I was getting at, I took a deposition of a corporate rep in an auto product case involving a fire and the product that caused the fire. We discovered incidents from other attorneys across the country that they hadn’t produced to us. And so we were able to confront ’em with that and we ended up taking the person at the company who was responsible for reporting fires and investigating them and that person,

John Simon:

They have responsibilities to report that

Tim Cronin:

To the government. And that person’s testimony was, it’s absolutely impossible for this to happen with our product,

John Simon:

Therefore you never reported

Tim Cronin:

One. Therefore we never reported it and didn’t investigate it, didn’t investigate it because they put a guy in charge of the investigation saying that we don’t need an investigation because it can never happen. And the other thing too is you never know what you’re going to get. I’m a little bit maybe jaded a little bit, but I’ve had quite a few cases where, I mean I see it all the time with things like insurance coverage where you never really know that you’re getting everything from the defendant and it’s really sad to say that and it’s sort of like gets you angry. I think the default is you’re not. Yeah, right. I mean by default, by default you need to go in with the idea that they’re not going to turn over everything that they have. To you.

Erich Vieth:

This is going to sound naive, but it’s the year 2025. How hard is it to make a bed that doesn’t spark? I mean it seems like are these 10 to be older bed, how

Tim Cronin:

Much does it cost to make a bed that doesn’t sparks correct. That’s the 2025 question. And the answer to that tells you what more than they’d like to we’re to expect, right? Why we’re here.

John Simon:

Yeah.

Tim Cronin:

It’s always the cost. There’s no question you can make things safe, but the question is how much more is it going to cost and how much is that going to eat into our profit and is our competitor doing it? I’ve seen that where there’s a safety component that will actually solve the problem that we’re complaining about and the company literally says, yeah, we thought about that, talked about that, but everybody else is doing it the same way. So why should we bother to dip into our profit and fix something that’s dangerous?

Erich Vieth:

The question I had is do these tend to be older beds because it seems like these

Tim Cronin:

Are a problem. No, not at all. Not at all. Because the other thing too, and here’s a big thing too, is testing. Testing any kind of product case you want to ask about testing. I think that people understand yours, understand testing, they get it. Design maybe not so much, but they get you tell somebody they got a product out there, they didn’t test it, they’re going to start going, what? You didn’t test it. And what that means, Eric, is why things come out and all of a sudden a lot of times if it’s a poor design and it’s not tested, you’re going to see it with new products, you’re going to see it right away. And what they’re really doing in that situation is they’re using testing it on people, they’re testing on people, let’s put it out there and see what happens. And a lot of it too, a lot of these products are from overseas, some of ’em are from China where you don’t know who the hell made it and you don’t know what materials they use, what testing and the people selling it here probably don’t know it. A lot of that stuff’s going on now with companies like Amazon where they’re pushing products and who knows how many people have been involved in making it manufacturing the parts and all of that. But the bottom line is we have strict liability and we just need to show that it’s a bad product that it can cause harm. It’s unreasonably dangerous, defective and unreasonably dangerous

John Simon:

And can submit on negligence theories like negligent failure to test and should if they didn’t do any testing, so by the way, part of taking everybody who was on scene isn’t just who was on scene that day. You need to find out from family members or from the hospice service provider, there’s going to be hospice nurses. You need to go talk to them medical records. So medical records and then whoever the hospice nurses where anybody who was in that house on any kind of regular basis or at all, you need to go take their depo and figure out if they’re going to say no, I saw I’m smoking in that bed all the time and whatever else they remember. And then you’re going to produce all your clients. We’ve talked about client prep, but in this kind of situation you want to cover not just all the typical things you want to certainly cover. There’s a bunch of siblings here in this scenario like we talked about earlier, we need to be lockstep. Don’t start downplaying the relationship between your siblings and they didn’t do anything to help and they’re not a good, we’re a family that’s close, we’re in this together. And then everything they remember from anytime they were in the house do very thorough prep.

Tim Cronin:

Well, this is a different, this case scenario is a little bit different on client prep than a typical say med mal case, a surgery or something because the family are going to be liability witnesses.

