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How to Get Punitive Damages to Punish the Manufacturer of a Defective-Dangerous Product

Posted on by Matt Hamilton

SHOULD MY DEFECTIVE DANGEROUS PRODUCT CASE REQUEST PUNITIVE DAMAGES TO PUNISH THE MANUFACTURER?

Dangerous products cause accidents that harm Americans every day.  Manufacturers fall “in love” with their own designs and fail to see how their product will injure or kill their customers.  Instead, manufacturers blame the victim.  Corporations ignore notices they have sold a dangerous product to an innocent customer.  Too often, when a manufacturer becomes aware that its creation is dangerous, the company attempts to hide the evidence.  Corporations too often do not warn the users of their products of hidden dangers that injure and kill.

The Benefit of Defective Product Lawsuits

Lawsuits often are necessary to receive compensation for injury and death because of defective products.  Punitive damages to punish the manufacturer are often not considered.  This “extreme” accusation is often appropriate but not used.  Defective product claims benefit society by motivating those that design, test, and manufacture to be more diligent in preventing personal injury and wrongful death.  This article teaches when punitive damages are appropriate.

The Benefit of Punitive Damages

Punitive damages were created to benefit society.  They are a means of taking money from a defendant who has harmed or killed by their outrageous conduct or complete indifference to the safety of others.  In this manner, society benefits from safer products.  Innocent victims benefit by warnings that put them on notice of the dangers of deadly products.

Challenges to Winning Punitive Damages

There are many challenges to winning punitive damages claim from an injury accident.  Courts are reluctant to approve punitive damages.  This is because of their unusual and rare use.  This is also because of the difficult legal standard to prove punitive damages.

A second challenge is when corporations hide the evidence of their own wrong-doing.  When evidence is thin, passing the legal test for punitive damages is difficult.  Third, the accusation of punitive damages adds complexity to already complex cases.  Many lawyers are unable to manage this added complexity.  Other lawyers do not bring the claim because of ignorance of punitive damages law.  Still other lawyers do not bring punitive damages claims because they are uncomfortable with litigation of the punitive damages issue because of inexperience.  Fifth, the punitive damages claim can be a distraction from other necessary elements in a case, if the punitive damages claim will not proceed to the jury.  These five barriers to the bringing of punitive damage claims in accident injury cases makes them rare.

The Test to Win Punitive Damages

The test for a punitive damages claim in an injury accident is as follows:

Clear and convincing evidence is needed so that a reasonable jury could conclude that it was highly probably that the defendant’s conduct was recklessly indifferent.

In a defective product case, the following test is often used:

  1. Did the manufacturer or corporation place the defective product into commerce?
  2. Is the product unreasonably dangerous?
  3. Did the manufacturer have actual knowledge of the defective?
  4. Did the defendant consciously disregard the safety of others?

Clear and Convincing; Not Just More Likely Than Not

Ordinarily, a more likely than not or greater than 50% likelihood is standard for civil cases.  Punitive Damages evidence must past a heightened test of being both clear and convincing.  This clear and convincing evidence standard is a difficult one to pass.

The heightened clear and convincing evidence also adds difficulty to other case aspects.  This has been discussed in detail in cases such as Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 164-65 (Mo.App. W.D. 1997).  The courts require evidence that the defendant showed a “complete indifference or conscious disregard of the safety of others.”  See Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 659 (Mo.App. W.D.1997). In Barnett, the court discussed in detail the various standards and the differences between punitive damages, strict product liability lawsuits, and ordinary negligence cases.

What is Complete Indifference?

The “conscious disregard or complete indifference” standard for punitive damages in accident cases includes circumstances where the person doing the wrongful act or failing to do a proper act is “conscious from the knowledge of the surrounding circumstances and existing conditions that their conduct or failure to act will naturally and probably result in injury.”  In short, the wrongdoer does not need a specific intent to injure you or kill.  The death or injury merely needs to be the natural and probable result.

Is Proof of Evil Motive Needed?

Defendants often argue that the conduct must be outrageous and include an evil motive.  This is indeed the standard discussed in cases such as Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 477 (Mo.App. W.D. 2005).  However, the lawyer must keep in mind the phrase that follows all the evil motive discussion.

