Litigating the Cutting-Edge CaseAuthor(s): Edward M. MansfieldSource: Litigation, Vol. 25, No. 4, EXPERTS · E-MAIL CUTTING-EDGE CASES (Summer 1999),pp. 13-16, 61Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760081 .

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litigating the Cutting-Edge Case

by Edward M. Mansfield You walk into the office on a clear Monday morning. As you sit down, one of your corporate partners calls with what he

says is urgent business. "I just heard from Iowa Metals.

Apparently, they've been sued because a child was seriously injured when some playground equipment collapsed."

"But Iowa Metals doesn't make playground equipment," you respond.

"You're right," your partner says. "But the equipment manufacturer is bankrupt. Iowa Metals supplied unfinished steel bars to the manufacturer. Anyway, can you do a confer? ence call at ten?"

You agree, but you wonder what the concern is all about. "This case won't fly," you think to yourself. Your partner and his corporate client worry too much.

A few minutes before your scheduled conference call, you learn that the plaintiff's lawyers are Romulus and Remus

Wolf, contingent-fee lawyers renowned for their aggressive? ness and zeal but not always for good case selection. You stride down to your partner's office having mentally devel?

oped the first four grounds for your motion to dismiss. Full of the bravado that the client and your corporate part?

ner expect, you announce that "This is a crazy case. You did

nothing wrong. I'll prepare a motion to dismiss. We'll argue the bulk supplier rule, the sophisticated user rule, the raw

material supplier doctrine, and the contract specifications defense." The call ends quickly.

Reassured, the client and your partner turn the case over to

you, return to their work, and wait for the happy result. Days later, you realize that you never did what you normally

would do on a first call from a client. You made no effort to find out what your client knew about the salient facts or what it had done that could have led to?or might have pre? vented?the accident. You did not discuss a budget, the dis?

covery process, or alternative strategies. And those omis? sions may come back to haunt you.

Recent years have seen a growth spurt in cutting-edge cases. Stretching the traditional concepts of injured party and

responsible party, creative attorneys have filed suits naming,

Edward M. Mansfield is a partner in the Des Moines, Iowa, law firm of Belin Lamson McCormick Zumbach Flynn.

among others, those at least one step removed from the usual

plaintiff or defendant. What does "one step removed" mean? Pick up a newspaper

and you will find some examples. The cases brought by state

attorneys general to recover Medicaid payments from tobacco

companies are a good example of cutting-edge plaintiff cases. The plaintiffs in those cases are not the traditional, historic

plaintiffs?the cigarette smokers themselves. Instead, states seek to recover medical expenses they paid on behalf of smok? ers. Similarly, cities have recently brought claims against gun manufacturers for damages allegedly caused to the municipal? ities' coffers. Reportedly, similar lawsuits are being considered

against other industries as well. The claims against companies that supplied raw silicone

or polyurethane foam to breast implant manufacturers are an

example of a creative defendant case. There, the suppliers did not design, make, or sell any allegedly defective breast

implants. Rather, they were alleged to have known that their raw materials would cause harm if used in other companies' breast implants. Likewise, in the TMJ implant litigation, many recipients of these implants sued DuPont for selling Teflon? raw materials to an implant manufacturer. When the

implants reportedly failed, the recipients blamed DuPont for

selling raw materials that the company supposedly knew were slated for an allegedly unsuitable purpose.

In most instances, plaintiffs' attorneys do not file these cases

thoughtlessly. Their complaints are usually well-researched and begin with a long chronology of allegedly improper con? duct by each defendant. This is followed by various asserted causes of action that weave together general and specific claims. Typically, there will be a broad claim for negligence (the defendant should have known that bad things would hap? pen and should have prevented them) followed by specific causes of action based on hitherto obscure statutes and Restate? ment sections (such as Restatement (Second) of Torts ? 324A).

Most basically, these cases are about fault and risk alloca? tion. Fault usually breaks down into two components. First, knowledge?did the defendant know about the planned use and the potential harm? Second, causation?did the defen? dant cause the harm?

