1. Building the Defense of a Product: Taking a Technical Approach
Mark Solheim & Tony Novak
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2. Take a Technical Approach
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3. Take a Technical Approach
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4. Key Questions What is the Product at Issue?
Does your client manufacture the Product?
Product ID
Components?
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5. Key Questions Who is your client’s customer? Stream of Commerce?
Notice to other Parties?
Where is the Product now?
Age of Product?
Condition of Product?
Preservation of Product?
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6. Get Technical
Once preliminary information is known, time to begin building your defense:
History of Product
Prior Claims
Design Issues
Specifications
Testing
Supplier Considerations
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7. Chinese Manufacturers
China is a party to the Hague Convention for purposes of service of judicial matter
Service is handled through the Chinese Central Authority
What does that mean for your case?
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8. Chinese Manufacturers
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9. Chinese Manufacturers
Contest jurisdiction
Discovery on level and extent of contacts
Why does this matter?
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10. Non-Manufacturer Statutes
PRODUCT LIABILITY; LIMIT ON LIABILITY OF NONMANUFACTURERS.
§ Subdivision 1.Product liability; requirements.
In any product liability action based in whole or in part on strict liability in tort commenced or maintained against a defendant other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage. The commencement of a product liability action based in whole or part on strict liability in tort against a certifying defendant shall toll the applicable statute of limitation relative to the defendant for purposes of asserting a strict liability in tort cause of action.
§ Subd. 2.Certifying defendant; dismissal of strict liability.
Once the plaintiff has filed a complaint against a manufacturer and the manufacturer has or is required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant, provided the certifying defendant is not within the categories set forth in subdivision 3. Due diligence shall be exercised by the certifying defendant in providing the plaintiff with the correct identity of the manufacturer and due diligence shall be exercised by the plaintiff in filing a law suit and obtaining jurisdiction over the manufacturer.
The plaintiff may at any time subsequent to dismissal move to vacate the order of dismissal and reinstate the certifying defendant, provided plaintiff can show one of the following:
(1) that the applicable statute of limitation bars the assertion of a strict liability in tort cause of action against the manufacturer of the product allegedly causing the injury, death or damage;
(2) that the identity of the manufacturer given to the plaintiff by the certifying defendant was incorrect. Once the correct identity of the manufacturer has been given by the certifying defendant the court shall again dismiss the certifying defendant;
(3) that the manufacturer no longer exists, cannot be subject to the jurisdiction of the courts of this state, or, despite due diligence, the manufacturer is not amenable to service of process;
(4) that the manufacturer is unable to satisfy any judgment as determined by the court; or
(5) that the court determines that the manufacturer would be unable to satisfy a reasonable settlement or other agreement with plaintiff.
§ Subd. 3.Dismissal order prohibited.
A court shall not enter a dismissal order relative to any certifying defendant even though full compliance with subdivision 1 has been made where the plaintiff can show one of the following:
(1) that the defendant has exercised some significant control over the design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the injury, death or damage;
(2) that the defendant had actual knowledge of the defect in the product which caused the injury, death or damage; or
(3) that the defendant created the defect in the product which caused the injury, death or damage.
§ Subd. 4.Limiting constructing laws.
Nothing contained in subdivisions 1 to 3 shall be construed to create a cause of action in strict liability in tort or based on other legal theory, or to affect the right of any person to seek and obtain indemnity or contribution.
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11. Non-Manufacturer Statutes
Don’t assume anything
Make Plaintiff’s counsel do their job
May be able to leverage Client’s relationship with manufacturer
Will need the manufacturer to defend product
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12. Experts What type of expert do you need?
Might not be that simple
Early involvement on several fronts:
Inspection / Examination
Testing
But also:
Identifying applicable regulations
Identifying industry standards
Identifying litigation trends
Identifying key documents and background needed
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13. Experts – Laser Scan
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14. Client Considerations
Pride in manufacturing
History of product performance
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15. Client Considerations
Expert expense early?
Staffing
Road show
Personalities make a difference
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16. Client Considerations – 30(b)6
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17. Client Considerations – 30(b)6
Know
Product
Process
Documents
Advance work
Push back on overbroad topics
Prep deponent for theories in the case
And prep for theories not in the case (yet)
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18. Client Considerations
National manufacturer?
National claims history?
Consistency in discovery
Know the prior claims and get the documents/responses/depositions
Prepare deponent on prior testimony and prior responses
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19. Client Considerations
Consistency in handling cases
National or Regional counsel
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20. Shifting Theories of Liability
Product is Identified
Product is Examined
Claims History is Clean
Product is (possibly) Tested
Evidence suggests No Defect or Misuse (or both)
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21. Shifting Theories of Liability
Not done yet
Anticipate,
don’t react
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22. It Must Be The Warning
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23. It Must Be The Warning
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24. It Must Be The Warning
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25. It Must Be The Warning
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26. It Must Be The Warning
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27. Misuse
Duty to warn of foreseeable misuse
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29. Larson · King, LLP

30. Thank you.
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