The standard includes actions that show a “reckless indifference to the rights of others.”  This “reckless indifference” language arose from a case where a person fired a pistol into a crowd.  The perpetrator did not have a specific intent to harm any particular person.  The defendant did not intend to injure or kill and lacked an evil motive.  However, it was reckless.  Firing a bullet into a crowd will naturally and probably result in injury; in spite of a lack of specific intent to kill or an evil motive.  This is the genesis of punitive damages and should be used in your case.

How Likely Was Injury?

There is a further ability to get punitive damages.  This is in cases where the defendant either knew or had reason to know there was high probability that their conduct would result in injury.  The Supreme Court of Missouri spoke about this in detail in the case of Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 160 (Mo. banc 2000).  In Lopez, the defendant’s conduct was tantamount to an intentional wrongdoing. This was because the natural and probable consequence of their conduct was injury.

In your case, the circuit court will need to determine whether your evidence (giving full credit to the jury’s right to determine witness credibility, weigh the evidence, and draw inferences from it) is sufficient to permit a reasonable jury to conclude with convincing clarity that it was highly probable that their conduct was outrageous because of reckless indifference. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

What is the Benefit of Claiming Punitive Damages?

I encourage you to go through the full analysis of punitive damages for the evidence in your case.  There are many benefits to bringing punitive damages in the matter.  It increases the likelihood of settlement.  It increases the value of cases.  It increases the willingness of defendant to become reasonable.  It allows added flexibility during trial.  It will increase the chances that you will have reasonable value for your case.

Most importantly, punitive damages are is the only real means of convincing indifferent manufacturers and corporations to stop harming innocent victims and change the way in which they do business.  Punitive damages are a real opportunity for you to benefit society.

reading law bookMatt Hamilton

  • Juris Doctor
  • Trial Attorney

 

More Relevant Articles:

  1. Dudley McCarter, Seller of Product is Not Liable Unless Shown to Have Reason to Know, 71 J. Mo. Bar 76 (2015).

 

 

 

How a Claim of Ignorance can Kill a Defective Product Injury Lawsuit

Posted on by Matt Hamilton

HOW A RETAILER CAN KILL YOUR DEFECTIVE PRODUCT PERSONAL INJURY LAWSUIT BY CLAIMING IGNORANCE

Dangerous products commonly injure or kill innocent victims.  Our laws have set up many types of lawsuits which can compensate victims for unreasonably dangerous products.  In response, corporations, manufacturers, and their distribution chain advocate legal defenses to escape responsibility for the injuries and deaths their products cause.

Why Sue the Seller and Not the Maker?

It is often necessary to file a lawsuit against the retailer (the place where the product was purchased) rather than the manufacturer itself.  Sometimes, the manufacturer cannot be identified.  Other times, the manufacturer is located in a foreign country and cannot be legally held responsible.  Still other times, the manufacturer no longer exists.

Our laws allow for the retailer that sold the product to be sued directly in certain circumstances.  These circumstances include strict product liability, where the product is unreasonably dangerous when put to reasonably anticipated use.  Another lawsuit is for strict liability for the failure to warn.  A third type of lawsuit against a retailer would be for express or implied warranties and negligently supplying a dangerous instrumentality.

The Test for Suing the Seller for Strict Liability for a Dangerous Product

Strict liability for a product defect can be won when the evidence proves:

  1. That the retailer sold the product in the course of its business, and
  2. The product was in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and
  3. The product was used by the customer in a manner reasonably anticipated, and
  4. The victim was damaged as a direct result of the defective nature of the product as it existed when it was sold.

Paraphrase of M.A.I. 25.04 (1978 Revised); Keener v. Dayton Electric Manuf. Co., 445 S.W.2d 362 (7) (Mo. 1969).

What Does “Unreasonably Dangerous” Mean?

There is no need to define the term “unreasonably dangerous” in dangerous product cases.  Unreasonably dangerous is determined by the jury.  If they think it is unreasonable; it is unreasonable.  If the jury believes it is dangerous; it is dangerous.  Speck v. Abell-Howe Co., 839 S.W.2d 623 (Mo. App. 1992).  The challenge then goes to your evidence and your lawyer’s persuasive abilities.