These cases follow the premise that when harm is present,

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the plaintiff should win despite traditional limiting doctrines like duty, privity, and proximate cause. If the defendant sold

something that caused injury, at least one employee of the defendant must have or should have known about the risk of harm. Therefore, the reasoning goes, it is both fair and

legally sound to make the defendant pay. In our system, plaintiffs enjoy certain advantages in prov?

ing knowledge and causation. For example, at least for pur? poses of getting past a summary judgment motion, docu? ments stuffed into employees' files become part of the

corporation's "knowledge." Especially if those documents address how a purchaser plans to use a suppliers' raw mate? rials and question whether those materials will hold up under that use, a skillful plaintiffs' attorney can combine such

pieces of paper and argue that the assembled paper trail

proves the corporation's knowledge of a specific danger. Defense lawyers often consider this tactic unfair. The

memos may have been prepared years apart by different peo? ple. The authors may not have understood completely what

they were writing down. The excerpts and exhibits may be taken tortuously out of context. But the law generally allows this approach.

Proving causation may also be a relatively easy task for

plaintiffs. In fact, for practical purposes, the burden of proof is often flipped on this issue. For a defendant to establish that its action or product did not cause the plaintiff's injuries, it

must often demonstrate that another product or event did. But cutting-edge cases tend to involve losses and injuries that are long-term, not sudden and violent. The modern business world and the human body are so complex that it may be dif? ficult to develop a single, convincing alternative explanation for the plaintiff's injuries or losses.

All this is not to say that the plaintiffs in cutting-edge cases have it easy; in fact, they can also face an uphill battle. Con?

cepts like duty, privity, and proximate cause exist for a reason. The judge's reaction to the Wolfs' case may mirror your ini? tial skepticism. And the jury may have some initial reluctance to place the blame on an entity several steps removed.

From the perspective of both sides, it is thus worth consid?

ering special strategies for dealing with cutting-edge cases. Of course, to some extent cutting-edge cases defy general?

ization. By definition, they are unique. But some of the prin? ciples for prosecuting and defending these cases transcend

specific areas of law. A number of commonsense strategies can help tip the balance between failure and success.

Here is what it looks like from the plaintiff's perspective. Recognizing the novelty of what she is trying to accomplish, counsel's litigation strategy must be geared in the first instance toward avoiding dismissal and summary judgment. This turns not only on the controlling legal principles, but also on aggressive fact development. Through informal

investigation and formal discovery, plaintiff's counsel should try to accomplish three things.

First, over-prove defendant's knowledge. Regardless of what the precedents may say, judges will be reluctant to take a case away from the jury if the defendant actually knew that its product or conduct might result in injury. In other words, if you represent the plaintiff, prove that you have a great case, not just a good one. If the applicable legal standard is "knew or should have known," focus your efforts on the "knew" part. Intentional or quasi-intentional torts are always more appeal? ing, and more compelling, than mere negligence claims.

For example, consider Suchomajcz v. Hummel Chem. Co., 524 F.2d 19 (3rd Cir. 1975), a well-known case in which the Third Circuit reversed the entry of summary judgment in favor of a chemical supplier. The facts in that case were dreadful. A fireworks kit exploded in a park, killing two chil? dren and injuring four. The defendant had not made the kit; it had only supplied a harmless and defect-free chemical to the kit manufacturer. But the defendant purportedly knew that its customer?the fireworks manufacturer?was using its chemical to make and sell fireworks kits illegally. Based on these facts, the Third Circuit held that the case should have gone to trial.

Suchomajcz cuts against the grain of countless decisions that have exonerated suppliers of nondefective raw materi? als. See generally Restatement (Third) Products Liability ? 5, comment b. But it illustrates the important point that a

high degree of knowledge and culpability may trump a seem?

ingly valid legal defense. For summary judgment purposes, plaintiff's counsel in a

cutting-edge case may want to act as if the movant's and oppo? nent's burdens are reversed. In a run-of-the-mill lawsuit, a

plaintiff opposing summary judgment is concerned with pre? senting just enough evidence to create an issue of fact on each element of his claim. In a cutting-edge case, on the other hand, the plaintiff should try to eliminate any doubt that the defendant knew harm would result. Accomplishing this means preparing for your opponent's summary judgment motion long before the motion papers are served. Indeed, it requires a very aggressive approach toward discovery, including taking the depositions of

employees and former employees who might admit that they knew what the new materials would be used for?or, better, that the defendant had a bad or risky idea.

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Second, plaintiff's counsel should try to show that the

plaintiff and the defendant belong in litigation with each other?in other words, that the correct parties are litigating. In the Iowa Metals hypothetical, the Wolfs need to convince the court that Iowa Metals is more culpable than the play? ground equipment manufacturer, not just that it has been sued because the playground manufacturer is bankrupt.

