The Appellate Division, First Department recently granted leave to appeal to the New York Court of Appeals in Adams v. Genie Indus. Inc. The appeal concerns a product-liability matter where the plaintiff allegedly injured himself on a compact personnel person-lift.
The trial court included a charge in the jury instructions that indicated that a manufacturer has a post-sale duty to retrofit or recall a product where it can be made safer using subsequently developed technology.
Whether the New York Court of Appeals addresses this important question is unclear. There are several other issues that clutter this novel issue. The Court will likely decide the appeal in fall 2009. NYCL will keep you apprised of the oral arguments and decision.
Every time I read such a story about “product recall” I must rhetorically ask why manufacturers continually place themselves in the massively expensive and self-destructive retrofit process when the tools exist for them to make the product intrinsically safe and reliable. Every day I find myself consulting in products liability law suits that could have been totally avoided.
The root cause of defects leading to injury and/or death is often the underlying management, operational and quality processes employed by the manufacturer, distributor or service provider. While attorneys spend (literally) years and thousands of dollars sifting through forensic evidence, discovery and testimony of opposing experts, investigation into the standard of care exercised by the manufacturer is often overlooked.
Uncovering substandard management, manufacturing and quality practices can drive cases into more rapid and conclusive settlements. Through discovery and depositions, compelling evidence can be uncovered that demonstrates how business leaders are often oblivious to the potential for liability built into their usual and customary business practices. Since the jury is shown compelling objective evidence of how the manufacturer was not only responsible for producing the subject defect, but how their company carelessly and recklessly condoned processes that were destined to produce defects, awards are often elevated to punitive damages.
Using proven tools grounded in quality and organizational management system analysis, it can be determined in the discovery stage that the manufacturer’s practices and standard of care were either beyond reproach or the cause-in-fact of the subject incident and consequent damages. The tools for this non-traditional approach to discovery and trial strategy are found in the disciplines of quality management, business process management and organizational behavior, not in the law library.
Tom Taormina
Certified Manager in Quality and Organizational Excellence
Certified Management Consultant
Forensic Business Pathologist®
[email protected]
http://taorminagroup.com
Posted by: Tom Taormina, CMC, CMQ/OE | January 05, 2009 at 11:51 AM