Failing to Warn the Victim

Retailers can also be found responsible for a personal injury from a dangerous product when the retailer fails to warn its own customers.  Remember, the retailer did not manufacture this product.  It may lack the ability to change it.  It may have only known or should have known of the dangerous nature of what it was selling and didn’t tell the victim.

The Failure to Warn Test

The Supreme Court has set out the failure to warn test for defective products.  To sue a retailer for failing to warn, you must prove the following:

  1. That the retailer sold the product in the course of its business, and
  2. The product was unreasonably dangerous when put to a reasonably anticipated use without the person using the product having knowledge of its characteristics, and
  3. That the retailer did not give an adequate warning of the danger, and
  4. The product was used in a manner reasonably anticipated, and
  5. That the victim was damaged as a direct result of the product being sold without an adequate warning.

Paraphrase of M.A.I. 25.05 (1978); Arnold v. Ingersoll-Rand Corp., 834 S.W.2d 192 (Mo. 1992).

What Is An “Adequate Warning?”

This is a matter for the jury to decide.  If the twelve people on the jury believe the warning was adequate, there is no failure to warn.  If the jury believes the warning, if any, was inadequate, you may win your case.  See Lay v. P & G Healthcare Inc., 37 S.W.3d 310 (Mo. App. 2000); Louis v. Envirotech Corp., 674 S.W.2d 105 (Mo. App. 1984).

Ignorance As A Defense

There is a general treatise on how lawsuits can be made.  It is known as the Restatement (Second) of Torts.  Section 388 of the Restatement of Torts covers how many state laws spell out their requirements for sellers to warn about strict liability defective products.  See W. Dudley McCarter, Seller of Product Not Liable Unless Reason to Know Product Dangerous, 71 J. Mo. Bar 76 (2015)(excellent discussion of this topic).  This part of the Restatement was adapted by our Supreme Court in the case of Morris v. Shell Oil Co., 647 S.W.2d 39, 42 (Mo. 1971).

In the Morris case, the Missouri Supreme Court ordered that the seller of the defective product is not liable for a resulting injury or death unless the retailer actually knew of the dangerous product or had reason to know.  See also Malone v. Schapun, Inc., 965 S.W.2d 177, 184 (Mo. App. 1997).

Deny. Deny? Deny!

A seller of a dangerous product can deny that it had any knowledge that the product was dangerous.  It may further deny that it had any reason to know of the dangerous nature of the product. It then falls upon the victim to show compelling evidence that the seller should have known.  Remember, the retailer likely did not have a duty to inspect or test the product it sold.

What Did the Seller Know?  When Did the Seller Learn?

It is not enough to show that a retailer sold a defective dangerous product.  That retailer must be shown to have information from which a person of reasonable intelligence or because of the superior intelligence of the retailer, should infer that the product was unreasonably dangerous.

As a practical matter, the lawyers and the representatives of the retailer that sold the dangerous product will prepare and sign an affidavit swearing they did not know of the dangerous product and had received no information that would allow them to conclude it was dangerous.  The manufacturer and retailer lawyers will then make what is called a “summary judgment motion” under Rule 74.04 of the Rules of Civil Procedure.  It will then be the responsibility of the victim to come forward with evidence showing that that retailer should have known of the dangerous nature of the product.  In other words, ignorance is a defense.

Mandatory Preparation

As one can see, it is necessary to prepare in advance and do a detailed investigation when bringing a defective product case against the retailer itself.  Witnesses need to be interviewed.  Documents needed to be researched and read.  Experts need to be hired and fully briefed.

This is the manner in which you can benefit society by holding the corporations and other entities that harm the public accountable for the damage they cause.  Inadequate preparation and evidence is merely a waste of time, money, and effort.  Remember, ignorance may be a defense; but don’t let merely the appearance of ignorance rob you of the justice you deserve.

Further information for Defective product lawyers and victims at the link in this sentence.