This may mean proving that the cutting-edge party, whether plaintiff or defendant, is more than he, she, or it

appears to be. For example, did the defendant raw material

supplier do more than simply sell the raw material? Did it

actually help design the finished product? Or did it know what the user did not: that the raw material was destined to fail when used in the contemplated manner?

Technical Assistance Like other businesses, most raw material suppliers try to

help their customers. Perhaps the defendant tested its raw mate? rial for the finished product or provided advice to the finished

product manufacturer. If counsel for plaintiff learns about such

assistance, she will be well equipped to defeat her opponent's summary judgment motion and ultimately to succeed at trial.

A venerable Fifth Circuit case, E.I. du Pont de Nemours & Co. v. McCain, 414 F.2d 369 (5th Cir. 1969), provides a good example of the level of technical assistance that can give rise to liability. There, the defendant chemical company actually told an inexperienced finished product manufacturer what

ingredients he should use and how those ingredients should be combined. This evidence was found to be sufficient to take the case outside normal rules of liability and resulted in a win for the plaintiff.

Demonstrating the other side's hypocrisy wins cases. Because marketing departments and legal departments often

operate at cross-purposes, discovery may show that the defendant promoted the very activity that is at the heart of the lawsuit. A judge or jury may find it a bit rich for a defendant to promote its raw material for a particular end-use, while

disavowing responsibility for injuries resulting from that use. Indeed, a recent California case found that a resin sup? plier for polybutylene pipes could be held liable because of its "integral role" in the "producing and marketing enter?

prise" of a defective product. Bay Summit Community Assn. v. Shell Oil Co., 59 Cal. Rptr. 2d 322 (Ct. App. 1996).

Third, and most importantly, plaintiff's counsel should

develop a coherent and convincing theory of how the defen? dant could have prevented plaintiff's losses or injuries. Hot documents and deposition sound bites will not help the

plaintiff unless her attorney has a coherent theory of what the defendant could have done differently.

In this area, perhaps more than any other, cutting-edge cases run into the greatest difficulty. For example, the underlying tort

theory against a raw material supplier like Iowa Metals usually includes a claim of "failure to warn." Plaintiff argues that the raw material supplier should have warned the manufacturer, an

intermediary, or the end-user that the raw material was unsuit? able for the finished product. But what should the warning have said, and to whom should it have been given?

If the Wolfs want to say that Iowa Metals should have warned the children who might use the playground equipment or the parents of those children, then they need to show how Iowa Metals could have identified and located them or other? wise ensured that a warning would reach them. On the other

hand, if they argue that only the playground equipment manu? facturer or an intermediate supplier had to be warned, then they must demonstrate how such a warning would have made a dif? ference. Would the playground equipment manufacturer have modified its plans if properly warned? And if the Wolfs want to

argue that Iowa Metals should have contracted with the play? ground equipment manufacturer to warn end users?a sugges? tion made in some appellate opinions?they still need to show how Iowa Metals would have known better than the finished

product manufacturer exactly what warning to provide. One deposition and trial question that defense attorneys

often ask manufacturers when defending raw material sup? plier cases is whether the manufacturer has ever received a raw material supplier warning. The answer invariably is no,

perhaps because of the practical problems with providing such warnings. See generally, In re Silicone Gel Breast

Implants Products Liability Litigation, 887 F. Supp. 1463

(N.D. Ala. 1995) (Pointer, J.) (granting summary judgment to Scotfoam, a supplier of polyurethane foam used in breast

implants, and discussing many of the practical difficulties with raw material supplier warnings).

On the other hand, to the extent the raw material supplier did furnish a warning that failed to discuss the pertinent risk, the plaintiff can argue that the defendant could have issued an effective warning but did not do so. For example, plain? tiffs' attorneys in raw material cases sometimes rely on so called "MSDS" sheets. Although such sheets are intended to advise only about safe handling of the material, plaintiffs will argue that they are examples of incomplete or inade?

quate warnings. From this, plaintiff's counsel will argue that die raw material supplier could have issued the proper warn?

ing had it chosen to do so.

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Problems with explaining how the defendant could have

prevented the plaintiff's losses or injuries may betray a

deeper flaw in the case. In cutting-edge cases, what the plain? tiff has pled may not be what he really is complaining about. For example, although the complaint may contain an impres? sive array of causes of action, plaintiff's bottom line may be that the defendant should not have sold the material at all. But if there is no sensible theory of how the injuries or losses could have been avoided, the case should not have been

brought in the first place. Things look different from the defendant's perspective.

