Evidentiary issues and damages

Pretrial discovery and disclosure

What is the nature and extent of pretrial preservation and disclosure of documents and other evidence? Are there any avenues for pretrial discovery?

While much of the public’s focus with respect to litigation is on trials, in federal or state civil litigation involving product liability claims, the vast majority of time, effort, expense and motion practice is typically expended on pretrial fact and expert discovery. One of the earliest steps that litigants and lawyers must take is to preserve any potentially relevant factual evidence (eg, documents, letters, electronically stored information and electronic communications (email)) that may help determine the outcome of the case. Attorneys will usually send their clients formal instructions to preserve potential evidence and initiate efforts to collect such evidence for review prior to possible disclosure to opposing parties.

The federal courts and many state courts also have rules requiring certain ‘initial disclosures’ to be exchanged early in the case identifying individuals, documents and other potential evidence that may be relevant to the issues being contested in the case. These initial disclosures can help guide the early stages of fact discovery and may assist in identifying key witnesses who should be deposed (ie, questioned under oath).

Both federal and state jurisdictions have an extensive set of rules governing pretrial fact and expert discovery. The scope of permissible discovery in both federal and state courts tends to be broad, allowing the discovery of not only information that may eventually be admitted at trial, but also information that may lead to discovering admissible evidence. This discovery takes place in two forms: written discovery and testimonial discovery.

Written discovery is performed in three general ways: through interrogatories (questions directed to the opposing parties), requests for admission (requests for the opposing parties to admit or deny important facts) and requests for document production (requests for the opposing parties to produce copies of certain documents, communications and other evidence). The responses to such written discovery requests must usually be provided under oath and can potentially be used against the responding party in either pretrial proceedings or even at trial. Responding parties must provide their responses and any objections to the written discovery requests within a set period of time (eg, 30 days), although the parties often reach informal agreements to extend these deadlines. Failing to respond in timely fashion can have important negative consequences, such as waiving certain objections or deeming the responding party to have admitted important key facts.

After written discovery, there usually will be testimonial discovery of fact or expert witnesses, or both. Testimonial discovery takes place in the form of depositions, where an attorney may question a fact or expert witness under oath, with opposing attorneys also present and able to ask questions. The testifying witness may or may not be represented by an attorney at the deposition. Before depositions may take place, they are ‘noticed’ by a party to the witness and any attorney or attorneys representing the witness. Witnesses deposed in a case may include individuals who are not parties to the case but may have knowledge of certain important facts. Witnesses typically testify at deposition about facts relating to the particular case, unless the witness has been designated as an ‘expert’ who may provide opinions on important factual, scientific or legal issues in dispute.

Completion of pretrial discovery and disclosure may take many months or even years to complete. After the completion of fact and expert discovery, motion practice regarding what facts and expert opinions may be admitted as evidence at trial usually begins. The determination of what factual or expert evidence may be admitted as evidence at trial can have an important impact on the ultimate outcome of the case.


How is evidence presented in the courtroom and how is the evidence cross-examined by the opposing party?

After all the time, effort and cost expended in pretrial discovery, the parties will argue to the court about what factual evidence or expert opinions are admissible as evidence in trial. Federal and state courts adhere to certain rules governing the admissibility of different kinds of evidence. Evidentiary rules can differ substantially depending on the jurisdiction in which the court resides. The judge acts as a gatekeeper to ensure that any evidence admitted at trial is admitted in compliance with the applicable evidentiary rules. For factual evidence, the party seeking to admit such evidence at trial must establish a proper foundation for the showing that it is both authentic and relevant to the case. The admissibility of expert opinion at trial is often based on such criteria as the qualifications of the expert, the relevance and reliability of the opinions and the methodology employed by the experts to reach their opinions. Recent proposed changes to the federal rules governing the admission of expert testimony clarify that the party seeking to admit the expert’s opinions at trial must demonstrate the admissibility of those opinions by a preponderance of the evidence.

The presentation of evidence at trial begins with opening statements, when opposing attorneys give the jury and judge a preview of the evidence to be presented. Evidence is usually presented in the form of testimony under oath from live witnesses. Under certain circumstances, the testimony of a witness may be presented through a recording or transcript of a pretrial deposition. Fact witnesses may testify only about factual matters within their personal knowledge or understanding. Expert witnesses may offer opinions on complex factual, scientific or legal issues that are typically beyond the personal knowledge or understanding of a layperson. During their testimony, the witnesses may be asked questions about important documentary evidence (eg, memoranda, letters, email, photographs, or other electronic or tangible documents). In most modern trials, extensive use is made of video and computer technology to present this type of evidence to the jury or judge. After one party introduces and questions a witness on ‘direct examination’, the other parties have an opportunity to ‘cross-examine’ the witness by asking their own questions.

During trial, it is common for one side to object to the opposing party’s efforts to introduce certain evidence. When such an objection is made, it is up to the judge to determine whether that evidence may be admitted and presented to the jury. If an objection is made after inadmissible evidence has already been presented to a jury, the judge may issue an instruction directing the jury to ignore the inadmissible evidence.

Closing arguments offer the opposing parties an opportunity to summarise key evidence and to argue for their view on how the jury (or judge) should interpret such evidence. Closing arguments also provide an opportunity for each party to argue why the evidence does, or does not, establish important elements of a product liability claim.

Finally, after closing arguments, the jury (or the judge in a bench trial) will be given an opportunity to deliberate on the evidence presented and possibly reach a verdict on the claims at issue.

