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From the Chair

Learn More and Get Involved!

By Gretchen Miller

Whew! It has been a whirlwind few months for the Product Liability Committee!  With an incredible display of hard work, flexibility, and grit (did I mention flexibility?), our Committee put on three quality seminars between August and September this year.  A giant thank you to James Weatherholtz, our immediate past chair, who led this incredible team to continue our commitment to quality programming coupled with outstanding networking opportunities through the most challenging of times. 

In August, we gathered at our Product Liability Conference in Nashville.  With great thanks to Lindsay Lorimer, our Program Chair, who led the charge in planning (and re-planning) this Conference, we were able to put on a great program, covering topics from the use of data from wearables to the failure to heed warnings to a dynamic presentation by William Gage on adopting plaintiff’s visuals at trial.  Jason Wasserman led the charge in planning a series of great networking events, from tours of the Grand Ole Opry and the Ryman Auditorium, as well as a fantastic Thursday night indoor/outdoor networking event at Ole Smokey.

Just a few weeks later, we traveled to Washington, D.C., and gathered for our Strictly Automotive Seminar, led by SLG Chair Heather Fine, and our Fire Science Litigation Seminar, led by SLG Chair Katy Regier.  Both programs brought their usual collection of outstanding content and speakers, and, thanks to sponsors, ESI, Exponent, Jensen Hughes, and SEA, attendees from both conferences had the opportunity to watch a live burn in person and learn about fire investigation.

Our Committee is back on regular schedule in 2022, when we will convene for our next Product Liability Conference in Las Vegas, from February 2–4, 2022.  Program Chair Rick Griffin has put together another outstanding program, including a discussion about the product safety debates over the evolving trend of legislation on Right to Repair, as well as a demonstration of different styles for openings and closing arguments from trial veterans John Fitzpatrick and Rod Richmond.  Registration is open, so be sure to register today!

Among all the hard work we’ve put in to bring great programming, there is a special comradery within our Committee that makes our time together all the more special.  This is a group of dynamic, hard-working and, most importantly, fun people, which makes the networking opportunities at our seminars second to none.  If you’d like to get involved with the best Committee in town, please don’t hesitate to reach out to me, Vice Chair Trey Bourn or our Membership Engagement Chair Rob Shields.  We have plenty of ways to get you involved!

miller_gretchenGretchen N. Miller is a Shareholder in the Litigation Practice of Greenberg Traurig’s Chicago office.  She concentrates her practice in product liability and toxic tort litigation in state and federal courts.  As trial counsel, Gretchen has tried cases on behalf of manufacturers of consumer, industrial and automotive products.  As national counsel, Gretchen oversees litigation nationwide and counsels clients on risk management strategies and compliance with regulatory authorities, including the CPSC, NHTSA and EPA.  Gretchen is the DRI Product Liability Committee Chair, is a member of IADC, and is recognized as an Illinois Super Lawyer.



A Tale of Two Statutes

Limitations Applicable to Wrongful Death Claims Allegedly Caused by a Defective Product

By Annie Anderson, Bryan Cross, and Jasmine Reed

It is well established that a “claim for relief arises,” and thereby triggers Colorado’s Product Liability Statute of Limitations, C.R.S. § 13-80-106 (the “Products Statute”), when a plaintiff knew or should have known that injury or damage occurred because of a product defect. Boyd v. A.O. Smith Harvestore Prod., Inc., 776 P.2d 1125, 1127 (Colo. App. 1989). However, until Lynch v. CRC Industries, Inc., No. 1:19-cv-02399 (D. Colo. 2019), no court had addressed whether the Products Statute applies in wrongful death cases where an allegedly defective product causes the death. Such claims could be alternatively governed by the wrongful death statute of limitations, C.R.S. § 13-80-102(1)(d) (the “Death Statute”), which is triggered at the time of death. While the limitations period is the same (two years), the deadline for filing will differ in cases where a person survives an initial injury but later dies. Litigants now have an answer to the question of which statute controls under such circumstances.

The Lynch matter was a toxic tort case that stemmed from Plaintiff’s allegations that her husband’s metastatic bladder cancer arose from working with various chemicals, solvents, and products over the course of twenty years at an aerospace company. Although her husband was diagnosed in 2016, Plaintiff delayed filing a lawsuit until almost three years later, a little less than two years after his death.

The Products Statute provides:

Notwithstanding any other statutory provisions to the contrary, all actions . . . brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product shall be brought within two years after the claim for relief arises and not thereafter.