Defending the cutting-edge case means rethinking classic defense strategies. Usually, lawyers try to defend tort cases

by?among other strategies?demonstrating that the plain? tiff is overreaching and shifting blame to other parties. Because of their expense and uncertainty, however, novel tort cases tend to be brought only when the plaintiff's injuries are relatively serious and when other parties are for some reason unavailable. In these circumstances, the tradi? tional approaches may backfire.

In any event, restraint is often more fruitful than shooting from the hip. Even if you are convinced there is no legitimate ground for plaintiff to have sued Iowa Metals, it may be unwise to file an early motion on cold legalistic grounds. Courts will be troubled by a request for summary judgment that is based upon technical arguments made on a bare record without any information about what your client knew or did.

Rather than running to the courthouse, develop a pre motion agenda that looks something like this:

1. Disprove your client's "knowledge"; 2. Establish distance; 3. Prove utility; 4. Search for analogies in the case law, and argue that

the plaintiff's theory is not merely unprecedented but actually contrary to established law.

Just as the plaintiff should try to over-prove knowledge, the defendant must strive to disprove it. Find out if Iowa Metals knew how the steel bars were going to be used or if it was famil? iar with the reputation and skill of its commercial customer. A court will feel more comfortable dismissing a case if it believes that the defendant did not and could not foresee the harm.

For example, in the TMJ implants litigation, our client, DuPont, consistently presented proof that it had no reason to

know that the TMJ implants made with its materials by another company would be dangerous. On this ground, and without reaching other legal defenses that we had raised, several courts granted or affirmed summary judgment in our favor. In fact, the Ninth Circuit first issued a relatively nar? row ruling for DuPont based on lack of knowledge, Anguiano v. E.I. du Pont de Nemours & Co., 44 F.3d 806 (9th Cir. 1995), and later in the litigation wrote a much broader

opinion adopting DuPont's legal position. Kealoha v. E.I. du Pont de Nemours & Co., 82 F.3d 894 (9th Cir. 1996).

To bolster the lack-of-knowledge defense, counsel may want to take relatively friendly discovery from the various intermediaries between the plaintiff and the defendant?for

example, the manufacturer of the finished product in a raw material supplier case. A deposition showing that some bet?

ter-placed intermediary was aware of the risk for which the defendant is being sued can be immensely valuable. And

although you may want to argue at trial that the playground equipment did not work very well, that does not mean that

you must do so in discovery. When the intermediary is a business or a government

agency that signed a disclaimer, trumpet it. For example, raw materials are sometimes sold to the finished product manufac? turer with written disclaimers. Such boilerplate disclaimers

may not persuade judges, but jurors may be more willing to honor them when the signer was a substantial entity.

Distance Make the most of the distance between your client and the

injured party. Many people will share your intuitive reaction when you learned about the Iowa Metals case: "They can't sue Iowa Metals; the relationship is too remote." It is defense counsel's job to confirm and strengthen this first impression of distance.

In a raw material supplier case, for example, the defendant should locate and obtain testimony from fact witnesses who can testify to the various processing steps taken by the finished

product manufacturer. Most manufacturers maintain written

production manuals that can be used as exhibits. If the finished

product is patented, there will be a patent application as well.

Cutting-edge cases often call for visual aids. Without

appearing too cluttered, these charts should name all the enti? ties and intermediaries that have not been sued. Make the list

comprehensive, including even government agencies. In

fact, you may want to develop a standard chart and bring it to every hearing.

Prove the utility of your client's product. In the end, cut?

ting-edge cases are about social harm. The plaintiffs bring? ing this kind of case are not following standard operating procedures?they are asking the court to take an unusual stand. Defense counsel must engage their opponents in a pol? icy argument about the value of the product at issue and the

impact of such lawsuits on that product; otherwise, defense counsel will be unable to wrestle for the moral high ground. Ultimately, the court will decide whether allowing the case to proceed or terminating it results in greater social utility. The defendant must join this debate.

Applying this logic to the raw material supplier case, defense counsel should show that other beneficial and even

life-saving products are made from the same raw material.

(Please turn to page 61)

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928 (1963). This view of the law, as an immutable force untouched by the out? side forces of personal bias, politics, economics, or regional differences, is what we all were taught in law school. To a large extent, it is also the view of the lay public.