Matt in front of booksAuthor:

Matt Hamilton

  • Juris Doctor
  • Trial Attorney

 

 

 

 

 

Unlock & Find Hidden Electronic Computer Files for Drug Error & Defective Product Claims

Posted on by Matt Hamilton

How to Unlock & Find Hidden Electronic Computer Files

for Drug Error & Defective Product Claims

Drug errors are all too common in medical treatment.  Mistakes cause Stevens – Johnson Syndrome.  Extravasation errors can lead to amputation.  Anti-coagulant drug errors can kill. Defective Products are hidden by the manufacturer and retailer.

The evidence of drug error malpractice is often stored electronically.  All businesses communicates and stores files electronically, in the modern world.  The medical-pharmaceutical industry relies particularly on electronic records.

It is normal to expect people to protect themselves and their jobs.  It is expected for people to hide their errors.  Businesses hide their mistakes, even when others are harmed.  Too often, individuals commit unethical acts on behalf of their employers; unethical acts they would not do to protect themselves.  This article teaches how to uncover electronic evidence others believe is deleted for drug error and defective product lawsuits.

Types of Electronic Records Containing Drug Error Evidence

Lawsuits are a search for the truth.  A drug error attorney must know how to uncover the truth from those seeking to hide it.  Drug error business records exist on electronic servers; often invisible to the naked eye.  These records include files, such as:

  • Email correspondence
  • Private correspondence
  • Business documents
  • Spreadsheets
  • Presentations
  • Testing data
  • Prescription histories
  • The drug mistakes
  • The cover up of the drug mistakes

This field is known as Electronically Stored Information or “E.S.I.”

Companies tend to forget what they store electronically.  Wrongdoers tell lies, presuming they have deleted the truth.

How Electronic Files Are Stored

Think of computer file storage as a book.  Books contain a table of contents, the pages themselves, an index, and perhaps a bibliography.  “Deleting” an electronic file does not erase the data within that file.  That information is still stored on a computer disk.  The act of deleting a file only removes a “pointer” that the computer uses to find that particular information’s location on the disk.  The “disk” can be:

  • a flash memory card,
  • a hard drive on a desktop computer, or
  • many other forms of storage.

The key is that the data you are looking for continues to exist until it is both deleted and written over by the computer.

What Happens When You Press Delete?

When one presses delete on a computer, there is a data entry on the disk’s directory.  This directory indicates each file as either “used” or “not used.” This status change tells the computer either it has permission to write over the data or it does not have permission to write over the data.

Either way, that data continues to exist until it is written over or the disk is physically destroyed.  Because of this, investigators can recover data thought buried or lost even many years into the past.  Insiders call this “residual data.”  It is there until it is written over.

Think back to our analogy of a computer file like a written book.  If I pull out the table of contents and burn it, the pages are still there.  If I pour ink over the bibliography, I can still read the book.  If I erase the contents of the index, the book’s story remains.  It is just more difficult to find.  This is where the experts come in.

The Critical Importance of Emails To Drug Error Cases

People are More Candid When E-Mailing

Emails and their cousins, text messaging, instant messaging and social media, are particularly important for drug error lawsuits.  These electronic communications are by their nature informal.  Many employees will speak their mind and disclose information they would rather keep secret in an email but never in a formal memorandum or business document.  This is ironical because the email is invariably a business document and much more difficult to destroy.

People With Fewer Filters Use E-mail

Furthermore, nearly all employees have business email.  However, the formal memorandums and documents from departments are often filtered through several layers of the corporate management.  Because of this, the people writing emails are much more likely to admit the truth and discuss it, not knowing it may later be revealed.  They might not even know of the cover up.

E-Mails Have a Smaller Radar Signature

Emails are also more likely to be overlooked.  Because of the low corporate rank of many email authors, as well as their abundance; they often miss out on later corporate attempts to hide the truth in a drug error case.

Why Are Emails So Difficult To Delete?

Multiple E-Mail Copies

Email correspondence is difficult or impossible to entirely eradicate.  Multiple copies are typically sent to various people.  This means the same correspondence is on multiple devices, computers, and servers.  There are even “blind copies” that may be sent out without others knowing.

