Valuable TIPS from DABF Product Liability Seminar

Thanks to all who participated in our recent Product Liability seminars in Copenhagen and Århus. In the words of one participant: “This was one of the most informative short seminars I have ever attended”.

The presentations were excellent, but not all of the ‘gold nuggets’ of information were written down in the slides. In case you were unable to attend (or even if you did), we’ve compiled this summary of great advice shared during the seminar:


TIP: When faced with a product liability complaint, prompt action to evaluate design, warnings, and manufacturing processes may reduce punitive damages awarded to the plaintiff.

TIP: Typically, federal court is a better venue than state court for Danish businesses. Federal judges are appointed for life, as opposed to state judges who may face local political pressures of re-election at regular intervals.

TIP: Challenge the admissibility of the opinion of every liability expert (unless, of course, you’ve used that expert yourself in the past). There is no downside to it, and it sets the stage for appeal.

TIP: In regards to subsidiaries in the US: Avoid inadvertently piercing the corporate veil. If you excessively overlap management and/or share resources between a subsidiary and parent company, US courts may view the subsidiary and the parent as the same legal entity with common assets. In this case, liability may no longer be limited to the insurance policy and/or assets of your US subsidiary.

TIP: The word DANGER means misuse of a product is hazardous and will cause death. WARNING means misuse might cause death. CAUTION means misuse may result in injury.

TIP: Labels, warnings and instructions should be written at a 12 year old comprehension level.

Always seek experts in local idiom to make sure your warning is translated properly.

TIP: Make sure your supply chain partners are insured.

TIP: When faced with a product liability complaint, don’t accept a wait-and-see strategy from your lawyer. Make sure your lawyer is proactive and makes every credible pre-answer motion possible before answering the complaint. This may knock out some of the claims and narrow the complaint.

TIP: Negotiate the scope of documents to which the plaintiff may have access. Many judges favor identifying a specific number of concrete search terms to use to identify relevant electronic documents.

TIP: Implement thorough record keeping policies now to make it easier to handle a potential lawsuit in the future – even down to keeping documentation about alternative designs considered, and reasons for rejecting the alternative designs).

TIP: When implementing a new IT system, make sure you identify the relevant documents you need to preserve and transfer them into the data format needed for the new system.

TIP: Join an appropriate trade association for your industry. You will be responsible for the industry’s ‘common knowledge’ and this is a good source for that knowledge.

TIP: Try liability claims first, before trying damages. This helps keep sympathy out of the equation when determining whether or not there is liability.

TIP: When acquiring a company, generally buy assets, and not its stock. If you buy its stock then you, may also buy continuing liability for the purchased company's future product liability exposure.

About the presenters:

	Jens Rostock-Jensen, Partner, Kromann Reumert. Jens specializes in insurance and tort law, notably product liability and coverage. He represents clients in court and arbitration proceedings both in Denmark and abroad, acts as an arbitrator in commercial disputes, and has also conducted cases before the European Court of Justice.
	Christopher G. Kelly, Partner, Holland & Knight. Mr. Kelly is the Litigation Practice Group Leader for the 30-member Litigation Group in New York. His practice focuses primarily on the defense of mass torts, toxic torts, federal and state court class actions (consumer, labor and privacy), contracts, product liability and insurance coverage disputes.
	Carsten Adsbøll, Liabilities Division Manager and Gregg Piltch, Regional Manager, Liabilities Division, Chartis Europe S.A.. Chartis is a world leader in insurance with 90 years of experience and 40,000 employees serving clients in more than 160 countries and jurisdictions. More than 45 million clients around the world rely on Chartis to meet their unique insurance needs.