Erich Vieth:

Correct.

Tim Cronin:

The family are going to provide key information, either have or maybe not have, but they could have key information about one of the main issues. If the defense is he was smoking, if there’s only two things in the room that could have caused it, the electric bed or a cigarette, then that issue that’s going to be their defense and what the family members have to say. I mean, for instance, if you have two family members, six, it could be who did the

John Simon:

Electrical

Tim Cronin:

In this

John Simon:

House,

Tim Cronin:

Right? Electric. So let’s say you have

John Simon:

C family members. Oh, your brother Joe did it. Did he have a license or a permit to do it? Does he know how to do it? I mean anything can

Tim Cronin:

Arise. Would you get these extension courts?

John Simon:

Yeah.

Tim Cronin:

So if you have six family members all come in under oath and say, my daddy didn’t smoke a bit, he kicked the habit, he wasn’t smoking. And then the fifth child comes in and goes, he smoked like a chimney all the time. You want to make sure you tell everybody, look, you got to be truthful. You got to be honest. It is what it is. If he smoked, he smoked. If he smoked, he smoked and we’ll deal with it. But yeah, those are issues that it becomes a little lot more difficult when you got multiple family members that you’re representing as opposed to one or two folks.

Erich Vieth:

I have a lingering question about the clients is hypothetical, what if, I mean here the mother died and the sisters suffered severe burns also. What if it was only dad and then dad’s a hospice patient, he had a few months to live this case. Is it still a viable case for the attorneys?

John Simon:

That’s an excellent question. So it’s not capped because it’s not a med mal case and you have six kids and grandchildren and let’s say the spouse survived. Some of it depends on their age. John and I had a case early in my career with that exact scenario with it was a wrongful death case for an elderly gentleman who was told he only had a couple weeks to live, he had cancer and the wife survived and I did dire in that case. I think John and I asked, it’s all about how you frame it. Those last few weeks are the most valuable and important few weeks of his and his wife’s and his family’s lives. They didn’t get the chance to say goodbye and how important is that? And so I think in voir dire in that case, I said, how would anybody feel or react just hypothetically to if let’s say you made a product and that product more likely than not caused a fire, which more likely than not caused a death. And your response was, yeah, but the damages aren’t significant because he was on hospice and he was going to die anyway soon. How would anybody react to that? And everybody raised their hand and basically was like, I would react violently if somebody said that. Well,

Tim Cronin:

Not just that, but it’s all about your memory. If one of your parents or a close family member or friend passes away, you’re left with memories. And what that does if you die this horrible death burning to death, I don’t care if you got 24, 4 hours, that’s all you think about when you think if your loved one died of this horrible fire and even though they spent 30, 40 years with you and you have all these great memories, the first thing that’s going to come to mind every single time your heart’s going to drop, as soon as you think about that person, all you’re ever going to think about the rest of your life, it takes away all those good memories. I mean it really does. How you end versus having them in a hospital bed and you’re sitting there next to them holding their hand, talking with them and the families around them. It’s a big deal to me. It wouldn’t phase me if they had two hours left to live and they burned to death. I don’t think it would not affect the decision whether or not I would want to go forward with the case.

John Simon:

It’s a good question though because you need to put thought into how you’re going to frame it and argue it. And there’s good ways to do it in this scenario. So you’re dealing with that. You also have the sister who has thermal burns, so you’re going to take her treating physicians and go through her treatment and injuries and then mom who died but died later after severe burns. So you’ve got to get her records obviously and focus on how horrible the last however long of her life was in the, and how their kids are now dealing with their dad did die in a fire. Their mom has these horrible burns and their last memories with her are stretched out over days or weeks while she is dealing with burns from the fire and is going to pass away. So there’s three different aspects here.

Erich Vieth:

Yeah. Now I’m wondering, thanks for that answer.