C.R.S. § 13-80-106 (emphases added). Two defendants in the Lynch case moved to dismiss the lawsuit pursuant to the Products Statute, asserting that all claims were barred because Plaintiff’s claims for relief arose at the time of her decedent’s diagnosis. (Plaintiff sued eight separate manufacturers believed to have created or sold the various products with which her decedent worked. Following the magistrate judge’s favorable Report and Recommendation on limitations, the remaining defendants joined in the motion. Ultimately, all claims against all defendants were dismissed on limitations grounds.) Plaintiff countered that the Death Statute controlled and that limitations thereunder did not commence until the date that her husband passed away, almost a year after his diagnosis. (The Death Statute states that “[t]he following civil actions . . . must be commenced within two years after the cause of action accrues, and not thereafter: . . . All actions for wrongful death.” C.R.S. § 13-80-102(1)(d) (emphasis added).)

The court ultimately agreed with Defendants, specifically finding that the limitations period was triggered by the diagnosis in October 2016 and then ran for two years. The court concluded that the plain language of the Products Statute contemplates application to product liability claims for death as well as injury and expressly negates “any statutory provisions to the contrary.” To the extent that a conflict exists between the Products Statute and the Death Statute, the court found that the Products Statute is more specific, addressing a discrete class of cases (i.e., product liability actions), and therefore controls over the more general Death Statute, which facially applies to all claims for wrongful death. See Persichini v. Brad Ragan, Inc., 735 P.2d 168, 172 (Colo. 1987) (“In the absence of a clear expression of legislative intent to the contrary, a statute of limitations specifically addressing a particular class of cases will control over a more general or catch-all statute of limitations.”); see also Kambury v. DaimlerChrysler Corp., 50 P.3d 1163, 1166 (2002) (holding that a similar products liability statute of limitations controls over the wrongful death statute of limitations). (Denying a motion for reconsideration that raised, in part, a new argument that the Products Statute should apply only to direct product liability causes of action asserted by the injured party, while the Death Statute should apply in wrongful death cases brought by a spouse or heirs, the court noted that such position has no support and ignores the patent overlap and consequential conflict between the express provisions of the two statutes of limitation.)

The impact of Lynch on Colorado product liability cases remains to be seen.  For many product liability cases where the basis for a claim and the ultimate injury occur on the same day (such as a fatal crash caused by a defective bicycle), there is no actual conflict between the statutes of limitations, and this ruling will have no impact. In cases where an allegedly defective product causes patent injury that does not result in contemporaneous death, however, the impact could be significant. Arguing that a plaintiff who has lost a loved one is precluded from any recovery, or even a day in court, can be a risky proposition given the resources required to draft such a motion and the natural hesitancy of courts to grant them. Nonetheless, the Lynch case may encourage more defendants to take that leap of faith to file a motion to dismiss, hopefully resulting in greater clarity concerning procedural rules that have gone unchallenged for decades.

Proper application of the Products Statute, as occurred in Lynch, will likely prompt potential plaintiffs to bring their claims earlier rather than later. Although an absolute bar to wrongful death claims timely filed under the Death Statute but in contravention of the Products Statute may seem harsh, the reality of the situation is that waiting until an injured person passes away before filing a lawsuit deprives potential defendants of the benefit of that person’s testimony. Defendants are then forced to conduct extensive discovery in an effort to obtain information from secondary sources that may only have been possessed by the decedent (for example, the brands, frequency, and details of work performed with allegedly toxic products). Furthermore, discovery prejudice to product liability defendants in the form of spoliated or lost information would be exacerbated the longer an injured person survives if the Death Statute were to apply to claims for wrongful death allegedly caused by a defective product. The Lynch decision balances the interests of the parties and at least removes one source of speculation in a game that often already feels like “pin the tail on the donkey.”

anderson_annie_biocross_bryan_bioReed_JasmineAnnie Anderson is an associate of Wheeler Trigg O'Donnell LLP in Denver, where she represents clients in complex commercial litigation matters. Annie is a member of the DRI Product Liability Committee, as well as the DRI Young Lawyers and Women in the Law Committee, among others.  Bryan Cross is a partner of Wheeler Trigg O'Donnell LLP in Denver.  Jasmine Reed is an associate a Foley & Lardner LLP in Chicago.



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2022 DRI Product Liability Conference

Speaker Spotlight: Jerry W. Blackwell

jerryJerry W. Blackwell is chairman of Blackwell Burke PA, a Minneapolis trial firm. He serves as national trial and class counsel for several Fortune 500 companies. Mr. Blackwell recently won a defense verdict in the nation's first consumer microwave popcorn case tried to a jury. He routinely defends large corporations in high-stakes, nationwide, class actions. Jerry will be a featured on the main stage during the upcoming DRI Product Liability Conference, February 2–4, in Las Vegas

1.  What is your practice area and what types of cases have you been working on lately?

My practice is in the complex civil arena, and that encompasses a broad swatch. Right now, that runs the gamut from medical device cases to antitrust actions to even civil RICO. I also usually have a docket of toxic tort cases as well. I enjoy the variety, as there are always new challenges and things to learn.

2.  I know that you were a member of the trial team prosecuting Derek Chauvin. What was your role on the team and what was that experience like for you?

I was a co-lead trial counsel on the team. It was a unique role as a purely civil practitioner with no criminal experience. I was lucky to have a fantastic team from my own law firm and others who volunteered their time and hard work to give me the legs to serve in that role. The role was both foreign and very familiar in parts—the criminal aspect of the case was like Martian landscape to me given my civil background, but other aspects of the case were perhaps more familiar to me than to the career prosecutors. Toxic tort and environmental cases live at the intersection of law and medicine, and I had decades of experience addressing medical causation issues like those in Chauvin and examining medical experts when most prosecutors have little such experience. The many trials and mocks I’ve had around the country over the decades provided keen insights into how jurors make decisions as well as how to shape themes and a compelling narrative. That is also not the experience of a typical prosecutor. The trial was very much an amalgamation of complex civil meets criminal.

3.  What is your practice area and what types of cases have you been working on lately?

My practice is in the complex civil arena, and that encompasses a broad swatch. Right now, that runs the gamut from medical device cases to antitrust actions to even civil RICO. I also usually have a docket of toxic tort cases as well. I enjoy the variety, as there are always new challenges and things to learn.

4.  I know that you were a member of the trial team prosecuting Derek Chauvin. What was your role on the team and what was that experience like for you?

I was a co-lead trial counsel on the team. It was a unique role as a purely civil practitioner with no criminal experience. I was lucky to have a fantastic team from my own law firm and others who volunteered their time and hard work to give me the legs to serve in that role. The role was both foreign and very familiar in parts—the criminal aspect of the case was like Martian landscape to me given my civil background, but other aspects of the case were perhaps more familiar to me than to the career prosecutors. Toxic tort and environmental cases live at the intersection of law and medicine, and I had decades of experience addressing medical causation issues like those in Chauvin and examining medical experts when most prosecutors have little such experience. The many trials and mocks I’ve had around the country over the decades provided keen insights into how jurors make decisions as well as how to shape themes and a compelling narrative. That is also not the experience of a typical prosecutor. The trial was very much an amalgamation of complex civil meets criminal.

5.  In your experience, should lawyers approach jury trials any differently post-COVID-19? Has there been any shift in thinking or deliberations, as far as you can tell?

Distancing and masking requirements can affect how the evidence and arguments are presented for in-person trials. Lawyers and witnesses cannot count on being able to stand directly in front of the jury to present or explain evidence. Setting up of the viewing monitors has to be done with more care and attention. As for the jury itself, jurors are the same, though COVID gives us all a broader shared experience that may be relevant to certain cases. I was concerned that juror rights to opt out of jury service due to COVID concerns could leave a non-representative panel, potentially skewing a trial result. But I have not seen that across even a couple of lengthy trials during COVID. I have not yet had a jury trial by video.

6.  What’s your favorite thing about practicing law?

I enjoy a lot of things about practicing law. Our trade is one that can bring about an immediate and positive impact in the lives of others for the better. Personally, I enjoy solving problems, taking a complex problem, and finding the simplicity that lies just on the other side of it. I enjoy the fact that every case is new—new facts, law, witnesses, processes, or venue—and the kind of creativity that each case demands to anchor it to the sensibilities of jurors.

7.  We look forward to hearing you speak in Las Vegas in February. What’s the topic of your presentation and what should people expect to learn?

THINK LIKE A JUROR AND TRY ANY CASE TO WIN”

Bringing a “jurOR-centric” focus to every aspect of trial may change the way you as a practitioner think about every phase of trial, from voir dire to evidence presentation to opening and closing statements. Come to learn new ideas on how to be more effective in presenting to juries.

Join DRI’s Product Liability Committee in Vegas!

Enjoy the bright lights of Las Vegas with DRI’s Product Liability Committee! This conference will focus on product liability challenges in the face of an ever-changing landscape. Attend top-notch programming, stemming from collaboration with the committee’s 18 specialized litigation groups. Educational topics range from how right-to-repair legislation is impacting product safety to a jury’s mindset after the past two years. Register now!