AIEG Paralegal Board News
AIEG Paralegal Board Members Future AIEG Webinars Welcome New Paralegals 2025 AIEG Paralegal Seminar Agenda Curious About Kratom?
Investigating Potential Products Liability Cases
Uncovering Manufacturer Failures
5 Ways Paralegals Can Help with Discovery Tesla CAT Love Your Cases
Feb. 27 - Mar. 1 | San Antonio, TX | La Cantera Resort & Spa
ATTENTION AIEG PARALEGAL MEMBERS:
AIEG is excited to announce our 2025 AIEG Paralegal Seminar will be held in San Antonio, Texas. Join your fellow paralegals during our top-notch program and explore with them a city steeped in more than 300 years of tradition and heritage. Register today!
Please call the host hotel at 1-210-558-6500 to reserve a room in the AIEG room block by January 27, 2025. Please reference event name and the group code, AIB2625A. Agenda on page 4.
Emma Parnham Jaime Jackson Law
It’s hard to believe it’s already December and we’re into Holiday season. It seems to sneak up on me every year. No doubt everyone is busier than ever trying to support clients at a difficult time of year, wrap up work, squeeze in shopping, organize families, and think about how to celebrate the Holidays, or just relax with family and friends. However you spend your time, on behalf of the Board, we wish you health and happiness.
This time of year is always an opportunity to reflect. Personally, I would like to extend my thanks to the AIEG Paralegal Board and AIEG staff for their tireless work in support of this wonderful organization. Like most things in life, the more one puts in, the more one gets out. Whether it’s attending seminars where we can all share and learn together and catch up with old friends (and meet new friends), contributing to the listserv, authoring articles for our amazing ParalegalVoice, or presenting and coordinating webinars, or at paralegal seminars, AIEG would not be where it is today without the input of its membership. Thank you to the Board, staff, and to all of you for making it happen.
Another important announcement: Sign up for the AIEG Paralegal Seminar! If you want to learn about or improve your knowledge on all things discovery, this seminar is for you. Or just come for the social! Our seminar co-chairs Tiffany Gasca and Joy Pullman have done an incredible job building out the agenda and securing presenters. The seminar will be held from February 27 – March 1 at the La Cantera Resort and Spa in San Antonio, Texas. Don’t forget to book your room by January 27, 2025. With warm weather and a stellar location, hopefully we can top 2024’s record attendance.
Finally — don’t forget to share your documents! Send motions, discovery, expert reports, and anything else that will help those with similar cases or defendants to jill@aieg.com or submit them at the “submit Case Documents” link on the AIEG database — just drag and drop.
Wishing everyone a happy, healthy Holiday season.
Emma Parnham AIEG Paralegal
Board Chair
Emma Parnham
Jaime Jackson Law: Idaho & Pennsylvania Emma@jaimejacksonlaw.com
Laura Reaves
Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.: Montgomery, AL Laura.Reaves@BeasleyAllen.com
Troy Fleming
Lytal, Reiter, Smith, Ivey & Fronrath: West Palm Beach, FL tfleming@foryourrights.com
Adrienne Rizer
Parker Law Group, LLP: Hampton, SC arizer@parkerlawgroupsc.com
Rosi Castillo
The Russell Law Firm: Flower Mound, TX Rosi@rs-attorneys.com
Stephanie Wilkins
Law Office of J. Gregory Marks: Dallas, TX swilkins@jgmarkslaw.com
Tiffany Gasca
Davis, Bethune, & Jones: Kansas City, MO tgasca@dbjlaw.net
Doreen Lundrigan
The Cooper Firm: Marietta, GA doreen@thecooperfirm.com
Thank you to our presenters for 2024’s webinar series. Each webinar was well attended, and we will continue to offer webinars into 2025. Please watch the listserv for details.
2024 Webinars:
• February – Subrogation: Expect the Unexpected, presented by Krista Hoorman
• June - Uniform Interstate Depositions and Discovery Act, presented by Laura Reaves
• September - OnCue: Trial Software Presentation, presented by Rosi Castillo
• October – Life Care Planners: What a Life Care Planner Needs from Paralegals, What Type of Research They Do, What a LCP Looks For and How They Come to Their Conclusions, presented by Susan Guth, Medical Legal Services
• November – Structured Settlements: What They Are, the Benefits, and Disadvantages and Medicare/ Medicaid Set Asides, presented by Peter Scovill and Peter Wayne, Forge Consulting, LLC
If you would like to suggest webinar topics or volunteer your time to share your knowledge as a presenter, please reach out to Emma Parnham (Emma@jamiejacksonlaw.com).
Each quarter we plan to welcome new members to our AIEG Paralegal Division. If you see them post to the listserv with a question or comment, please give them a virtual high five and welcome them to the group!
Griselda Becerra
MLG Attorneys at Law Costa Mesa, CA
Katherine Cancello Whiting Law Group Chicago, IL
David Garber
Dormer Harpring, LLC Denver, CO
Crystal Ginn
Parker Law Group, LLP Charleston, SC
Reana Hinojosa
Elliott & Ritch
Corpus Christi, TX
Morgan Jewel Dormer Harpring, LLC Denver, CO
Jason Johnson
Crain Brogdon, LLP Dallas, TX
Ashley Reisman
Dormer Harpring, LLC Denver, CO
Erika Ruiz
Langino Law, PLLC Chapel Hill , NC
Todd Smith
MLG Attorneys at Law Costa Mesa, CA
Aimee Teran
Liddy Law Firm Pasadena, CA
Mikaela Trang
Andrew Waldron McMath Woods P.A. Little Rock, AR
Jane Williams
Ransin Injury Law Springfield , MO
Anthony F. Jackson Law Firm Bozeman , MT
Thursday, Feb. 27
Breakfast & Registration sponsored by The Ammons Law Firm
8:00 am
La Cantera III & IV
Tiffany Gasca, Joy Pullman 8:30 am
Welcome & Ice Breaker Activity La Cantera I & II
Wes Shumate, Keynote Speaker 8:50 am
Protecting Against Evil by Raising Awareness | Lessons Learned from Our Cases
Adrienne Rizer 9:35 am
E-Discovery: The Basics, Process and Ethics of E-Discovery
Doreen Lundrigan 10:05 am
So, You Want to Litigate in Federal Court? Not! (A Guide to Federal Discovery)
Break 10:35 am
Wednesday, Feb. 26
Welcome Reception sponsored by Jaime Jackson Law, Payne Mitchell Ramsey, Accurso Law Firm and U.S. Legal Support 6:00 pm
Esparza Lawn
Meghan Martinez, Donna Sonday 10:50 am
So, You Got What You Asked For. Now What? (A Guide to Bates and Organization)
Claudia Jenkins 11:20 am
Tips and Tricks When Handling Interrogatories and Requests for Production
Kate Carey, Laura Morales 11:50 am
Written Discovery: How to Prepare & How We Answer Roundtables
Adjourn 12:35 pm
Friday, Feb. 28
Breakfast sponsored by Davis Bethune & Jones
8:00 am
La Cantera III & IV
Lee Ann O’Neal
8:30 am
Client Interviews: Don’t Just Hear... LISTEN! The Power of Active Listening Can Help You Better Understand Your Clients' Perspectives, Needs, and Concerns. (Part 1 of 2)
Erin Powers
9:00 am
Executing Your Litigation PR Strategy (Part 2 of 2)
Rebekah Cooper
9:30 am
Legal Ethics: Where Is the Line? (And How Not To Cross It)
Emma Parnham
10:00 am
2025 Paralegal of the Year Award
Break 10:15 am
Tamara Brininger, Liz Oakley
10:30 am
Transforming the Value of Your Case Using Video Documentaries
Brian Petri
11:15 am
Testimony that Resonates: From Preparation to Persuasion
Stephanie Wilkins, Rosi Castillo
11:45 am
Voir Dire Workshop: Navigating Jury Selection: Voir Dire Strategies for Paralegals Roundtables
Adjourn 12:35 pm
Saturday, March 1
Breakfast 8:00 am La Cantera III & IV
Meg Hartnett, Leah Cruzan
8:30 am
Essentials of Deposition Scheduling: Coordinating for Optimal Results
Sarah Loftus
9:00 am
Enhancing Discovery Efficiency: ChatGPT Solutions for Drafting Clear Responses
Josh Wooten 9:30 am
Investigation and Discovery – Enhancing the Discovery Process in Civil Litigation
Break 10:00 am
Caitlin Clancy 10:15 am
Embracing Excellence over Perfection to Help Maintain your Mental Health in Legal Profession
Ofelia Penn, Rosi Castillo 10:45 am Deposition Summaries/Indexing
Tiffany Gasca, Joy Pullman 11:15 am Seminar Q&A
Adjourn 11:45 am
Brandi Gillam The Cooper Firm
What is Kratom?
Kratom is an herbal extract that comes from the leaves of an evergreen tree called Mitragyna speciosa. The tree grows in Southeast Asia. Kratom users can chew the tree’s leaves, swallow or brew dry kratom, or add the extract to a liquid. People who use kratom report that at low doses, kratom acts as an upper, called a stimulant. That means it makes them more alert and gives them more energy. At higher doses, people who use it report that it reduces pain and makes them feel calm and less anxious, also called a sedative. Users swear by kratom for lifting mood and boosting energy, but there are many safety issues and questions about whether kratom works.
