The Perfect Storm: Keys to a Successful Products Liability Defense

Snow in Dallas on Thanksgiving day? The last thing anyone expected for the Dolphins - Cowboys game that afternoon. We had been dealing with it the whole game and as it continued to build up we desperately tried to clear the sidelines and goal lines, with no real snow removal equipment available. After all, no one expected snow! No one, players or officials, even had shoes with cleats - we had expected a dry astro-turf surface - so we were slipping and sliding all game long.

As the snow continued to fall, and with just seconds left in the game, the Dolphins lined up on the Cowboys 24 yard line to attempt the winning field goal. As the Referee on the game, it was my responsibility to watch the kicker after the kick, so I never saw the kick blocked or the desperate scramble for the loose ball afterwards, and I never saw all but one of the players back away to let it roll to a stop. And I surely didn't see Leon Lett slip on the slick surface as he tried to recover the ball but instead knocked it even closer to the goal line. When we dug to the bottom of the pile, there was a Dolphins' player wrapped around the ball in the end zone. Through a very obscure rule, (that was changed the following year), the ball went back to Miami for a re-kick, resulting in the winning field goal.

Yes, that Thanksgiving day game in Dallas was indeed a "A Perfect Storm" of circumstances to create one of the most bizarre plays in my 18 years in the NFL. Snow in Dallas, the slick surface and a lack of cleats, a one point game, a blocked field goal, and a hustling player who was in the wrong place at the wrong time. None of the seven officials on the field, including me, knew everything that had happened. We had all been doing our job on the play, which meant we were each watching a different piece of the action. It took several officials piecing together their particular facts in order for me to understand what had happened and then to enforce the rule in this most unusual situation. Our joint effort, though, determined the winner of that game.

Every official did his job on that play, and it was only with the knowledge and observations of all seven that we succeeded. So it is with any claim. First, it takes "A Perfect Storm" to create a claim. When one thinks about all of the medical devices in use around the world today, it is truly only in the most unusual of circumstances that all the facts line up just so, giving rise to a legal claim. It takes the perfect storm of events all coming together to create the claim, and then it takes a perfect blend of players - clients, insurers, experts, and lawyers - to succeed in the ensuing lawsuit.

As with refereeing an NFL game, being the lead attorney on a lawsuit requires everyone doing his or her job. If everyone does his job on Sunday afternoon, the game is played fairly, and the right team wins. Likewise, if everyone - clients, insurers, experts, and lawyers - do their job, the right party wins that lawsuit.

Product Manufacturer:

Success in the defense begins and ends with the manufacturer, or client. When defending a claim, I must rely on my client to give me the facts behind the product. Complete cooperation is a must. That starts with providing me with all there is about the particular device involved, including design details, studies, test results, modification details, advertising materials, instructions, and any claims that have arisen from that particular product. It also includes the "bad news", not just the "good news". On the football field, if the ruling official does not throw his flag for pass interference on a close play in the end zone because he was screened out and couldn't see the action, he must tell me that in order to give me the opportunity to check with other officials who might have seen the action. If I never get that "bad news" that he was screened out, I never have the opportunity to fix a potential mistake. So it is with bad results or known problems with a device. The worst thing is for the attorney to find out the problems with a healthcare product for the first time in depositions of the opposing expert. Knowing the problems ahead of time gives the attorney a chance to prepare to deal with the upcoming storm.

Insurer:

As with the manufacturer, everything known by the insurer must be provided to the attorney. Full knowledge gives him/her an opportunity to prepare, and when appropriate, it gives an opportunity to settle the claim before the plaintiff's attorney learns the weaknesses of our case. The insurer is much like my boss in the NFL - they hire me based on ability. They then provide me with the knowledge and support to do my job. As part of the process, both bosses allow me to do my job, trusting my judgment (but always willing to provide input), and recognizing that they hired me for my expertise, so they both trust and rely on me. But in the end, I if I don't do my job, they will replace me with someone better. The NFL insists on the best. So too, does the insurer.

Experts:

The experts in legal cases are much like the clock operators, chain crew, and ball boys on Sunday afternoons. They are hired for a specific limited purpose, but they must be the best at what they do, in order to allow me to do my job. They are selected for their particular expertise in a limited area, but without them doing their job, we can not successfully do ours. We must hire the best, because we know we will have to rely on them.

Lawyers:

Of course, a good lawyer is also necessary to successfully defend against that "Perfect Storm". As with Officials on Sunday afternoon, the suit is not about the lawyer, just as the game is not about the Referee. The lawyer doesn't determine the facts, no more than the Referee determines how many yards that running back makes, or whether the QB throws an interception. But the Lawyer and the Referee control the game and do their best to facilitate a fair game or a good result. A good lawyer relies on everyone around him to "win" that Perfect Storm.

The lawyer has to trust the rest of the "crew" - client, insurer, and experts - and has to count on them to give accurate and complete information. If anyone in that process fails, it can bring down the entire case - no matter how good a job the rest of the "crew" does.

On that snowy afternoon in Dallas, when the play ended with 0:02 on the clock, and we dug to the bottom of the pile to find the Miami player in possession of the football in the end zone, I had to rely on the entire crew in order to get the play right and thus determine the outcome of that game. If I had not gotten the correct information from each of my officials, I would not have known the details that resulted in the enforcement of a very unusual rule. And if the clock operator, my "expert" on that play, had not properly stopped the clock with 0:02 remaining, the game would have been over, and Dallas would have won. Instead, he did his job, allowing one more play for Miami to kick the winning field goal. If my boss had not trusted me with handling that high profile game, much like the insurer trusts me to handle an important claim for one of its valued clients, I would not even have been in Dallas that afternoon to make the ruling that I did. And finally, if I had not been mentally prepared to deal with the pressure of a hundred million people watching on TV waiting for me to make a ruling that would determine who won, along with a complete knowledge of the rules, I would not have succeeded in "getting it right". (Although there are many who maintain that I just happened to guess right that day... No comment from me on that one, other than to say - it's better to be lucky than good!)

Edward G. Hochuli is an attorney with the Phoenix firm of Jones, Skelton and Hochuli. Mr. Hochuli specializes in the defense of products litigation, many of which are medical device product cases.