Expert evidence

May the court appoint experts? May the parties influence the appointment and may they present the evidence of experts they selected?

Product liability litigation almost always involves opinion testimony from experts. Testimony from experts can have a profound impact on the results of a trial, and product liability trials can often evolve into a ‘battle of the experts’. Properly qualified experts may present opinions on important factual and scientific issues. Certain expert witnesses may be qualified to provide limited opinions on important legal issues, for example, what specific federal or state regulations required of a defendant manufacturer. However, expert witnesses, like fact witnesses, are not permitted to provide an opinion on any ‘ultimate’ or final issue or question that is reserved for the jury or judge to decide such as whether a defendant manufacturer should be held liable for failing to warn the plaintiff of certain dangers associated with a product.

The scope of the testimony and opinions that an expert witness may provide at trial is usually determined before trial begins. A party opposing the admissibility of some or all of an expert witness’s opinions may move to exclude them from evidence. The judge serves as a ‘gatekeeper’ and will determine whether some or all of an expert’s opinions meet the standards of reliability required to make them admissible at trial.  

An expert’s opinions may be previewed for a jury or judge during opening statements. In closing arguments, the parties will typically summarise the opinions of their respective experts and argue how those opinions do or do not help to establish plaintiff’s product liability claims. It is up to the factfinder (whether the jury or the judge) to determine how much weight is to be given to each expert’s opinions in reaching a verdict.

Compensatory damages

What types of compensatory damages are available to product liability claimants and what limitations apply?

If a plaintiff prevails on a product liability claim, the jury or judge may award the plaintiff monetary relief, called ‘damages’. Compensatory damages are a monetary award intended to make the plaintiff whole for a claimed injury or loss. There are two basic types of compensatory damages: economic damages (sometimes called ‘special’ damages) and non-economic damages (or ‘general’ damages). Economic damages may be awarded to compensate for losses such as medical expenses for treating an injury, physical damage to property, and loss of earnings. Non-economic damages are intended to compensate for pain, suffering, emotional distress, or loss of consortium (the loss of benefits from a relationship with a partner, spouse, or family member due to injuries caused by the defendant). Unlike non-compensatory damages, discussed below, compensatory damages are not intended to punish the wrongdoer.

Compensatory damages in product liability cases are typically governed by state law. If the jury or judge reaches a verdict favourable to the plaintiff, they will typically specify the compensatory damages awarded, if any, on the same verdict form. In some trials, a verdict is first reached on a defendant’s liability, and then separate proceedings are held before the jury or judge to determine the specific amount of compensatory damages that are to be awarded. Some state jurisdictions have placed limits on the types and amounts of compensatory damages that may be awarded.

Non-compensatory damages

Are punitive, exemplary, moral or other non-compensatory damages available to product liability claimants?

Unlike compensatory damages, non-compensatory damages, also known as ‘punitive’ damages, are intended to punish the wrongdoer. Some US jurisdictions have specifically prohibited the awarding of punitive damages for product liability claims. Other states place limits on the circumstances under which punitive damages may be awarded or cap them at certain amounts. For example, many states permit a punitive damages award only when the defendant has been found to have acted fraudulently or with malice. Punitive damages are intended to deter such reprehensible conduct.

While punitive damages are generally governed by state law, the United States Supreme Court has held that federal Constitution’s due process requirements impose limits on the amount of punitive damages that may be awarded. The United States Supreme Court has suggested that a punitive damages award that exceeds compensatory damages by more than a 9 to 1 ratio violates due process. It has also identified certain factors that may be considered in determining whether punitive damages are excessive under the Due Process Clause, including the reprehensibility of the defendant’s conduct, the ratio between punitive damages and compensatory damages and whether civil or criminal penalties could be imposed for similar conduct. It is not uncommon for trial or appellate judges to limit or reduce the amount of punitive damages awarded by a jury to a successful product liability plaintiff.

Other forms of relief

May a court issue interim and permanent injunctions in product liability cases? What other forms of non-monetary relief are available?

In certain litigation cases, plaintiffs may seek, and courts may grant, injunctive relief. For example, a court may issue a preliminary or temporary injunction to prohibit certain actions of a defendant (eg, prohibiting the marketing of a product) while litigation proceeds to adjudicate the plaintiff’s claims on the merits. If the plaintiff prevails, the court may issue a permanent injunction prohibiting the defendant from engaging in certain acts. Similarly, courts may also be asked for declaratory relief or judgment (eg, that a certain chemical is harmful and should be banned), which in many jurisdictions is a distinctly separate cause of action. This declaratory relief or judgment is usually intended to clarify the rights, duties and obligations of one or more parties or to settle a disputed issue. These forms of relief are intended to supplement, and be separate from, any award of monetary damages. However, preliminary or temporary injunctions, as well as claims for declaratory relief, are relatively uncommon in product liability cases. As an initial matter, the primary authority (primary jurisdiction) for regulating certain products such as medical devices, pharmaceuticals, and chemicals may rest with a federal administrative agency (for example, the Food and Drug Administration for medical devices and pharmaceuticals, the Environmental Protection Agency for certain chemicals), and courts are wary of interfering in that federally mandated regulatory scheme. Courts are also wary of issuing an injunction that could potentially cause great harm to a defendant product manufacturer or seller before the case is fully adjudicated. For these and other reasons, while non-monetary forms of relief (injunctions, declaratory relief) are sometimes sought in product liability litigation, they are uncommonly awarded by the courts.