Some studies have found that some kratom sellers add more of the active ingredient than kratom naturally has. And because kratom products lack clear labels, it’s not possible to know how much kratom people who use it take.
Some people take kratom to ease the symptoms of quitting opioids, called withdrawal. Kratom may be easier to get than prescription medicines. But it carries its own risk of addiction. People who use kratom to relax or to be more social most likely think that kratom is natural and safe because it comes from a plant. But the amount of the active part in kratom leaves can vary greatly. So, it’s hard to know the effects of a given dose. Kratom starts to work in minutes. The effects last a few hours. The more kratom you take, the stronger the effects are.
Depending on the amount of active ingredients in the product and the health of the user, taking kratom can be harmful. There are too few studies to be able to rate the claims about the benefits of kratom.
Available at:
Kratom: Unsafe and ineffective - Mayo Clinic
Side Effects and Safety
Kratom has many known side effects:
• Weight loss.
• Dry mouth.
• Nausea and vomiting.
• Constipation.
• Liver damage.
• Muscle pain.
• High blood pressure.
• Dizziness.
• Drowsiness.
• Smells, tastes, sights, touches or sounds that seem real but aren’t, called hallucinations.
• False beliefs, called delusions.
• Depression.
• Trouble breathing.
• Confusion, tremors and seizures.
• Death.
Based on the opinion of our expert Susan Cadman, no one ever verified that kratom products are reasonably safe for human consumption, either before or after they were marketed. There is public information, including that of the Federal Drug Administration that identifies serious injuries regarding the toxicity of kratom in multiple organ systems, including death.
Kratom has been the cause of deaths all over the United States. Because kratom is classified as a “dietary supplement”, it is still not approved by the FDA or any other drug administration; therefore, kratom is a real issue. The U.S. FDA has not approved any prescription
or over-the-counter drug products containing kratom or its two main chemical components, mitragynine and 7-hydroxymitragynine. This drug has no regulation regarding dosage amounts or how often this drug should be taken. Kratom is sold in gas stations, and smoke and vape shops by vendors with no knowledge or education about what kratom is. The product is kratom and the defect is people taking the product and dying or becoming seriously injured. Kratom is affecting a wide variety of people from all walks of life. Kratom cases have become increasingly more popular with product liability firms worldwide.
The challenges that you will face when taking on a kratom case are many by far. The problem with kratom cases is that you will need to “pierce the corporate veil.” So many kratom vendors and distributors hide behind other entities, so initially every entity must be named in the lawsuit. What our firm has learned is that a lot of the vape stores are the “veil” that hide the kratom suppliers. Once you can find the chain of command the case will become a lot easier. Another challenge that we faced was that many kratom users often try different brands of kratom, this can cause conflicts for who is responsible for the injury or death. Discovering which brand was consumed by your client will be one of the biggest hurdles, but once established, your case will be well on its way.
Engage with medical professionals, researchers, and addiction experts when taking on a kratom case. Conduct as much research as possible regarding the effects of the kratom supplier that you name in your lawsuit. It is important to hire private investigators to investigate where the kratom is being sold, especially if the supplier and distributor are aware that the product has caused severe injuries or death. A warnings expert is also helpful to speak to the label on the kratom products. These cases are tough, but important to bring awareness to: children as young as 12 years old are consuming kratom.
Troy L. Fleming
Lytal, Reiter, Smith, Ivey & Fronrath
Aproducts liability defect case is a type of legal action in which a person who has been injured or suffered damages as a result of using a defective product seeks compensation from the manufacturer, distributor, or seller of the product. In such cases, the plaintiff (the person bringing the lawsuit) claims that the product was defective and that the defendant (the company responsible for the product) is liable for the damages caused by the defect.
Product liability civil litigation is a legal concept
that holds manufacturers, distributors, and sellers responsible for any harm or injury caused by their products. The history of product liability civil litigation can be traced back to the early 19th century when the Industrial Revolution brought about a significant increase in the production of consumer goods. Initially, manufacturers were not held liable for the safety of their products, and consumers had little legal recourse if they were injured or harmed by a faulty product. However, as the number of injuries and fatalities caused by defective products increased, courts began to recognize the need for legal remedies to protect consumers.
In the early 20th century, courts began to recognize the concept of “strict liability,” which held manufacturers liable for injuries caused by their products regardless of whether they were negligent. This concept was first recognized in the United States in the case of MacPherson v. Buick Motor Co. (1916), where a car manufacturer was held liable for a defective wheel that caused injury to a consumer. The concept of strict liability was further developed in the 1960s and 1970s, when courts began to apply it to a wider range of products, including drugs, medical devices, and consumer goods. In the landmark case of Greenman v. Yuba Power Products, Inc. (1963), the California Supreme Court held that manufacturers were strictly liable for injuries caused by their products, regardless of whether they were negligent. Since then, product liability law has continued to evolve, with courts and legislatures adopting new standards for determining liability and compensating victims of defective products. Today, product liability litigation is a complex and highly specialized area of law, with many different theories of liability and procedural requirements depending on the jurisdiction and type of product involved.
Evaluating product liability cases involves assessing the legal and factual elements of the case to determine the likelihood of success in a court of law. Determine early if the defect is causally related to the injuries sustained. Here are some key factors to consider when evaluating a product liability case.
1. Product Defect: Identify the defect in the product that caused the injury. There are three types of defects: design defects, manufacturing defects, and marketing defects.
2. Causation: Establish a clear link between the defect and the injury. In other words, prove that the defect directly caused the injury or damage.
3. Warning and Labeling: Determine if the product contained adequate warnings or instructions to
prevent injury.
4. Negligence: Determine if the manufacturer acted negligently in the design, manufacture, or marketing of the product.
5. Damages: Evaluate the extent of the injury or damage caused by the defect and the financial losses incurred as a result.
6. Statute of Limitations: Determine if the case was filed within the statute of limitations, which varies from state to state.
7. Jurisdiction: Identify the appropriate jurisdiction in which to file the lawsuit.
8. Liability: Assess the likelihood of establishing liability on the part of the defendant.
By carefully considering these factors, an attorney can evaluate the strength of a product liability case and advise their client on the best course of action. Product liability claims against automobile manufacturers can be challenging because they typically involve complex legal and technical issues. To succeed in such a claim, the plaintiff must show that the vehicle/product was defective or unreasonably dangerous and that the defect caused their injuries or damages. This can require expert testimony, scientific evidence, and a thorough investigation into the design, manufacture, and testing of the vehicle/product.
Additionally, automobile manufacturers often have substantial resources to defend against product liability claims, including experienced legal teams and expert witnesses. As a result, plaintiffs may face significant challenges in proving their case and obtaining fair compensation for their injuries or damages. However, successful product liability claims against automobile manufacturers have been made in the past. These lawsuits ultimately led to increased safety standards for automobiles and a greater emphasis on consumer safety in the industry.
While challenging, product liability claims against automobile manufacturers are not impossible to win.
The outcome of such claims will depend on the specific facts of each case and the strength of the evidence presented. That is why the investigation is so critical regarding the facts discovered.
The first question in evaluating a potential new products case is, has the potential new client suffered catastrophic injuries? (Costly protracted tenacious litigation) Let’s take a look at some examples.
• Extensive burns
• Loss of a limb
• TBI - Traumatic Brain Injury
• Spinal cord injury (paralysis)
• Permanent scarring and/or disfigurement
• Ruptured kidney, spleen, liver, or bowels
• Fatality
• Permanent & total vocational impairment
Also, we need to have causation. In other words, did the defect cause the injury?
The second question in the investigation is, do we have the product? This is an extremely important question here that we must find out within the first time speaking with the potential new client. If so, secure the evidence immediately! Not all the time, but in most cases if there is no product, there is no case. What is a product? (An article or substance that is manufactured or refined for sale.)
The third question, is what is the Statue of Limitations and Statute of Repose (when did the product enter commerce)? The Statute of limitations in a civil case is a law that sets a specific time limit within which a legal action must be filed. Once the statute of limitations period has expired, the claimant can no longer bring a legal action against the defendant, regardless of the strength of their case. The purpose of the statute of limitations is to ensure that claims are brought promptly and to prevent the possibility of stale claims being pursued long after the relevant evidence has been lost or destroyed. The length of the statute of limitations
period varies depending on the type of claim and the jurisdiction where the case is being heard.
The Statute of repose refers to a specific type of time limit that bars a party’s right to file a civil lawsuit after a certain period of time has passed since the occurrence of a specific event. For example, in civil litigation cases, a statute of repose sets an absolute deadline for filing a claim, which is typically measured from the date of a particular event, such as the completion of a construction project or the sale of a product. Unlike a statute of limitations, which typically begins to run when a plaintiff knows or should have known of an injury or damage, a statute of repose sets a hard deadline for filing a claim regardless of whether a plaintiff is aware of the injury or damage caused by the event. Once the statute of repose expires, a plaintiff is barred from filing a lawsuit.