E-Mails are Backed-Up

Emails are also backed up as a matter of policy.  These backups exist on multiple users’ computer systems.  When further backups occur, backup programs tend to take the most robust version of the backup; meaning the erased e-mails may be sent back to the main database.

Many People are Copied on E-Mails

Multiple edited copies of emails may exist.  Each version of the email may be contained in a separate file and therefore may be discovered.

People Overlook E-Mail Permanence

Business executives often do not realize their emails create a semi-permanent record.  Some treat emails as merely another form of verbal office banter.  They assume after they delete the email from their own eyesight, it is deleted from computer storage entirely.  Even email communication that is intentionally created as temporary (think Snapchat) leaves a permanent trail that can be recovered and used.

How Do Drug Error Law Firms Find Hidden Electronic Information?

E.S.I. or electronically stored information includes secret hidden data within it.  This is known by many names:

  • Hidden data
  • Embedded data
  • Metadata

This secret hidden information contained in every file is a means by which deleted and hidden electronic files can be recovered.

What Metadata Reveals

Hidden Metadata contains information on the location and basic aspects of various versions of a file.  It can contain who authored it.  It can contain file size.  It contains file location.  It contains the identity of the computer that created it.  Metadata can even reveal who opened and viewed the E.S.I.

Metadata or “embedded data” is often even more valuable than physical evidence.  This is because it is more difficult to alter.  It is more difficult to hide or fake.

Think of a physician who denies he saw prescription language for an antibiotic allergy, prescribes the antibiotic anyways, and causes Stevens – Johnson Syndrome in some poor victim.

The physician may deny seeing a physical prescription.  However, Metadata may reveal that the physician opened the antibiotic allergy disclosure, viewed the allergy disclosure, as well as the date, time, and computer he used to do so.  Such invaluable information not only would reveal the truth but also be persuasive to a drug error trial jury.

How Bad Guys Hide Electronic Information And How To Find It.

Expect for the party that committed the drug error or its insurer to try to hide or disguise electronic information of the wrongdoing.  The following techniques are used:

Print And Forget

Defendants will offer to print out on physical paper the electronic files.  First, this eliminates Metadata and prevents you from discovering useful information contained within it.  It also hides their methods of obtaining the data, meaning more may be found that is not revealed in the physical printout.

This is a technique where they don’t intentionally hide information.  They merely use an ineffective means of retrieving it and therefore it never reaches you.

The Changing File Types Shell Game

Drug error defendants may offer to convert electronically stored information to .tif files or .pdf files.  This is because .tif imaging and Adobe .pdf files do not contain the Metadata stored within them.  ‘

Since you cannot retrieve that data; you cannot use it against them at trial.

Hiding The Method

Any math student will know that to pass an exam they need to show the teacher their work.  That is because it possible to guess an answer to a mathematics problem, or cheat off someone else and merely write down the answer.  By showing your work, you can display your mastery of the subject.

So too, drug error defendants will not fully reveal the method by which they extract electronic data.  By hiding their method, the drug error lawyer cannot determine whether the drug defendant’s method was what was agreed upon, whether the method was an effective means of searching, or whether the method covered all sources.  Drug error lawyers  must insist upon transparency on the method used.

Narrowly Construing Search Terms

Defendants seeking to hide electronic information may insist upon search parameters that are too narrow to find all of the pertinent drug error information.

In addition, they may request search terms that are too few in number.  By asking too few questions of the computer; the computer gives too few answers.

How To Avoid Drug Error Electronic Information Hiding Techniques

It will be impossible for a drug error victim or lawyer to stay entirely up to date on electronic means of hiding, deleting, or altering evidence.  I recommend realizing your shortcomings and hiring professionals to define the method and terms of the search and also carry out its implementation.

Such firms use software known as “predictive coding” and “technology assisted review programs” to effectively seek out the truth and reveal the drug error evidence.

Remember; you are typically fighting a professional, large corporation.  This will not be its first drug error lawsuit.  be aggressive and target your efforts to reveal the truth on their weaknesses.  This is because you will have less experience with its computers, techniques and methods.  You will have fewer resources.  Use its size, confidence, and lies against it.  Good luck and may you uncover the truth.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

 

 

 

Bibliography: