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?

Federal and most state courts provide for liberal pretrial discovery, not only through interrogatories and depositions, but through requests for the production of documents as well. The federal courts and many state courts require the parties to file or exchange ‘initial disclosures’ early in the case to identify all individuals, documents and tangible things that may be relevant to the issues.

The federal and state rules also generally provide for broad document discovery procedures through which a party may discover any non-privileged information reasonably calculated to lead to the discovery of relevant evidence. The responding party may either simply produce the information sought, object and produce the discovery, or object and refuse to produce the discovery. It may additionally seek a protective order from the court. The court is generally empowered to punish discovery misconduct through sanctions up to and including entry of judgment against the offending party.

Given modern and constantly evolving mechanisms of electronically maintaining, storing, and archiving mass amounts of documents, electronic discovery of documents and information, also known as ‘e-discovery’, can be an extensive, complex and time-consuming process. The duty to ‘preserve’ documents and other electronically stored information (ESI) begins as soon as litigation is ‘reasonably foreseeable’, and the duties of preservation, collection, review and exchange of electronic documents and ESI continue throughout the litigation.


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

Each court has its own rules for the admission of evidence, and these differ between states and federal jurisdiction. Generally, the proponent of the evidence is required to lay a foundation for the evidence to show that the evidence is both authentic and relevant.

Evidence may take the form of testimony from live witnesses or testimony obtained from a pretrial deposition, and witnesses may be either fact witnesses, who are permitted to testify as to their own personal knowledge, or expert witnesses, who can offer opinions on more complex issues.

With limited exceptions, statements made out of court are barred as ‘hearsay’ if offered to prove the truth of the matter asserted. The parties may also seek to present tangible evidence, including exemplars, so long as the presenting party first authenticates the evidence.

Expert evidence

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

Expert testimony is generally a function of the parties, as opposed to the courts. Expert testimony is regularly used in situations where certain expertise would be beneficial to the determination of a factual issue, though experts may not opine on the ‘ultimate’ or final issue in dispute. Generally, to be admissible, their opinions and methodologies must be based on scientifically reliable principles. Expert testimony may be subject to challenge through a ‘Daubert motion’, which is a specific type of motion in limine raised before trial that seeks to exclude expert testimony from presentation to a jury.

Compensatory damages

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

Damages for product liability actions are typically governed by state law. Under the majority of jurisdictions, compensatory damages may include both pecuniary damages (including economic losses) and non-pecuniary damages (including intangible losses such as loss of consortium or pain and suffering). Several state laws also include damages caps.

Non-compensatory damages

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

Many states authorise a product liability claimant to seek punitive or exemplary damages in circumstances where the defendant acted with malice or intent, or was grossly negligent, or in cases of fraud. The purpose of these damages is to punish or deter such conduct. Depending on the jurisdiction, a product liability claimant may need to establish punitive damages under an enhanced evidentiary standard. The US Supreme Court has limited the amount of punitive damages that may be imposed, reasoning that excessive awards for punitive damages may run afoul of the US Constitution.

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?

Yes. Courts are permitted to grant both temporary injunctions pending resolution of the trial on the merits, as well as permanent injunctions. Courts are also authorised to award ‘equitable’ relief that serves as a way to compensate injured claimants outside of monetary damages.