There are four types of product defects that incur liability in manufacturers and suppliers (sellers/ suppliers, distributors, vendors, non-manufacturer/ non-certified repair facilities and maintenance repair facilities):
• Defective design defects make products inherently dangerous, as they exist before the product is manufactured. While the item might serve its purpose well, it can be unreasonably dangerous to use due to a design flaw.
• Its foreseeable use is dangerous to the user and/or public.
• Manufacturing defects occur during the construction, production, or refinement of the product.
• It’s made unsafe due to errors during the actual manufacturing/construction of the
3. Defects in Marketing (Failure to Warn/Safety Warnings)
• Defects in marketing deal with improper instructions and failures to warn consumers of latent or potential dangers in the product.
• Nonobvious dangers of a product are not adequately conveyed to the user and/or public.
4. Hidden or Concealed Defects
• Defective Process/Toxic Foods
• Toxic Chemicals in Products
• Dangerous Medications
It is important to consider potential theories when investigating a product liability case involving an injury which includes one of the following:
1. Strict liability: This theory holds that a manufacturer is strictly liable for any injuries caused by a defective product, regardless of whether the manufacturer was negligent.
2. Negligence: This theory holds that the manufacturer was negligent in some way, such as in the design, manufacture, or marketing of the product, and that negligence caused the injury.
3. Breach of warranty: This theory holds that the manufacturer breached an express or implied warranty of the product’s safety or fitness for its intended use, and that breach caused the injury.
4. Failure to warn: This theory holds that the manufacturer failed to provide adequate warnings or instructions for use of the product, and that failure contributed to the injury.
5. Design defect: This theory holds that the product’s design was inherently dangerous or defective, and that the defect caused the injury.
6. Manufacturing defect: This theory holds that a defect occurred during the manufacturing process, such as a defective part or substandard
materials, and that defect caused the injury.
Products liability law usually requires that the person who has been injured or suffered damages proves all of the following things (these are called the “elements” in your claim) in order to win:
• They were injured or suffered damages.
• The product is defective.
• The defect caused your injury.
• They were using the product as it was intended.
As a general rule, you want to look at all parties involved in the product’s chain of distribution (the path that the product takes from manufacture to distribution to customers). Often businesses between the original manufacturer and the end user include multiple vendors that provide “value added services” to the whole product or just a component part of the “defective product”. These are sometimes referred to as “Value Added Contractors” or “VAC’s.” At the beginning of the chain of distribution is the manufacturer of the injury-causing product.
If the defective component is part of a larger product, you should include both the manufacturer of the defective part and the manufacturer of the product itself. So, for example, if you were injured by a car with an exploding battery, you would bring your vehicle defect product liability claim against both the car manufacturer and the manufacturer of the battery (as well as any additional participants in the chain of distribution discussed below). If your claim involves a manufacturing defect, you would include any qualitycontrol engineers used by the manufacturer; if your claim involves a design defect, you would include any design consultants used by the manufacturer, and potentially any VAC; and if your claim involves a failure to warn or provide adequate instructions, you would include any technical experts retained by the
manufacturer to help write the instructions for the injury-causing product.
Even though the retail store where the product was purchased the injury-causing product probably didn’t manufacture it, the retailer may still be liable for selling you a defective product. In Florida and many states this is referred to as placing into the “Stream of Commerce.”
There may be a viable personal-injury case for the injured party in addition to the Work Comp claim. It is highly critical to align a workers’ compensation carrier to work with the law firm. This is to the workers’ compensation benefit to recovering their cost. The list of these potential tortfeasors in a crossover case comes from many factual scenarios including:
1. Multiemployer industrial worksite;
2. Defective Product;
3. Repair (Third Party);
4. Maintenance (Third Party);
5. Training defects (Third Party);
6. Dangerous conditions of public property;
7. Premises liability cases; and
8. Motor vehicle collision case.
To investigate civil product liability, we need to understand the steps involved in a product liability lawsuit. The first step is to establish that the product was defective, and this defect caused the plaintiff’s injury or damage. This can be done by showing that the product had a design defect, manufacturing defect, or warning defect. A design defect refers to a flaw in the product’s design that makes it inherently dangerous. A manufacturing defect refers to a flaw in the product’s manufacturing process that makes it different from the
intended design. A warning defect refers to a failure to provide adequate warnings or instructions for the product’s use.
Once the defect is established, the next step is to determine who is responsible for it. This can be the manufacturer, the seller, or both. To determine the responsible party, we need to consider the product’s chain of distribution, including manufacturers, distributors, wholesalers, and retailers. After determining the responsible party, the plaintiff needs to establish that the defect caused their injury or damage. This can be done by showing that the defect was the proximate cause of the injury, meaning that it was a direct cause of the injury or damage.
Finally, the plaintiff needs to establish the damages suffered as a result of the injury or damage caused by the defective product. This can include medical expenses, lost wages, pain and suffering, and other damages. Remember, every case is worked up from the beginning to take to trial.
Some things to consider and utilize in the case workup process are listed below.
• Preserve the evidence/product.
• Determine ownership and/or custody of the product.
• Ensure safe storage/protection of the product.
• Determine product history (purchase to date of accident).
• Secure product operation and maintenance manuals, instructions, directions, and suggested applications.
• Photograph the product.
• Photograph the scene of the injury.
• Obtain accident/incident reports from other agencies.
• Obtain witness statements.
• Get the plaintiff’s account of the accident.
• Purchase exemplar model.
• OSI’s (search for other similar incidents). This is critical, as defense will possibly argue that “This Never Happened Before.”
• OSHA investigation report (Occupation Safety & Health Administration)
• FMCSA (Federal Motor Carrier Safety Administration)
• NHTSA (National Highway Traffic Administration)
• NTSB (National Transportation Safety Board)
• CPSC (Consumer Products Safety Commission)
• FDA (Food and Drug Administration)
• FTC (Federal Trade Commission)
• EPA (Environmental Protection Agency)
• Associations (Join Local/State)
• Standards ANSI, ISO, International, ASEAN
• EU Blue Guide (European Union Guide to Manufacturers)
• USPTO (United States Patent and Trademark Office)
• LOC (Library of Congress historical records of some products)
An expert is a person who has extensive knowledge, skill, or experience in a particular field or subject. This expertise is typically acquired through formal education, training, and practical experience. An expert is recognized as an authority in their field and is often consulted for their opinions, insights, and advice. They have a deep understanding of the underlying principles, theories, and practices in their area of expertise and are able to apply this knowledge to solve complex problems, make informed opinions, and provide guidance to the investigation. Put together a list of experts to reach out to that are willing to take an initial
look at the potential new case and evaluate the facts and give it a quick snapshot of their evaluation and not charge you (very helpful). Experts can tell you how great your case is in the beginning and 2 ½ years later take a step back with not as much confidence. Communicate periodically with the expert to assure availability near term and until case completion to ascertain potential health, business, and calendar conflicts.
The initial investigation in products liability cases is crucial because it sets the foundation for the entire case. This investigation involves gathering evidence, interviewing witnesses, and analyzing product designs, manufacturing processes, and marketing strategies. One of the primary goals of the initial investigation is to identify the potential causes of the product defect and determine who is responsible for the defect. This may involve examining the product design, testing the product, and analyzing how the product was manufactured. Additionally, the initial investigation can help determine the extent of injuries or damages caused by the defective product. This may include collecting medical records, speaking with medical professionals, and interviewing those who have been harmed by the product. The evidence gathered during the initial investigation will be critical in determining liability and proving a case in court. It is important to document all evidence and preserve it carefully to avoid any potential loss or destruction of evidence. Ultimately, the initial investigation is important because it can determine the success or failure of a products liability case.
One cannot dismiss that product liability claims over the past several decades has played a vital role in improving safety in products in a manner in which the product is designed, produced, manufactured and sold. Because product liability cases can be so costly to litigate an investigator must know not only how to investigate these cases but also how to evaluate them from the beginning for their perspective client/attorneys.
Throughout the various stages of product development, any number of things can go wrong, leading to dangerous and defective products and ultimately resulting in those injured seeking recompense. That is where our firms come in. In order to build the most effective case for each client, we must examine the supply chain and every company within it, analyzing their respective roles and ferreting out all the potential areas that could have contributed to any hazards and defects in the product in question. For the sake of simplicity (and keeping to the page count), this article will focus on the manufacturer, the entity responsible for the design and production stages of product development.
In its Handbook for Manufacturing Safer Consumer Products, the U.S. Consumer Product Safety Commission states, “… safety must be designed into and built into consumer products in the United States…”1 Typically, when a defective product reaches our firms by way of an injured consumer, this simple principle was not adhered to, and we need to find the evidence to prove that. In order to do this, we must first understand the best practices of manufacturing. Once we know these, we are better equipped to pinpoint the areas of failure.
The main point of reference guiding this article is the Handbook for Manufacturing Safer Consumer Products published in 2006 by the U.S. Consumer Product Safety Commission. While most of the practices outlined in this handbook are voluntary and not legal requirements, they are industry best practices and provide a valuable and authoritative frame of reference by which to critique manufacturers. These best practices can be condensed and divided among four areas of manufacturing: (1) Management Level, (2) Design Stage, (3) Production Stage, and (4) Post-Production. Below, I will provide a brief, but not exhaustive, summary of the tenets of these core areas. Following this overview, I will provide examples of questions to posit in written discovery to
help uncover deficiencies in each of these areas.
