New York Product Liability Attorney Anthony Gair: Trial of the Plaintiff's case

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• published: 29 Oct 2013
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This video is an extract of the New York State Bar Association Program "LITIGATING THE PRODUCTS LIABILITY CASE: LAW AND PRACTICE" If you would like to see the complete program (with different speakers) a live webcast option will be available on Friday November 1st 2013 for the Albany Program. Click here for more info http://www.nysba.org/store/events/registration.aspx?event=0DC91 In this video, New York Product Liability Lawyer Anthony Gair explains how to prepare and try a product liability case. The following points are covered: COST The costs involved for the plaintiff's attorney can be astronomical. It is not unusual to accumulate well over $100,000.00 in expenses prior to trial. TIME AND PUTTING IT TOGETHER, Be prepared to spend a countless number of hours on your case. Not only will you have to learn all there is about the particular product, you must learn the principles of safety design engineering. CHOOSING THE LIABILITY EXPERT The following should be taken into account when hiring the liability expert or experts: 1. EDUCATION 2. WORK EXPERIENCE 3. PROFESSIONAL ORGANIZATIONS 4. PATENTS 5. COURSES TAUGHT 6. PUBLICATIONS 7. PRIOR TESTIMONY AND POSITIONS TAKEN DIRECT AND CROSS-EXAMINATION OF THE EXPERTS The foundation for the cross-examination of the defendant's safety design expert must be laid at his deposition. The most important expert for the defendant and for the plaintiff to effectively cross-examine is the design engineer employed by the defendant who actually took part in the design of the product. USE OF THE PRINCIPLES OF SAFETY DESIGN ENGINEERING IN A PRODUCT LIABILITY CASE BASED ON NEGLIGENT PRODUCT DESIGN In product liability cases predicated upon the negligent design of a product, such as almost any type of machine which is to be used by people of varying training and skill it is imperative for the plaintiff's attorney to understand the basics of machine design. This is crucial in New York where the plaintiff's culpable conduct is a defense to a strict product liability action so that the percentage of fault for his injury may be, if not eliminated, reduced as much as possible INCORPORATING THE PRINCIPLES OF SAFETY DESIGN ENGINEERING IN CROSS-EXAMINATION OF THE EXPERT In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff's culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff's failure to use the product properly or to follow warnings which caused the plaintiff's injury. In New York the plaintiff's culpable conduct is a defense in a Products Liability case. The problem confronting the plaintiff's attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users of products are people and that people can make mistakes which must be guarded and warned against. DEMONSTRATIVE EVIDENCE In a Product Liability case, demonstrative evidence is crucial to deflect the defendant's attack that the expert never inspected the product, never designed a similar product, never built a mock up of the alternative design and the usual allegations of "junk science." HANDLING THE JURY If you are in State Court, you will have the opportunity to at least speak with the jury for thirty minutes to an hour in most jurisdictions. In Federal Court, the judge will ask the questions. It is a rare case in which a judge will ask the most important questions the plaintiff's attorney submits. It is crucial, whether done in jury selection or in your opening to develop a theme, which you will have thought about before even deciding to take the case. The plaintiff's attorney must understand that the jury will usually have the mind set that the corporation who designed and manufactured the product knew what they were doing and what befell the plaintiff was his fault for not using the product properly or failure to heed instructions or warnings. Thus the plaintiff at the outset must turn this around and use it to his advantage. ANTHONY GAIR is regarded as one of the best plaintiffs attorneys in New York in the field of product liability and defective products. He was named LAWYER OF THE YEAR 2011, PRODUCT LIABILITY LITIGATION, NEW YORK CITY AREA by BEST LAWYERS where he has been listed every year since 2007. Anthony Gair has also been listed yearly in SuperLawyers since 2006. He also was selected to become a Member of The Law Dragon Top 500 Attorneys in The United States.