DAY ONE – Thursday, June 6, 2013
7:30 Registration and Continental Breakfast
8:00 Co-Chairs Welcoming Remarks
Mark V. Berry
Bowman and Brooke LLP
Michelle I. Schaffer
Campbell Campbell Edwards & Conroy PC
8:05 In-House for Manufacturers and Suppliers Speak Out on Managing Outside Counsel, Reducing Costs, and Formulating Early Defense Strategy
Panel 1 | (8:05-9:15)
Scott Richardson
Senior Counsel,
Litigation Bridgestone Americas Holding, Inc.
Nan Meyer
Managing Director - Casualty/Products Liability
Markel Corporation
David Peim
Senior Corporate Counsel
Honda North America
Erinn D. DePorre
Senior Counsel
Product LitigationChrysler Group LLC
Jason Erb
Assistant General Counsel
Hyundai Motor America
Robert L. Kollar
Legal Counsel
Kawasaki Motors Corp., U.S.A.
Angelyn Guanajuato
Assistant General Counsel
U-Haul International, Inc.
Alexandra K. Nellos
Attorney, Law and Public Policy, Legal Services Division
Caterpillar Inc.
Moderator Panel 1
Mark C. Walker
Cox Smith
Panel 2 | (9:15-10:25)
Steven L. Grey
Chief Counsel, Product Legal
Isuzu North America Corporation
Thomas T. Johnson
Legal Counsel
Kawasaki
Damon L. White
Attorney Office of General Counsel
General Motors
Emily Muceus
Senior Attorney, Law Department
Deere & Company
Steve Taub
Assistant General Counsel
U-Haul International Legal
Nicholas Secord
Litigation Counsel,
Kia Motors America
G. Webster Burns
VP, Assistant General Counsel
Toyota Motor Sales, U.S.A., Inc.
Tom Griffing
Corporate Quality Assurance
Yokohama Tire Corporation
Moderator Panel 2
Gerard Cedrone
Lavin, O’Neil, Ricci, Cedrone & DiSipio
Expertise and Coordination with Outside Counsel
- Managing defense counsel efficiently and effectively
- Balancing the difficulty of finding quality counsel
- Coordinating counsel for pattern litigation
Managing Legal Costs, Including Outside Counsel Fees
- Managing outside counsel through realistic and accurate budgets
- What alternative billing arrangements are out there and what are the success stories?
- Managing the exorbitant cost of defending cases that require retention of expert witnesses and expense of obtaining the testimony required by Daubert rulings
- Budgeting overall expense in taking a case through trial yet keeping the case resolvable level without the need for trial
- Frivolous lawsuits when injury results from the accident itself (not a defect): how to avoid the sheer volume of these suits placing a burden on legal resources
- Awareness of general counsels who have a responsibility to report and advise to a CEO
Case Evaluation
- Determining which case should go to trial and which should settle
- Controlling future litigation: identifying trends to ward off future lawsuits; knowing when to resolve a case for economic reasons and when to pay significantly more to defend a suit
In-House Perspectives on Selection and Evaluation of Outside Counsel
- Underlying partner relationships and engagement of outside counsel
- The things that clients really want to know before engaging outside counsel
- Demystifying the firm selection process
- Best practice for communications and candor with clients
- Pet peeves: “worst practices” that outside counsel should avoid committing
- Expectations relating to litigation budgets
10:25 Morning Break
10:30 The Latest Nuances on Defending Typical Defect Theories: Seatbacks, Roof Crush, Seat Belt/Restraints, Air Bags, Tire Failure, Electronic Stability Control, Crashworthiness and Beyond
Kevin C. Schiferl
Frost Brown Todd
Richard H. Grafton
Germer Gertz LLP
Rafe Taylor
Johnson, Trent, West & Taylor LLP
Peter Fazio
Aaronson Rappaport Feinstein & Deutsch LLP
De Martenson Huie,
Fernambucq & Stewart LLP
Seatbacks
- Evaluating the movement of the seat during an accident
- What are the experts saying about seatbacks?