John Simon:

Which one’s better I immediately in the fire or survive? Well that too,

Erich Vieth:

But I’m wondering at trial, I mean this complex situation, you’re trying to give the story of the family, everybody’s relationship with many other members of the family. How much time, many days do you foresee putting the family members on and letting them talk about their family because that’s a big part of the damages. Is it a week

John Simon:

You’re going to know which ones you want to put on first? You want to pick your strongest ones and tell most of it. I think through the first couple, I wouldn’t want my family on for a week. I’d want to try to short is better and I’d spread ’em out. I’d spread ’em out throughout the trial. So not one after another, after another, after another. I’d try to spread out and mix in damages with liability and causation

Tim Cronin:

Throughout the trial. What I do in a situation like this where there are a lot of family members is just like Tim’s saying, I’ll pick one or two who are really good test. I mean they’re going to make a really good impression. They can be better communicators and I will have them lay the groundwork and get whatever background information and then the rest, if I do call ’em, I’ll limit it to one story, one memory of whoever it was the father for instance. And just so the jury can see him and think about that connection. I think more often than not in cases like this, good defense lawyers don’t ask a question more often than not probably

John Simon:

Unless they have something really good from the depot that they want to bring up one thing, but they can always wait until their case and just play that portion of the depot. Smart, good defense lawyers most of the time, unless your client’s really, really unlikeable and nobody minds them picking on ’em, they’ll say No questions, really sorry for your loss. So we’ve talked about this at great length elsewhere, but the next stage of the case after everybody who was on scene, your clients, anybody who visited the scene, coroner, treating doctors, whatever, is you’re going to move into focusing your depos for the defendants. So you’re going to take a corporate rep of the manufacturer component manufacturer if you have one, the hospice service. And a big part of that, John already alluded to is you’re using that as an opportunity once you have somebody in the hot seat under oath to figure out if you got everything and almost every time you’re going to find out you didn’t.

Tim Cronin:

Right.

John Simon:

And

Tim Cronin:

A product case is products like a person in a sense. It was born, the idea was conceived, then it was designed, and then they manufactured a prototype and then they tested and then they started selling it and then they got feedback from the customers and then they created marketing materials telling everybody not only what it did and what a great product it was, but they warned them about things with it. So really when I create discovery or develop discovery for a product case, that’s kind of how I start. I just, in very broad strokes, I’ll start with, okay, let’s talk about the design of the product. How did it come into being? Who was involved in it? When did it happen? Most importantly, the two things you want. You want people in documents, who are the people involved in the design of this, in the electrical component of this bet or the testing? And then once you get the design, the next thing is, okay, the testing, let’s talk about all the testing you did. And guess what the testing they didn’t do is just as important if not more important than the testing that they did. So you want to cover all of that. And again, two things I always look at

John Simon:

Are, and then did you look at any alternatives? How much did they cost?

Tim Cronin:

The cost of the design alternative designs, so design, testing, marketing, ossis, what you’ve heard back, but you really want to look at people and documents and especially a corporate rep that, we said this before in the other podcast, a corporate rep deposition, there’s a big disadvantage because the defense lawyers get to choose anybody. They want to be the corporate rep. So they get to pick the movie star, handsome, articulate person who makes a good impression. And so what you really want to do is you want to get names of people. I always get names in a corporate rep deposition and find out who’s involved in this, who’s involved in that. Because you take other depositions and when it’s people that you pick and the defense doesn’t pick, sometimes they’re not as tied in with the company and they tend to be a little more, you get some inconsistencies.

Some inconsistencies. We had that, Johnny and I had that in a case we tried where they put forward. I liked the guy, really good guy. He seemed to be real straightforward about stuff except he didn’t know a damn thing about anything. He just said, well, I think this or whatever. And then we took, I got a list of names from him of other engineers who were involved in the design and I picked two of the oldest guys that had been there for 30, 35 years. And one of them came in and just laid everything out. We said, acknowledge it. It was like, yep, we did this. We talked about this design. We didn’t use it. It was possible for us to do the other designs.

Erich Vieth:

You anticipated my question. I would think if I were a defendant, I don’t want to just put somebody in who’s articulate, I want to get an engineer because it seems like these issues are going to have interplay at the corporate rep deposition. You’ll be asking about how this works and

Tim Cronin:

Could this, I think the strategy I see a lot, Eric, is they don’t want somebody with too much knowledge. They want somebody who doesn’t know much about the topic. And then that way they can just feed them information that they want us to know and we can’t dig a little further. That’s what I get a lot of times where the corporate rep will say, well, here’s what we do, here’s our policy and who is involved in creating it? Who monitors it? Who this? I don’t know. I don’t know. And so your corporate rep deposition topics need to be broad enough so that you want people, you want people in documents who was involved. Products didn’t just jump on the shelf by themselves. And here’s the key thing too, is as we pointed out earlier in every case, why are they making that product? There’s only one reason on earth they’re making that product is to sell it and make money. So that means money profit is involved in every aspect of the design of every product out there. I mean, it is, they are making it to make money. There’s nothing wrong with that. We want ’em to make money. But you don’t want to completely ignore something that for very little money could save people’s lives or something that creates a big danger that for a few dollars more in a

$400 product, they could have eliminated the danger.

John Simon:

So once you get through, you’re going through taking company witnesses, corporate reps, other company witnesses. By that time you’re usually in the expert stage. And then that’s the last, what, four to six months before you get to trial, you’re going to put up your cause and origin expert, your electrical engineer, or maybe multiple of each medical experts, those kinds of things. And that’s all just kind of stuck testing. Do you ever allow your expert or want your expert to do independent testing? That’s dangerous. It’s pretty dangerous. If they do it and they’re your testifier and it doesn’t turn out good, you’re going to have to tell. They’re going to have to say it. So

Tim Cronin:

What we do, what we’ve done before is we’ll do the testing with a consulting expert and not involve our testifying expert. And it allows us to modify the test, change the test, and if you want to use it, you use it. If you don’t want to use it, you don’t use it.

John Simon:

Yeah. If it goes well, you can then have your testifying expert do it or you just provide it to him. But yeah, I saw I don’t like lack of control over things.

Tim Cronin:

And here’s the other thing. We had a case one time that we got involved in later. It was a fire case and this is how this happened. And the defense was, it’s impossible. It can’t happen. Right? Well, they can’t prove it’s impossible. And we had evidence that it did cause it, and it happened before. They’re saying, no, it’s impossible. It couldn’t have happened that way. So the folks who sent us the case actually had somebody who did a test that tried to show it happened. And of course it didn’t happen. It may happen once every a hundred thousand times and it didn’t happen. So not that it concluded the case, but it made it very difficult because we had a testifying expert who claimed he was trying to prove that it could happen by showing it what happened and it didn’t happen every time.

John Simon:

Yes. So that’s pretty much it. I mean, you’re going to get through the experts, they’re going to try to beat up on your experts, you’re going to try to beat up on theirs by then, you know, have a pretty good idea of what the fight is about, and then you get ready for trial. So anything else, John or Eric, you think

Erich Vieth:

I got one question about that. The night of terror, how much do you focus on that last five minutes where people were screaming and smoke and horror? How do you handle that?

John Simon:

I mean, some of your clients might be seeking counseling or should for it and have trauma from it. So I would certainly, like any of your family members that were there that went through it, they’re going to have to go through it in front of the jury in detail and probably will get emotional about it. And hopefully if they’re struggling with it, they’ve sought help. And you go take maybe the therapist step

Tim Cronin:

Up. And this is the kind of thing too that you need to spend a half an hour with it. People get it. They understand how horrible it is. One of the best clients that I’ve ever had testify in any case in my entire career was on the stand for about 12 minutes and it was just unbelievable. It was, Tim had one, take that back. The one case with our client on the stand was five minutes and it was the first five minutes of her testimony was about as compelling, I think even more compelling than the one I was thinking about. And she couldn’t finish,

John Simon:

Which told the jury everything she was going to tell them without saying

Tim Cronin:

It. And sometimes it’s better for you got to leave some room for the jury to fill in the blanks, painting out every little detail. People don’t like that. They get it. They get the general idea. They can figure stuff out.

John Simon:

Okay, well I hope this was helpful or at least entertaining. Thank you for joining us for another episode of The Jury Is Out. I’m Tim Cronin.

Tim Cronin:

I’m Eric Feast. I’m John Simon. We’ll see you next time.

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