But those of us who work within the

legal system on a daily basis are

painfully aware that the law, like any institution, cannot help but be influ? enced by external factors. The mere existence of forum shopping belies the

myth of uniformity. No rational litigant would expend scarce resources on forum shopping activities if differences

among the courts did not in fact exist. And while courts and commentators differ as to the benefits of forum shop? ping, there is no question that different courts actually do hand down different outcomes to similarly situated litigants.

As long as that reality remains, good lawyers will continue to attempt to get their clients into the most favorable courts. Indeed, some would argue that

part of a lawyer's job is to manipulate the legal system within the rules to the

advantage of her client. "Selecting a forum is but one step in zealous client

representation, and failure to consider what forum would be most favorable could indeed be perceived as a lapse of

professional judgment. When Congress has provided for multiple venue

choices, forum shopping is inevitable and anticipated." Toni M. Fine, "Multi?

ple Petitions for Review of Agency Rul?

ings: A Call for Further Reform," 31 New Eng. L. Rev. 43,46 n.ll (1996). C

Cutting

Edge Case

(Continued from page 16) Where can steel bars made by Iowa Metals be found today? How are they used? What do they accomplish for

society? Proving that a host of products is made from the same raw material not

only demonstrates the value of the material, but also shows how impossi? ble it would be for the supplier to mon? itor every end-use.

Dollars-and-cents arguments can be

persuasive. For example, raw materials

usually represent only a small fraction of the cost of the finished product. In

part, that is because the raw material

supplier has not charged its customer for the duties that the plaintiff wants to

impose on it through the pending law? suit. Therefore, at least at the summary judgment stage, defense counsel should

emphasize the minimal revenue that the raw material supplier received from sales to the finished product manufac? turer, and the difference in cost between the finished product and what was paid for the raw materials. The factfinder will

get the message that the finished product manufacturer?not the raw material

supplier?factored the risk of legal responsibility into the price and that

holding the supplier responsible is there? fore both unfair and socially unwise.

Finally, defense counsel in cutting edge cases should try to find creative

legal analogies and use them to argue that established caselaw compels dis?

missal of the plaintiff's case. In other words, defense counsel should be cre? ative but should eschew credit for her

creativity. That may run contrary to

every fiber in a litigator's being, but in

cutting-edge cases it can be the most effective strategy.

By their nature, cutting-edge cases are offbeat and outside the law books. There

may be no authority in your jurisdiction on point. But it is usually not to the defendant's advantage to argue that the

plaintiff's claim is unprecedented?that will give the court freedom to do what? ever it wants. And if the plaintiff is badly injured, what the court wants may not be in the best interest of your client.

Instead, defense counsel should look for thoughtful, imaginative analogies? and then argue that those analogies pro? vide a controlling rule of law that is

binding on the court. For example, many state supreme courts never have decided a products liability case brought against a raw material supplier. But they may have issued decisions finding no duty in a variety of contexts for public policy reasons. Or they may have rejected expansive definitions of "product" in other product liability cases. Use those

precedents to argue that the court must rule in your favor here.

In the end, cutting-edge cases are

unconventional, and in some ways they do not respond well to conven? tional litigation techniques. From both the plaintiff's and the defendant's per

spective, patience in conducting for? mal discovery and informal investiga? tion may work better than the rapid fil?

ing of legal motions. Iowa Metals may be better served if its attorney resists a

knee-jerk reaction, and instead fol? lows a more cautious, contemplative approach to the novel claims against it, an approach that focuses both on the specific facts of the case and their

general policy implications. 10

Trial

Notebook

(Continued from page 54) sends the message that the words you are

hearing really came from someone else.

Why? If you write out your presentation, it

will never sound quite like you, no mat? ter how many times you rehearse it, for the simple reason that you don't write the way you speak?the rules are all different.

So work from an outline, not a script. But even if nothing is memorized

and no one is rehearsed, well-prepared trials often lack spontaneity except for occasional moments during cross examination.

I know, you don't want any sur?

prises. But here is a way to create some

spontaneity on direct examination without any real risk.

Almost any good direct examination steals some of the cross-examiner's thunder. You ask the question yourself, your way, so the witness can give a

nice, sanitized answer, right? Which is just what creates a ho-hum

response by the judge and jury. So instead of sanitizing the ques?

tion, why don't you challenge your own witness (or even your own client) with it: "How in the world can you jus? tify spending $175,000 of the corpora? tion's money on that kind of project,

Ms. Reynolds?" Tension creates interest. And the

tone in your voice says that something is happening. Everyone?judge, jury, and court reporter?perks ups and pays attention.

Which is just what you want.

?Angus 10

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