Safety should be a core value of the culture and management of the manufacturing company. A manufacturer should develop and mandate a formal product safety policy endorsed by top management and publicized widely within the organization (Handbook, p. 8). Additionally, safety should be prioritized alongside other business goals like profitability and efficiency, so a dedicated safety team or personnel should be established, and their safety responsibilities should be clearly outlined (p. 8).
Ensuring that each employee is properly and regularly trained for their respective roles is crucial to this culture of safety. The training should be applicable to the individual or team to which the training is provided (p. 9). For example, the training provided to senior executives may cover, among other things, how to implement a product safety process, while the training for product designers and engineers should focus on, among other skills, foreseeable use analysis, test methods, and safety standards (p. 9). Furthermore, each employee should have the requisite skills needed to do their specific job effectively. For instance, if an individual is designing a product, they should have the specialized knowledge required to safely and capably design that specific product (p. 20).
In order for safety to be built into the design of a product, the designers or design team should perform comprehensive design reviews. The goal of these design reviews is to timely identify potential product hazards through the meticulous examination of all aspects of the product, including the materials, each component part and the configuration of these component parts, packaging, and labeling (p. 9). Design reviews are conducted by way of Foreseeable Use Analyses which
are reviewed by a multi-faceted review team (pp. 9, 10).
A foreseeable use analysis takes into account how a consumer might use and/or interact with a product and is a critical step in the design process (p. 9). “Foreseeable use” refers to both the manufacturers intended use as well as the unintended uses that can reasonably be anticipated (p. 9). One type of foreseeable use analysis is a Failure Modes Effects Analysis (FMEA) (p. 9). During an FMEA, each component part is examined in an effort to determine how it might fail and what the consequences of said failure would be (p. 10). A fault tree analysis is essentially the reverse of an FMEA in that it works backwards from the consequence to uncover the sequence of events that lead to that consequence (p. 10). If and when safety hazards are identified, corrective action must be taken to design out these hazards whenever possible (p. 10). If it is not possible to design out these hazards, warnings should be designed and implemented to adequately warn the consumer of the hazard.
The team reviewing the risk analyses should consist of members who are knowledgeable about various aspects of safety and manufacture, such as consumer services, quality assurance, and standards and regulations (p. 10). If a company does not have the adequate expertise to perform these reviews in-house, they should look into outsourcing them (p. 10).
There are a lot of considerations and safety measures to be taken during the production stage. The safety of products depends on the quality of the raw materials and the assembly process (p. 10). Manufacturers should maintain strict control over suppliers through clear and precise purchase documents outlining design and safety requirements and, additionally, through inspections and audits of the suppliers’ facilities, operations, and materials, ensuring these materials meet their design specifications and industry standards (pp. 10, 11).
Many manufacturers outsource production to overseas factories. As such, it is crucial for manufacturers to provide detailed work instructions to these factories (p. 11). Among many other things, these instructions should convey how to perform inspections and testing to ensure the manufactured products meet design specifications and industry standards and should also include a means to keep track of the data from these tests (p. 11). Manufacturers should make sure their factories keep detailed records of not just testing data, but also records of specific operations within the factory and the identity of individuals performing these operations and their training and qualifications (p. 11).
Quality control processes should be established within factories. Prior to distribution, consumer products must be inspected and tested (p. 12). Testing and inspections should continue throughout production, with some products requiring the testing and inspection of each unit while others may be tested via a sample of products in a manner that is standardized and conforms to regulations (p. 12). Manufacturers should visit their factories periodically to confirm that all stages of production are in compliance with their design specifications and industry standards. They should also make sure measures are in place to overcome any potential language barriers that may exist.
Safety does not end with production. Manufacturers should ensure they have an effective product safety system in place to monitor their products post-sale, so detailed record keeping is paramount (p. 13). A system should be in place to handle consumer complaints and commentary and to document any actions taken in response (p. 13). Should corrective action need to be taken to change a design or some aspect of production, these changes should be made a matter of record and there should be a system in place to make sure these changes are incorporated into all documentation
affecting the product (p.10) In the event a recall is needed, it is vital the manufacturer is able to locate products within the production and distribution system so appropriate actions can be taken and a prompt and successful recall can be achieved (p. 13).
Under the Consumer Product Safety Act (CPSA), a manufacturer is required to report certain things to CPSC. Among these, under Section 15 (b) of the CPSA, they are required to report information which reasonably supports the conclusion that a product does not comply with a safety rule issued under the CPSA, or contains a defect which could create a substantial risk of injury to the public or presents an unreasonable risk of serious injury or death, within 24 hours of obtaining this information, 15 U.S.C. § 2064(b). Manufacturers are also required to report information about settled lawsuits to CPSC under Section 37 (b) of the CPSA, 15 U.S.C. § 2084.
In understanding the best practices in these four areas of manufacturing, we are better equipped to identify the failures that lead to the product defect. For your reference, I am attaching sample interrogatories and requests for production, categorized within these four areas, to include in your written discovery. However, it is incredibly beneficial to retain an expert witness in this area. Once they review the facts of the case, they will be able to provide more specific information and documentation to seek in discovery that is relevant to your particular product and industry. We have recently retained, and been very happy with, Robert (Rick) Brenner with Product Safety Advisors. His background and experience uniquely qualifies him to offer expert testimony in this area. He also graciously agreed to speak with me on this topic when I was preparing to write this article.
At our firm, we have seen failures across the board. We currently have a case set for trial beginning December 6th of this year in which the manufacturer grossly underperformed in each of these areas. The product
in this case, Rowedder v. Primal Vantage Company, Inc. and Dicks Sporting Goods, Inc. d/b/a Field & Stream, Case No. 2:22-cv-02371-RMG, is a climbing tree stand. The manufacturer responsible for producing this tree stand, Primal Vantage, had no standard safety procedures in place and employed no engineers or specialized design personnel. They outsourced production to a Chinese factory with virtually no oversight or quality control. They did not keep records of customer interactions. Unfortunately, these sorts of problems are common, since many manufacturers place profitability and efficiency before safety. It is also worth noting that one of the defenses put forward by Primal Vantage is that their product conformed to the safety standards outlined under ASTM F3249-20. While it is important for manufacturers to ensure their products comply with industry consensus standards, these standards should never be viewed as an absolute guarantee of safety and are always a “work in progress.” Additionally, voluntary standards subcommittees, which necessarily include participants whose interests are not always aligned, often result in minimally strict standards.
Manufacturers have a duty to build safety into their products, yet safety continuously takes the backseat to profits and efficiency, leaving consumers at risk. By understanding all the areas in which these failures can occur and identifying these failures, we can better advocate for our clients. Resources like the U.S. Consumer Product Safety Commission’s Handbook for Manufacturing Safer Consumer Products and insight from expert witnesses can help equip us with the tools needed to uncover these failures and strengthen consumer product liability cases.
1. U.S. Consumer Product Safety Commission. (2006). Handbook for Manufacturing Safer Consumer Products. https://www.cpsc.gov/s3fs-public/pdfs/ blk_pdf_handbookenglishaug05.pdf.
“Product” or “subject product” means the that forms the basis of this lawsuit and all substantial similar manufactured using the same or similar components.
1. Identify all employees involved in the design, development, and quality control of the subject product. For each individual, list the training and/or qualifications received.
2. Were any stages of the product’s design, development, and quality control outsourced to a third party? If so, identify that third party and provide their contact information.
3. Identify all training programs in place at COMPANY.
4. Identify all corporate, industry, and government standards applicable to the design, manufacture, and sale of the subject product. Be specific as to the procedures regarding design criteria, design development, the equipment, tools, materials, and machines selected for the design and manufacturing of the subject product.
1. All Standard Operating Procedures (SOPs) for design and development of the subject product and substantially similar products.
2. All SOPs for a) valuation of tier 1 and tier 2 suppliers for the subject product and substantially similar products; b) raw materials control; c) component oversight and control; d) final inspection and release; e) third party inspection and testing.
3. Produce the organizational chart of all job positions at COMPANY with involvement in the design, development, and quality control of the product.
4. Produce the job descriptions for each organizational chart position related to the product, including job responsibilities, educational requirements, and professional certifications required for each position.
5. Produce the resumes of the individuals in each listed position of the organizational chart at the time the subject product was designed, developed, manufactured, and shipped.
6. All communications and documents related to COMPANY’S vetting the capabilities, experience, qualifications, education, training, and certifications of engineers assigned to design the Product.
7. Produce all training materials for training programs in place at COMPANY.
8. Produce each and every of the following pertaining and applicable to the design, manufacture, and sale of the subject product:
• Corporate standards, specifications, or requirements;
• Industry and engineering standards or customs; and
• Governmental standards, specifications, or regulations.
1. List and describe all testing and evaluation conducted on the subject product to determine needed warnings, guarding, and product safety features.
2. Was a failure modes effects analysis (FMEA) or fault tree analysis conducted at any time during the design of the subject product to identify and/or mitigate safety issues and hazards with the subject product design? If so, who performed this analysis.
3. Was the subject product designed by Defendant? If it was designed by an entity other than the Defendant, please provide the name and address of the other entity and a detailed description of the relationship between the Defendant and, if applicable, the designers.
4. Name all persons, titles, and business entities either responsible for, and/or would have knowledge of the design of the subject product.
1. All communications, documents, photos, and test reports related to the original concept, development, specifications, final design, and all subsequent modifications or revisions of the subject product.
2. Documentation and reports from all formal risk assessments and hazard analyses conducted for the subject product, including documentation of all hazard evaluation studies conducted, such as Failure Modes Effects Analysis and Fault Tree Analysis.
3. Documentation of all alternate designs considered and studied for each potential hazard identified.
4. Documentation of all real-world tests conducted for the subject product, lessons learned, and design changes made as a result.
5. Documentation of any independent, professional engineering companies engaged to study, evaluate, and render a second opinion on the final approved materials, design or specification before the subject product went into production, including lessons learned and design changes made as a result.
6. Documentation of all third-party labs engaged to conduct formal testing of the Product in addition to the ATSM Standards specifically designed to test components, materials or characteristics of the Product.
7. All communications, documents, photos, and test reports related to subsequent modifications, revisions, and or changes of any kind to the design, materials, or specifications of the Product from the date it was originally designed to the present.
8. Produce the design drawings for the subject product from inception to present.
9. Copies of the on-product labels or warnings provided on the subject product over the course of its existence.
10. All warnings for the subject product.
11. All manuals for the subject product.
1. Identify the facility/factory responsible for the production of the subject product.
2. Identify the start date, completion date and number of units of the Product produced for all production runs within 12 months prior to the date Plaintiff purchased the Product.
3. Identify the raw material suppliers for all components of the subject product.
1. Copies of all reports and documents from third-party inspectors engaged to examine the factory’s purchase orders for the raw materials ordered for each production run of the Product to verify and confirm that the specifications of the raw materials ordered are in conformance with the material specifications of the final approved design. (Answers the question: Did the factory order the quality of material called for in the specifications or a mix of higher and lower quality materials)
2. Copies of all reports and documents from all third-party inspectors and third-party testing labs verifying that received raw materials selected at random by a third-party inspector and sent to be tested at an independent third-party lab are in accordance with the specifications of the raw materials ordered. (Answers the question: Does the material the factory received match what they ordered, or was cheaper material mixed in)
3. Documentation and copies of reports from the quality management system in place that COMPANY uses to monitor and oversee production quality at the factory that produces the Product.
4. Copies of all reports and original documents from all DUPRO quality control inspections conducted internally by factory personnel during the production of each batch or lot of the Product at each stage of production and for each component.
5. Copies of all reports and original documents from all DUPRO quality control inspections conducted by thirdparty inspectors during the production of each batch or lot of the Product at each stage of production and for each component.
6. Copies of all reports and original documents from all FINAL quality control inspections conducted internally by factory personnel at the completion of each lot, batch, or production run of the Product before shipment.
7. Copies of all reports and original documents from all final quality control inspections conducted by third-party inspectors at the completion of each lot, batch, or production run of the Product before shipment.
8. Copies of all Manufacturing and Technical Audits commissioned by COMPANY and conducted by a third-party inspection company evaluating the factory’s 1) Quality Management System; 2) Resources Management; 3) Stock Management; 4) Incoming Material Inspection; 5) Production Process; 6) Packing and Quality Control before Shipment; 7) Measurement, Analysis, and Improvement; 8) Corrective actions.
9. Copies of all Social Compliance Audits conducted by a third-party inspection company evaluating the factory’s 1) Legal Compliance practices; 2) Product Safety practices; 3) Employment practices (including forced and child labor); 4) Hours and wages; 5) Workplace conditions; 6) Subcontracting
10. Copies of all ASTM tests and certifications conducted during the production of each batch or lot of the Product to confirm compliance with ASTM Standards. Provide documentation confirming ISO/IEC 17025 certification of the lab performing the testing and certification, whether they were internally performed by the factory or a third party.
1. List any and all other incidents or reports of personal injury related the subject product or substantially similar products. Provide the contact information for all individuals reporting these incidents.
2. Identify the system in place to handle consumer contacts and complaints. If a third party is utilized, identify them and provide their contact information.
1. All records including detailed notes from all calls and/or complaints made by Product customers (or customer representatives) to any of COMPANY’S or vendor’s customer service points of contact, whether managed internally by COMPANY, vendor, on an external third-party database or by an external contractor, including contacts made in-store, by email, by USPO letter, by telephone (such as 800 numbers), by voicemail, by online chat, or any other way that customers are invited to contact vendor.
2. All records of contacts or claims by customers or customer representatives to COMPANY’S or vendor’s warranty claim points of contact including in store, email, by telephone (such as 800 numbers), online chat, and any and all ways that customers are invited to contact vendor.
3. All written, telephonic and/or electronic communications between CPSC and COMPANY related to PRODUCT related incidents either reported to CPSC (such as through CPSC’s saferproducts.gov website) or reported to CPSC by COMPANY or any of its retailers under Section 15 (b) of the Consumer Product Safety Act (CPSA).
4. Produce any ECNs (Engineering Change Notices) for the subject product from the time it first entered the stream of commerce until present.
5. All information pertaining to any lawsuits or claims involving personal injury related to the subject product and substantially similar products.
6. All warranty claim documents for the subject product or substantially similar products.
7. Any service bulletins, recalls, and retrofit campaigns that would have applied to the subject product.
Michelle Hockers Murphy & Prachthauser, S.C.
Discovery can be one of the most daunting parts of a case. The paralegal’s role in both preparing to answer discovery requests and organizing the discovery material produced by the defense is paramount to success. I’m sure many of you reading this already do all of these things in your everyday practice. These are just some of the ways I’ve noticed that paralegals can help make the discovery process easier.
1. Stay Organized.
The key to the discovery process is keeping everything organized. The Defendants always produce information in random order, and it is completely unusable. They generally produce a huge document dump of materials
labeled in what they consider “native format.” While the documents are usually Bates Numbered, searching through the materials as produced is nearly impossible. Inevitably, as the attorney prepares for a deposition, they will ask the paralegal for a particular document and need it immediately. If the file is not organized and the discovery materials are not organized by Bates Number, it creates problems for everyone on the team. The Defendants usually have teams of lawyers and individuals dedicated to the discovery process and on the Plaintiff side the same resources are usually not available. While every firm has a different system for inputting and reviewing discovery material, the paralegal on a case can make things much easier by ensuring that when the materials arrive, they are organized in a way that they are usable and searchable.
In addition, fights on discovery are inevitable. Meet and confer efforts are required before motions to compel can be filed and if you have all of the meet and confer letters, emails, and dates in one place, the writing of the motion is much smoother.
The Defendants ask in every case for the client’s prior medical records. If the first time we are asking for that information is when we are helping the client to answer discovery, it is too late. Most of the time, clients are not the best historians and forget many prior providers. If the defense gets the records and other providers are mentioned that were not listed in the discovery responses, we can lose credibility. At the beginning of the case before a lawsuit is even filed, start preparing for this question and order all of the prior records, review them for additional providers mentioned, and create a list that can later be input into discovery responses.
3. Stalk Your Client’s Social Media.
One of the areas where most clients get themselves in trouble in discovery relates to social media. Clients inevitably post on social media things we wish they wouldn’t have. Before a lawsuit is filed, do some Google searches of your own to see what information is available online about the client and see what is publicly available on social media. If the client’s social media settings are public, check for posts about the incident, their injuries, or posts that are inconsistent with the injury. If you find anything that could be related, it is important to meet with the client and download the information from the social media account and preserve the information. Then, have them increase privacy settings and encourage them not to post anything during the pendency of the case. Usually, by the time we are answering discovery, the Defendants have already done these searches and if we are not able to produce what they have found, they
use that against us. Periodically do this search to ensure the clients are listening to the advice of the lawyers not to post because oftentimes they do not listen and it is better if we have this information before the client is confronted with it by the defense.
4. Ensure Discovery Deadlines Are Calendared.
Each jurisdiction has different requirements on discovery, but most jurisdictions have some sort of discovery cutoff. It is very helpful when the paralegal on the case has a grasp of these deadlines and can help remind the lawyers at least 60 days in advance of any deadlines that any additional discovery to be served needs to go out and any motions to compel need to be filed. As the lawyers are busy fighting with the defense it can be easy to lose sight of these deadlines, and the reminders help ensure nothing important is missed before the deadline.
5. Use AIEG as a Resource.
Paralegals are often part of the discovery process whether it is drafting discovery requests, reviewing discovery material produced, fighting about protective orders, or helping with motions to compel. One of the major benefits of AIEG membership is the sharing of information on similar cases. Check the AIEG database for other similar incidents, sample discovery requests, cases involving the same product, protective orders involving the same manufacturer, sample motions to compel on similar issues, or materials produced in discovery on other similar cases. Use this information to help in the discovery process in your case. Our members and the information in our database helps us to level the playing field against the defendants who have unlimited resources. As you file motions, draft discovery, receive answers to discovery, confirm with the lawyers you can share them with AIEG and send in the documents. In addition, use the listserv. Chances are that a paralegal member from another firm has dealt with this issue and can help you too.
Josh Wooten
Cory Watson Attorneys
Tesla has positioned itself as a significant leading automotive manufacturer in electric and autonomous driving technology advancements. Among its most notable innovations is its collision avoidance system, a sophisticated blend of artificial intelligence, machine learning, and sensor-based detection designed to prevent or reduce the severity of accidents. However, as these technologies become
more prevalent, they introduce a complex array of legal questions — particularly surrounding product liability. How responsible is Tesla for accidents involving its semi-autonomous and fully autonomous vehicles? And what does the future hold for product liability claims as this technology evolves? This article examines Tesla’s collision avoidance technology, looking at its strengths and limitations while exploring the potential legal ramifications for the company and the autonomous
Tesla has utilized a plethora of technology over the years to develop semi-autonomous vehicles. Tesla’s robust technology-based fleet boasts Tesla Autopilot and Full Self-Driving (FSD) “supervised” systems. These technologies aid in developing Advanced Driver Assistance Systems (ADAS). Tesla initially integrated radar sensors for object detection and distance measuring. The system combined radar and a single forward-facing camera, which was introduced in 2015. The total vehicle camera system was introduced in 2016 and included eight cameras around the vehicle to collect more information and assist in developing the ADAS.1
Tesla briefly used Lidar technology, but due to its high cost and somewhat limited applications, Lidar was abandoned. Tesla Vision was introduced in 2021 for the Model 3 and Model Y vehicles, and in 2022, Model S and Model X vehicles began to use Tesla Vision. Tesla Vision moved away from using radar, lidar, and ultrasonic sensors (USS) and adopted the total car camera system, using cameras only to provide driver assistance. The camera system uses an advanced neural network and AI learning.3 The general public accepts technology as they better understand its usefulness and applications. Drivers today better understand radar and cameras. Drivers may not know precisely what an Ultrasonic Sensor is, but if they are presented with the
term “parking sensors,” they know the small circles on the front and rear of the vehicle help aid in parking and sensing objects, causing an audible or haptic alert to gain the operator’s attention.
Tesla Vision integrates its “vision-based occupancy network” to replace the inputs generated by USS. Tesla relies on data from their fleet to provide information that will aid in improving Tesla Vision over time and offer vehicle updates using “over-the-air software updates” to restore features when Tesla Vision achieves performance parity.3 Tesla can change vehicle features as the vehicles are connected via a cloud-based system and customer app. Customers can share vehicle data with Tesla, and collected data is used to develop AI learning and roll out vehicle features when they are ready. It would be easy to theorize that Tesla could also turn off/on vehicle features without the customer’s knowledge if that customer had previously consented to share vehicle data.
In early November 2024, Tesla provided an update to its AI roadmap. The FSD v13 update is expected to make the FSD feature “Unsupervised”.4 This is a vast difference from the former FSD ‘Supervised’ mode. FSD ‘Unsupervised’ suggests that Tesla’s AI learning capabilities have reached functionality where Tesla feels comfortable releasing such an update. Tesla will use a higher camera resolution and an increased camera capture rate.3 Implementing these features allows the FSD mode of Tesla cars to continue to learn and gain AI knowledge to expand on and deliver back to the overall fleet with the idea that all Tesla vehicles will be safer and better equipped when operating on the roadway. Tesla has gone all in on its AI integration. Tesla Vision is moving away from redundancy applications while many other auto manufacturers are doubling down on radar, lidar, GPS, and ultrasonic sensors.
What does this mean for potential product liability cases? If Tesla cars use FSD, supervised or unsupervised, does Tesla, the manufacturer, have liability if the vehicle
is involved in a crash? Or does the liability remain on the party in “control” of the car? Does this make it an automatic product liability claim versus a personal injury claim against the driver of the semi or fully autonomous vehicle? We are moving towards a new era of liability questions that will be open for debate, and new case law will be established over time to guide us through the proper method of handling these claims. In a potential case where a Tesla vehicle was operating in Full Self-Driving (FSD) mode “unsupervised” and caused a crash, liability could fall on Tesla, the vehicle’s operator, or potentially both, depending on various factors, including applicable laws surrounding this new technology and the specifics of the circumstances regarding the subject crash. Here are some key considerations:
Product Liability: Tesla could be held liable under product liability laws if it is shown that the FSD system had a defect or malfunctioned in a way that led to the accident. This could include software errors, hardware malfunctions, or issues with the design or implementation of the FSD system that make it unsafe.
Marketing and Representations: Tesla’s marketing and representations of FSD technology are critical. If Tesla markets its FSD system as capable of fully autonomous, unsupervised driving, it may have greater liability. Claimants could argue if Tesla markets its products in this fashion, they will assume responsibility for collisions involving their vehicles by implying their system could manage all driving tasks without driver input.
Regulatory Compliance and Warnings: Tesla’s adherence to safety regulations and the warnings provided to drivers about the limits of FSD are also important. If Tesla fails to communicate the need for driver supervision or misrepresents the system’s capabilities, this could increase their liability.
Duty of Care: If the operator was expected to supervise the vehicle (per Tesla’s guidelines or the law) but failed to do so, they might be partially or fully liable. Even with advanced autonomous features, many jurisdictions still require drivers to remain attentive and ready to intervene, which places some responsibility on the operator.
Misuse of FSD: The operator could share or be fully liable if the operator disregarded Tesla’s instructions or warnings (such as activating FSD mode in an unrecommended area).
Courts may assign shared liability if Tesla and the operator share fault in the crash. For instance, if the operator failed to monitor the system and Tesla’s FSD had a technical flaw, a court might split the liability between the two. This would also question whether the FSD should have been ‘supervised’ or ‘unsupervised’.
Some insurance policies may not fully cover autonomous vehicle incidents. This could also impact liability and coverage for the vehicle’s operator. Insurance companies could deny claims based on their determination of whether the vehicle operator’s use of FSD was safe at the time of the crash. As laws evolve alongside autonomous driving technology, future regulations might shift more liability onto the manufacturer if the vehicle operates in a mode marketed as “fully autonomous.” Currently, the decision depends on the vehicle’s level of autonomy, regulatory guidelines, and specific details related to the crash.
Tesla releases a Vehicle Safety Report each quarter to provide information regarding the safety of Tesla vehicles. Tesla reported 7.6 million miles had been
driven on Autopilot or FSD before an accident in Q1 of 2024.5
Fig. 2 Million Miles Driven Before an Accident Occurs
Tesla Autopilot/non-Autopilot/US Average2. Tesla shows a significant advantage in crashes per million miles driven versus the United States average, just north of half a million miles per accident. Tesla states it is engineered to be the safest cars in the world.2 Tesla’s Vehicle Safety Report highlights the company’s commitment to advancing safety through technology, reducing accident risks, and enhancing driver assistance. Tesla’s vehicles have active safety features that support safer driving in various conditions.2
The Insurance Institute for Highway Safety (IIHS) awarded the 2024 Tesla Model Y its highest ranking, the Top Safety Pick+ designation. This recognition reflects the vehicle’s exceptional performance across various safety evaluations, including crashworthiness and crash avoidance.6 The IIHS tested several collision scenarios along with front crash prevention for pedestrians. The testing rated Tesla as Good (G) in almost all tested categories. The 2024 Model Y operates with Tesla Vision, making the pedestrian detection/avoidance testing at lower speeds, 12-37 mph, interesting to focus on. The information developed from the testing would be used across the Tesla Vision platforms for all vehicles as the neural network and AI integration would update previous models with the most current Tesla Vision operating system. While Tesla has focused on cameras and Tesla Vision, the auto industry has gone in a slightly different direction.
Automotive industry safety standards seem to gravitate toward ‘Sensor Fusion,’ which combines two or more sensors to enhance the quality or boost the reliability of obstacle detection.7
Fig. 3 Modern vehicles can be equipped with a variety of sensors, including cameras, LiDAR, and radar systems as part of ADAS protection.8
Most auto manufacturers are moving toward redundancy rather than relying on a single type of sensor to support ADAS. A combination of short- and long-range radar, lidar, cameras, USS, and GPS is believed to create a superior ADAS. This redundancy enables the system to make decisions based on multiple inputs essential for operating in real-world scenarios. It also allows the system to function even if one sensor encounters an issue — such as a compromised radar or lidar sensor — by relying on other sensors to provide accurate data for ADAS driving decisions. As auto manufacturers progress toward higher levels of autonomy, most are betting on Sensor Fusion. Meanwhile, Tesla has fully committed to Tesla Vision, which relies solely on their camera system, neural network, and AI learning.
Tesla’s limiting sensor use could open the door for failure to equip claims if Tesla cars are involved in crashes. The
claim could be made that if Tesla used multiple available sensors and Sensor Fusion, as industry trends have embraced, potential crashes could be avoided. Tesla will have immense data to back its use of Tesla Vision. The individual car’s operating system to the vast neural network that will back its decision to operate using only Tesla Vision without the use of available radar, lidar, or other sensors. Tesla vehicles have been shown to be safe and reliable vehicles through testing and realworld applications. With this novel area of potential claims, a new variety of experts must be called upon to fully explain how Tesla’s intricate systems work. The usual experts will still need to be consulted for crash reconstruction, biomechanical insights, airbags, etc. Still, other experts qualified to testify to software and AI capabilities, automotive safety and ADAS innovations, and regulatory and compliance standards will need to be consulted to establish strong liability foundations.
Software and AI specialists can speak to the operating systems that assist in the vehicle’s ‘decision-making’ when involved in a crash. These experts can evaluate the functionality, accuracy, and potential failures of the vision-based system and if those systems potentially contributed to or caused the crash. ADAS experts would have knowledge of other manufacturer operating systems and an understanding of sensor fusion. They could provide context around which systems work best together or independently when autonomous features are used in Tesla and other manufactured vehicles. Regulatory and Compliance Experts can speak to vehicle compliance with safety standards and evaluate if Tesla’s design and over-the-air updates comply with industry standards and evolving autonomous vehicle regulations.
In summary, Tesla’s innovation and commitment to safety through CAT and ADAS lead the way for autonomous vehicles. As the future of driving unfolds, autonomous vehicles like Tesla’s have the potential to reshape transportation, reduce accidents and fatalities, and make roadways safer not only in the United States
but around the world. However, as autonomous vehicles share the road with drivers in complete control of their vehicles, crashes will continue to occur. Understanding the liability implications associated with autonomous vehicles and determining upon whom that liability rests is important. Autonomous vehicle features provide a safer roadway environment, and as we progress to a potentially fully autonomous automotive industry, decisive litigation will shape the future.
1. Stecklow, S., Cunningham, W., & Jin, H. (2023, April 6). Tesla workers shared sensitive images recorded by customer cars. Reuters. Retrieved from https:// www.reuters.com/technology/tesla-workersshared-sensitive-images-recorded-by-customercars-2023-04-06/#:~.
2. Tesla. (n.d.). Tesla vehicle safety report. Tesla, Inc. Retrieved November 8, 2024, from https://www. tesla.com/VehicleSafetyReport.
3. Tesla. (2024, October 10). Tesla Vision Update: Replacing Ultrasonic Sensors with Tesla Vision. Tesla Support. Retrieved from https://www.tesla.com/ support/transitioning-tesla-vision.
4. Singh, K. (2024, November 5). What’s coming in Tesla FSD V13. Not a Tesla App. https://www. notateslaapp.com/news/2354/whats-coming-infsd-v13.
5. Singh, K. (2024, August 8). Tesla’s Q2 2024 vehicle safety report: How it compares to Q1. Not a Tesla App. https://www.notateslaapp.com/news/2182/ tesla-q2-2024-vehicle-safety-report.
6. Insurance Institute for Highway Safety. (n.d.). 2024 Tesla Model Y 4-door SUV. Retrieved November 8, 2024, from https://www.iihs.org/ratings/vehicle/ tesla/model-y-4-door-suv/2024.
7. Spexarth, M. (2018). The future of automotive radar testing with modular solutions. National Instruments.
8. van der Linden, I. (n.d.). Choosing circuit materials for the different types of automotive radars in advanced driver assistance systems (ADAS). Advanced Connectivity Solutions, Rogers BVBA.
Love Your Cases (And They Will Give Up Their Secrets)!
Ann O’Neil, Peter O’Neil Schroeter Goldmark & Bender
James Washington, Jr. was a Seattle sculptor who found hidden beauty and power in the stone he worked. He didn’t carve away large chunks of the rock — he tapped and scraped it to reveal what he
knew would already be there. He explained his method by quoting his hero, scientist George Washington Carver:
“If you love a thing, it will give up its secrets to you.”
Carver, of course, loved the peanut. Washington loved art, nature, and spirituality.
We are a brother sister team who have spent our legal careers following the lead of Carver and Washington. We love our clients and cases — so much so that the infinite PDFs, photocopies, crash scenes, and crushed metal have given up their secrets to us again and again, through hundreds of cases over decades of work. We enter each case confident that by the end we will know the facts and documents better than anyone on either side, including those designated to testify pursuant to Rule 30(b)(6) or as “persons most knowledgeable.”
And we do it the way James Washington, Jr. carved stone, returning again and again to the investigation, to the documents, to the internet, to the evidence, tapping and scraping, obsessing, until they give up their secrets.
We may be served by our neurology and genetics. Peter was diagnosed as autistic at the age of 65. Autism has its own strengths and explains Peter’s natural instinct and inclination to dig deeply into every case, find patterns, spot details, and make connections. When Ann came on board as a clerk and then paralegal, she exhibited the same skills — an obvious genetic link. But we’re both certain our methods can be taught.
Love your cases. Love your clients. Love the evidence. Love the folders of PDFs. Return to them again and again, aimlessly or with dogged determination until they give up their secrets to you. If you persist, it will happen.
It starts with the clients. We get to know them and ultimately, (if possible), to love them. As current and former paralegals we have or had an advantage: we have access. The clients call us first with questions. We call them for answers. We request and devour their
medical records. In modern times we scour their social media pages. We have to. But because of this, we get to know them in ways few others do. And since most have survived catastrophic injuries, they become our inspiration.
Keep tapping and scraping, like a sculptor coaxing stone to give up its secrets. Get all the records — medical, police, fire. Get the recordings — 911, video surveillance. But then go wild and keep wilding as long as the case lasts. Peter remembers flying off rural highways into gravel sideroads with kids in tow because he spotted a particular tractor or dump truck and wanted to see it in person. He roamed junkyards to find exemplars and exemplar parts. He ducked under neighbors’ pickup trucks to check out some design feature he’d learned about. He roamed big box stores to collect bottles with childproof caps. He never stopped thinking about the products that were the subjects of his cases, and once he took a case, he saw those products everywhere.
Ann did the same thing, but online, using every spare moment, and many not-so-free hours, to creatively search the internet.
It started over 20 years ago, when Ann was a newbie in the legal field, working on one of a series of cases we had involving toddlers who fell from windows. A curious child, his bedroom with a third story window overlooking a seductive play structure; a room designed so that a bed could only be placed beneath that window, with window latches that a baby could open. The toddler fell three stories onto concrete and lived, severely brain injured, with his head cartoonishly flattened. His mom adored him. That, and lots of coldhearted defendants (the building owner, a nationwide property management company, and the window manufacturer) were the only impetus she needed.
We sent out the usual discovery to the property management company asking for other similar incidents on properties they managed, and the company lied. The humorous part: we caught them immediately because they failed to identify an incident on one of their properties that we had actually handled just a year or so prior.
Clearly there were more incidents, and Ann set off to find them. This was in the good old days when there were local newspapers across the country with easy online access. Initial searches for “window falls,” got hits for window treatments with tony fall colors, so she got literal and typed, “Baby falls from window,” and it was life altering. The hits whooshed in, and she quickly found our property management company quoted in an article about another baby falling out of one of their windows.
But Ann didn’t quit there, after she’d exhausted the phrase, “baby falls,” she typed, “one-year-old falls from window,” then, “two-year-old falls from window,” “toddler falls from window,” and so on. Each search brought up new stories, including incidents involving our defendant.
With so many OSIs, the property management company had failed to disclose, the various defendants asked to mediate. The day before the mediation, Peter told Ann, “Turn off your phone, close the door, and find one more.” And she did. She started with the property management company’s website, which provided a handy map of properties nationwide, and then began searching for news stories in each of those cities. The “miracle” came at the close of day, when Ann was one of the last people in the office: a story about a child in Florida who fell from an apartment window managed by the same company. We made the reveal the next
day at mediation, and the case settled for a huge sum. The baby was never going to be okay, but his mother would be able to take care of every possible need.
Headlines work for all kinds of cases. Recently Ann worked on a case involving an indoor climbing facility. She found a news story about a man who had clipped his climbing harness on wrong at an indoor climbing gym, fell, and was paralyzed — and it hit her: did her client do the same thing? She had taken her client’s story while he was still in the hospital and he was utterly credible, insisting he’d done everything right, explaining each movement in detail. After her “ah hah” moment, she dug out the evidence, laid it out on a table, and found that the EMT cuts were on the back of the harness. She was right! And further investigation revealed that lots of people put the harnesses on backwards — even the defense expert, who admitted he had during a videotaped deposition!
Ann struck again on a case involving a Pride Mobility scooter (the four-wheeled things that elderly and disabled people often need to get around town) that broke and rolled downhill at 30 miles per hour, hitting a car and throwing our client onto the asphalt. Our client, a stroke victim, scraped off several toes trying to stop the scooter, then broke 22 bones and suffered a head injury. We asked for other incidents and were given cherry picked nonsense cases. The judge took offense and ordered Pride to produce all cases where there was alleged “free-wheeling” or brake failure of a scooter. They produced more nonsense. Ann kept looking, in her “spare” time, for weeks and months. One afternoon, Ann went simple and googled the expression “v. Pride” and found a case in Federal Court, involving a disabled attorney whose Pride Mobility scooter had experienced “brake failure,” “free-wheeled” down a hill, and crashed — exactly what the judge had ordered produced. Worse, that case was filed just days after our initial requests for production — it had to be fresh in the minds of Pride’s shameful in-house legal team. Our judge was not pleased and the case quickly settled.
Love the Drudgery and the Minutiae.
There is never a short cut. Roll up your sleeves and plod through what is there. It can be absolute drudgery opening every single PDF produced but do that. The search function won’t find everything — eyes are needed. Peter once found the smoking gun document in the very last pile of photocopies produced by defendants during a horrendously boring, four-day document dump. Ann found a hand-written fax cover sheet that pinpointed time sensitive information that had been disputed. Defendants once produced thousands of pages of OSI documents highly redacted, but Ann’s scouring of each page found enough clues remained to find the incidents and several witnesses.
One case involved a broken leaf spring that bounced off the highway into our client’s car and face while she was driving 60 miles per hour. The defendant and dump truck driver denied that he had any knowledge of the broken spring despite a duty to inspect before each use. With our trial date approaching, Ann called the last of a long string of witnesses, one listed by first name only on the police report, ignored by all as likely unimportant. But the woman had a lot to say! Following the truck on her way to a medical appointment, she had watched with interest as the dump truck driver appeared to have issues and left the road to look between the back wheels of his dump truck just a short distance from where the accident occurred. She’d witnessed everything. We revealed this to the defendant and their attorney in a roadside chat a few blocks from the witness’s home. The defendant put his face in his hands, and the case settled.
We could go on and on. Examples abound. But the moral is simple. Act like James Washington, Jr. Act like George Washington Carver. Act like Peter and Ann. Love your cases, right up to trial or mediation, and they will give up their secrets to you.
By: Doreen Lundrigan & Paralegal Contributors
As we come to the end of 2024, I hope you all had a positive and productive year. Have a wonderful holiday season. And, find some time to relax with a good book!
Review by Anna Nibblett
My family jokes that if there is a book, TV show or movie that is about murder or unsolved mysteries, that I would like it. I have watched Will Trent on ABC for the last 3 seasons. I am hoping it’s renewed for season 4 soon. I recently found the book and loved it more. Apparently, there are 12 books in this series. Book #2 is currently on hold on my Libby App.
Will Trent works for the Georgia Bureau of Investigations. He lived his childhood in and out of foster homes, he has difficulty reading, uses a tape recorder to record his thoughts, always wears a 3-piece suit, has a little chihuahua dog named Betty, and sees things others do not. He is brought in on cases when they need a special eye.
Michael Ormewood is a detective, whose marriage and home life is falling apart. He is assigned to work the case involving the death of several Atlanta women. John Shelly, an ex-con, recently got out of prison. Trying to keep himself from going back to prison, he finds himself connected to the murders. As their stories intertwine, will they figure out who the killer is before the next woman dies?
All the TV show characters are in the book — but a few have a slightly different twist. While I love the TV show, the book was better. Kept me on the edge of my seat, and I didn’t want to put it down.
Review by Nicky Morris
If you’ve ever wondered what truly goes on when a jury deliberates, the "Deliberations" podcast is perfect for you! This improvised audio drama spans four seasons, taking listeners inside the jury room where jurors engage in discussions about a criminal case.
Each season is inspired by real high-profile trials, offering a firsthand look at the intricacies of jury deliberation. With six improvisers acting as jurors, the show showcases their passionate debates, negotiations, and varying interpretations of the evidence. I found it to be a unique and fascinating exploration of the complexities within the legal system and human behavior. It was both entertaining and, at times, frustrating to hear how the jurors’ personal biases and perspectives influenced the verdicts in each case.
For added enjoyment, you can also join in the discussion on Facebook as you explore each season! For more information, you can visit linktr.ee/pressthepodcast.
by Eliza Griswold
Review by Tamara Brininger
In Amity and Prosperity, you will learn about the trials and hardships of a single mother and her two children who were living near a fracking site. This mother is a nurse in a small town in Amity, Pennsylvania when big corporate America infiltrate their town convincing many that the town will be central to the next energy boom. The residents of the town become divided as some become ill, others prosper, and litigation ensues. The story also revolves around a pair of lawyers who are married and running their own small firm. This single case takes over their personal and business lives. The facts unveiled during the litigation, buried in the mountains of data and documentation, become more and more frustrating for all those involved. I only recommend this novel for those interested in noteworthy legal battles. This is not a book to escape the stress of our careers.
Review by Emily Brown
This book is a great read (or audiobook listen) for anyone who is looking for a bit of suspense, scientific exploration in the middle of the ocean, an immersive setting and . . . deadly, killer mermaids.
Into the Drowning Deep by Mira Grant is the story of a collection of scientists and filmmakers who are selected by a film production company to voyage to the Mariana Trench — the location of the deepest oceanic trench on Earth in the western Pacific Ocean. The core mission is to uncover the truth behind the mysterious and controversial disappearance of the same company’s original ship to the Trench a few years back. All hands from the original voyage were lost at sea and the only thing left behind was the raw video footage, which contained images of destruction and creatures from the sea that most of the world has written off as a hoax of epic, special effects proportions. Many of the scientists and marine biologists seek to validate their own life’s work and see this opportunity as a once-in-a-lifetime research trip funded for by a company that believes in fairy tales. However, this crew soon encounters an unimaginable truth that tests the survival instincts of everyone on board.
If you’re looking for a page turner with aspects of science fiction, horror, and survivalist thriller, I would highly recommend giving this book a try!
Reviews by Julie Houston
As an extra little bonus — here are my top reads of 2024. It was a good year of books!
If you didn’t hear about this book, I’d be surprised. It lives up to its hype — historical fiction about the Vietnam war written about a young woman who joins the military as a nurse and is stationed in Vietnam.
This is a beach read, an anthology written by several very popular well-known authors in tribute to Dorothea Benton Frank who passed away rather unexpectedly.
This book is set in Chicago and is the story of four sisters from a Catholic family. These sisters are very different, and the book follows their relationships over many decades. I thought this book was beautifully written and certainly worth reading.
Crow Mary is a young Crow Indian woman who lives a quiet life until the love of her life is killed, and she is married to a white man in exchange for him providing guns to the tribe to fight off the US Army. Set in 1870s. Crow Mary is a very strong woman and smart woman.
This book is set in 1950’s Washington DC, a story about a group of women who live in a boarding house, and come together once a week for meals they call, The Briar Club. It includes political drama of the time. I understand that all the women in this novel were based on real people. It’s a fast and fantastic read.
This book really surprised me. Set in Maine in 1789, a story about Martha Ballard, a midwife. Talk about a strong female character. This includes her son being accused of a terrible crime. I was surprised how much I liked this book.
Happy reading and hope you enjoy some of these books.
TROY FLEMING started his career in 1986 as an investigator for a North Carolina personal injury law firm. His responsibilities included overseeing the investigation department as well as meeting with new clients, interviewing witnesses, conducting background investigations, performing criminal record checks as well as product research in preparation for litigation and trials. Troy was born in Asheville, NC, but grew up in Greenville, NC, where he attended East Carolina University and studied Business Administration and Marketing. He started his legal career after his third year at ECU where he discovered his passion for legal investigation. Troy is an active member of the National Association of Legal Investigators where he has served as a regional director and secretary. He is also a member of the Inner Circle of Investigators. In 2016, Troy was named AIEG’s Paralegal of the Year.
BRANDI GILLAM started her paralegal career in 2019 in a boutique law firm in Marietta, GA specializing in personal injury. In 2021 Brandi completed her paralegal studies program at Kennesaw State University. Brandi began working in Product Liability in July of 2023 at The Cooper Law Firm with Doreen Lundrigan as a mentor. In 2023 is also when she joined AEIG. Outside of working at the Cooper Firm, Brandi has a passion for football and loves cheering on her home team, the Atlanta Falcons.
CASEY GORE is a paralegal with Parker Law Group in Hampton, SC. She has been there for eight years with a caseload of primarily product liability cases. She attended the College of Charleston and likes to say she accidentally found herself in the legal field, but she is so happy that she ended up on this career path and believes she has found her true calling in law. She has two amazing sons who are two and four, and she enjoys watching them grow, which is happening way too quickly, and spending time with them and her husband.
MICHELLE HOCKERS is a shareholder at Murphy & Prachthauser, S.C. Ms. Hockers practices exclusively personal injury law representing injured persons in cases involving product defects, motor vehicle accidents, and unsafe premises. Ms. Hockers has litigated numerous serious injury cases caused by defective products, automobile accidents, and other forms of negligent conduct in Wisconsin. She has also been admitted to practice in courts across the country including, California and Minnesota, on auto product cases.
ANN O’NEIL is a paralegal at Schroeter Goldmark & Bender in Seattle, with 24 years of experience working on complex product liability and negligence cases. Her brother Peter O’Neil, once a paralegal, is a retired attorney, former AIEG member and author of the book, “My So-Called Disorder: Autism, Exploding Trucks, and the Big Daddy of Rock and Roll.”
JOSH WOOTEN, Lead Investigator at Cory Watson Attorneys in Birmingham, AL, specializes in crash investigations, personal injury, class action, and product liability cases. A former police officer with roles including Detective and Traffic Homicide Investigator, he brings a unique law enforcement and legal perspective. Josh is a Certified Legal Investigator (CLI) with a Master of Justice Administration from Faulkner University and a Bachelor of Science in Justice Studies from Athens State University. His results-driven approach and dedication to excellence support Cory Watson Attorneys in managing complex cases throughout the southeastern United States.