In order to defend a product, you must know that product. From microscopic particulates in cosmetics to 20-ton pile driving rigs, from lip balm to excavation and mining equipment, from medical devices to HVAC equipment, products do not fit neatly into well-defined boxes. Understanding the particulars of the products that we defend and how they are used is what sets us apart from other firms. We get into the weeds and, when needed, get our hands dirty in order to understand how our client’s products function and how they are used. Too often attorneys are thought of as unwilling to put on hard hats, steel toe boots, or Tyvek suits in order to trudge through factories or job sites to inspect products or to attend a real-world product demonstration. That is, however, exactly what the Morgan & Akins product liability practice group does. Our clients do not have to settle for counsel who has a mere passing acquaintance with their product. When we assume their representation, they get pros in a myriad of fields including powered industrial machinery, commercial machinery, heavy construction equipment, recreational equipment, consumer products, medical devices, and many others.
Each and every defense that we undertake requires that we first answer the question: “Has the product been clearly and accurately identified?” Gone are the days where consumers were faced with only a handful of products from which to choose. In many cases, there are dozens of seemingly similar products available on the market, and often opposing counsel simply assumes that he or she has identified the product at issue correctly. Other times, durable products are subjected to post-market modifications which may change their appearance, only further confusing opposing counsel. We have seen, first hand, how both foreign and domestic manufacturers have copied well-known designs, often in ways that are so clever that telling the knock-offs from the genuine article can be difficult. However, all too often, copied products contain shortcuts and cost saving measures which compromise quality and safety. Inaccurate product identification is the single most common route for early case/claim dismissal. We, along with our hand-picked, highly-skilled experts, work rapidly and effectively with our clients at the outset of the defense, to determine if inaccurate or vague product identification represents a viable early-out strategy. Another initiative Morgan & Akins’ product liability group undertakes at the outset of litigation is the determination of what contracts and agreements apply to the product and/or our client. As a product maneuvers through a distribution chain, often multiple entities come into contact with it in one way or another. Agreements between these entities govern their respective relationships and many times, these writings often hold the key to potential early exit from the case through indemnification or defense provisions. Having a codefendant’s firm represent a client, or at least pay for the defense costs of our client, is a tremendous opportunity which should not be overlooked. Conversely, should an agreement between the parties compel the assumption of another entity’s defense, our clients need to know as soon as possible. Our comprehensive analysis of product related documents, at the very early stages of the case, ensure that we are on top of each of these issues.
The second question that every product defense must address is: “Can we account for the entire stream of manufacture and distribution of the product?” In some cases, answering that question is easy. It may be as simple as the Claimant/Plaintiff having purchased the product directly from the manufacturer. However, the bulk of the matters that we are confronted with involve complex distribution chains which often involve post-market modifications. In the case of products which are components intended for use in finished products, the stream of distribution may go from the manufacturer, to a subcomponent assembler, to a finished product manufacturer, to a re-badger/distributor, before being stocked on the shelf of a retail seller. Accounting for and understanding each link in the chain is vitally important because the product at issue may have been changed along the way and its performance may have been impacted by how it interacted with other systems. It is only through thoroughly documenting the path by which the product made its way to the Claimant/Plaintiff that defense counsel can be sure that all of the appropriate parties are involved in the matter and to ensure that perfectly good products are not blamed for failures caused by outside sources. The members of the Morgan & Akins product liability practice group are experts in wading through even the most complex product distribution chains.
At Morgan & Akins, we understand that the products that we defend are not the only products involved in our cases. Our clients’ businesses are also products and we take the time to develop an understating of what makes them tick. As a result, our process demands that we develop an understating our clients’ company ethos. We take the time to learn our clients’ business history, to understand the people that make the business function, and to familiarize ourselves with its people. Product liability lawsuits are unique in that the design and functionality of a thing, rather than a person or entity, is on trial. To some, these items are merely inanimate devices or pieces of machinery. To opposing counsel, they are inherently dangerous things which, but for the carelessness and/or stinginess of manufacturers, would have been made safe. But to our clients, and to us, these products represent years, and sometimes decades, of painstaking research and development. During our team’s combined half-century of experience in the products liability space, we’ve learned that our clients take great pride in the products that they produce. We are keenly aware of the “invisible components” of sweat, equity, and financial risk that our clients have incorporated into their products. Each member of the Morgan & Akins product liability practice group takes ownership of every product he or she defends. We make it a point to defend both the product itself as well as the clients who design them.
With this in mind, the Morgan & Akins product liability team takes a new and different approach to each and every case. Unlike many other firms, we do not simply check off boxes on a form when preparing a defense. Just as an expert sommelier carefully observes, smells and tastes an unfamiliar wine, pulling out the individual flavor profiles, tannins and aromas which compose a particular vintage, we approach each case as a unique blend of facts and circumstances. In that respect, we pledge to have a comprehensive and detailed litigation plan to each of our clients within thirty to sixty days of receipt of a suit. We expect that the dialogue between the client and our office remains transparent and honest throughout the litigation process. Additionally, as each attorney in the product liability practice group is barred in Pennsylvania, New Jersey, and New York, our team provides class-leading ability in handling claims brought against our clients in any of these jurisdictions. We are well-versed in the state statutes, federal statues, applicable case law precedent, and courtroom procedures. Whether our clients face suits alleging design defect, manufacturing defect, failure-to-warn, negligence and/or warranty claims, we know the law and how to apply it to our clients’ maximum advantage. Given our breadth of experience, we are able to anticipate our opponents’ moves and counter them effectively with a host of defenses including but not limited to, product modification/misuse, state of the art, feasibility, federal preemption, statute of repose, and unavoidably unsafe but highly necessary products. We know that a product loses its utility when every conceivable safety feature available is thrown onto it, and we do not allow our opposition try to misrepresent and confuse the importance of the risk-utility analysis. When our clients’ products are called into question, we don’t need to scramble to get up to date on the legal landscape. Instead, our expertise kicks in immediately, allowing us to start our plan for defense. We convey this plan to our clients and working alongside them, hand-in-hand, until the matter concludes.