- Responding to allegations the design of the seat back in a rear end collision is inadequate because it allows the driver to incur encounters in the rear
Seat Belt
- Examining the typical design defect theories asserted in seat belt claims and restraint cases
- Evaluating the performance of seat belts and protection of the occupant
- Assessing buckle defect theories: inertial, inadvertent, and unintended release issues Understanding seat belt geometry defect theories and occupant excursion
- Examining alternative causation theories: the plaintiff ’s fault in undermining seat belt effectiveness
- Interpreting physical evidence on the seat belt to determine use and occupant kinematics
Roof Crush
- Examining typical defect theories asserted in roof cases
- The causation defense: Malibu / CRIS and the diving mechanism of neck injury
- Admissibility of Malibu / CRIS and roof litigation testing -Roof intrusion velocity: a plaintiff theory to overcome Malibu/CRIS
- Overcoming the argument the roof lacked sufficient strength to support the vehicle
- Analyzing the different tests required by the NHTSA and whether there should be stricter standards of compliance
- Determining whether NHTSA should require backup cameras as an additional safety standard
- The 2009 revision to FMVSS Rule 216: roof strength standards and revised attempt to correlate roof intrusion and neck injury
Side Curtain Air Bags
- Determining whether side curtain airbags should be required and more than a standard in vehicles
- Combating Plaintiff’s argument that side curtain airbags should have been installed sooner or that all models should have side curtain air bags
Air Bags
- Explaining the biomechanics of air bags
- Countering Plaintiff’s argument the air bag should have gone off
- Would the air bag have prevented the injury?
Tires
- Analyzing the relationship between tread separation and loss of control
- Analyzing typical tire defenses, including damage from service abuse and damage from road hazards
- Successfully creating the best defense strategy for tire claims
- Tire technology and its impact on performance of the vehicles
- Assessing the issues regarding low profile tires and higher end vehicles
- Emerging technology on run flat tires
- Developing litigation strategy to dismiss the product liability claims and minimizing damages
- Examining tire aging claims
- Identifying the dangers associated with high PSI tires
Electronic Stability Control (ESC)
- Examining the liability issues presented by electronic stability control (ESC): the federal regulation that applies, and its effect on liability
- How to counter “lack of ” electronic stability control (ESC) claims: Countering plaintiff ’s argument that if said changes were made (usually at a few dollars per vehicle) the accident/injury would not have occurred
- How to respond to ESC as a direct challenge to the defense that rollovers are the result of driver conduct and that an accident is unavoidable
Heavy Truck Crashworthiness
- Addressing post-collision fuel fed fire claims
- Evaluating roof strength claims
- Examining rear wall cargo migration claims
11:50 The Defense of Claims Involving Vehicle Driver Assist Systems Technologies that Warn, Steer and/or Apply Brakes: Forward Collision Warning, Pedestrian Detection, Adaptive Cruise Control, Blind Spot Detection, Lane Departure Warning, Traffic Jam Assist and More
Peter Baur
Department Head, Product Analysis
BMW of North America, LLC
Peter M. Durney
Cornell & Gollub
- Technologies that warn steer and/or apply brakes to assist the driver including particular systems like Forward Collision Warning, Pedestrian Detection, Adaptive Cruise Control, Blind Spot Detection, Lane Departure Warning and Traffic Jam Assist:
- How do these systems work?
- What is the consumer expectation?
- How do you defend cases with these types of technologies?
- What is the comparative negligence?
- Determining whether software controlled missing features could lead to product liability claims
12:35 Incorporating the Latest Regulatory Initiatives on Safety and Design of Automotive Products Into Your Litigation Strategy O. Kevin VincentChief Counsel National Highway Traffic Safety Administration
Alan C. Yarcusko
Director of Technical Standards & Regulation
Bridgestone Americas Tire Operations LLC
Joseph S. Kiefer
Snell & Wilmer
- Reviewing the impact of new, proposed, or final labeling regulations (wet traction capability of a tire, fuel economy of a vehicle, etc.) that have product liability (and consumer litigation) implications
- How does the Obama administration impact proposed regulation by NHTSA?
- Updates on the globalization of automotive regulations
1:30 Networking Lunch for Delegates and Speakers
INTERPLAY OF CLASS ACTION LAWSUITS BASED ON PRODUCT LIABILITY AND CONSUMER FRAUD
2:30 The Battleground Today and in the Near Future for Automotive Class Actions, Including Class Certifications
S. Vance Wittie
Sedgwick LLP
Thomas P. Branigan
Bowman and Brooke LLP
Michael B. Gallub
Herzfeld & Rubin, P.C.
Neal Walters
Ballard Spahr LLP
Paul E. Wojcicki
Segal McCambridge Singer & Mahoney, Ltd.
Procedural Strategies for Managing Automotive Class Certification
- Examining CAFA Developments
- The Pleadings Battleground: Standing and Choice of Law
- Motions to Strike
- Update on Discovery from Absent Class Members
- Trying the Class Action
The Substantive Landscape of Automotive Class Action Litigation
- The big cases: Toyota UA; Hyundai/Kia MPG; E-350
- Substantive developments: Significant Manifestation, Causation and Aggregate Damages Rulings
- Tracking the application of Dukes in automotive cases
Important Automotive Class Action Settlement Considerations
- CAFA limitations on value
- Recent settlement decisions: Adequacy in subclasses and fee petition issues
Managing Expert Evidence in Automotive Class Actions
- The ever-changing standard for class certification scrutiny of experts
- Automotive expert battlegrounds: vehicle design; consumer behavior; economics
Class Action Impacts on Contemporaneous Automotive Business and Warranty Practices
- The role of recalls
- Avoiding secret warranties and warranty and service administration in the midst of a pending defect class action
- Customer service message and talking points
- Media crisis management
3:40 The Latest on Class Actions Based on Consumer Fraud and Disclosure/Accuracy Claims
Gary A. Wolensky
Hewitt Wolensky LLP
Jeffrey P. Hinebaugh
Dinsmore & Shohl LLP
H. Grant Law
Shook, Hardy & Bacon LLP
Lisa Gilford
Alston & Bird LLP
Consumer Fraud Claims
- Defending against consumer fraud class action suits -Identifying claims based on false advertising
- Identifying the nuances of consumer fraud statutes from state to state
- Alleging defects that caused that caused consumer costs for repairs and vehicles diminished in value
- Overcoming the claim that Defendant should have informed the Plaintiff they had pre-existing knowledge of the defect
- Assessing whether consumer fraud and negligent misrepresentation or glorified breach of warranty cases are disguised as class action claims
- Identifying and managing vehicle manufacturing, sales and service documents and data that raise consumer fraud claims
- Examining concepts for training the automotive work force on greater sensitive to regulatory and litigation risk
- Creating trial tactics for defeating automotive consumer fraud claims: deploying consumer behavior principles
- Seeking nationwide class certification status by relying on a particular state’s consumer fraud statute that is favorable to the facts of the case even though some cars were purchased in a completely different state
- Countering plaintiff attorneys’ efforts to take low exposure claims and turn them into huge class actions
- Countering plaintiff ’s efforts to look to commercial-type remedies such as restitution to provide class-wide relief
Disclosure/Accuracy
- Assessing claims that the fuel economy is misrepresented on Monroney Label
- Examining claims of odometer inaccuracy; assessing risk and damages
- Identifying successful defense strategies
- Claims based on breach of express and implied warranty
- Examining regulatory action and investigations by the EPA over fuel rating and MPG
4:40 Afternoon Break
4:45 Priester, McIntyre and Beyond: Updates on the Preemption Defense and International Personal Jurisdiction and Their Impact on Auto Products Liability Cases
David M. Rice
Carroll, Burdick & McDonough LLP
Preemption
- What has been the impact of all recent cases on the preemption defense in automotive cases?
- Examining decisions going both ways
- Interpreting the South Carolina Supreme Court’s decision in Priester that pre-emption attaches and claim was pre-empted
- How will the United States Supreme Court rule on whether the South Carolina Supreme Court applied the Williamson rule correctly?
Personal Jurisdiction
- What are the minimum contacts required for specific personal jurisdiction over foreign product manufacturers after McIntyre?
- Examining the role of stream of commerce
- Is compliance with U.S. federal safety standards enough?
- What is the role of general jurisdiction in products liability litigation?
- Will we see federal legislation impacting personal jurisdiction over foreign manufacturers?
5:10 Effectively Mediating an Automotive Case
Steven L. Grey
Chief Counsel, Product Legal
Isuzu North America Corporation
Joel M. Grossman, Esq.
JAMS
- Timing of the mediation
- Litigation strategy
- discovery
- key items to address before mediation
- litigating with mediation in mind
- Choosing a mediator – Does it matter?
- role of the mediator – advocate
- role of the mediator – authority
- role of the mediator – advocate
- Joint sessions: pros and cons
- role of outside counsel
- role of in-house counsel
- Elements of the settlement to discuss at mediation
- key points
- pitfalls to avoid
- finality of settlement
- Settlement approval
- Strategies on phrasing attorney’s fees in settlement documents
- Settlement administration:
- Medicare reporting requirement
- key administration considerations that affect how a settlement can/should be structured
- Confidentiality
- assessing confidentiality before entering into settlement negotiations
- confidentiality considerations when making settlement offers
- finalizing the settlement in a private agent or by court order
6:00 Conference Adjourns
DAY TWO – Friday, June 7, 2013
7:30 Continental Breakfast
8:00 Using Jury Consultants as a Tool in Your Litigation Strategy
Alex Purvis
Bradley Arant Boult Cummings LLP
J. Tracy Walker
McGuireWoods LLP
- Utilizing jury consultants in big exposure cases:
- When and how to make the decision
- What kind of consultant to retain
- Case themes
- Discovery
- Mock Juries
- Jury Questionaires
- Social Media and Jury Selection
- Voir Dire outline
- Striking the Jury
- Monitoring the Jury During Trial/Shadow Jurors
- Closing
8:40 View From the Bench: A Unique Opportunity to Hear How Judges Interpret Evidence/Arguments in the Automotive Litigation Context
The Honorable Manuel Real
United States District Court for the Central District of California
The Honorable Harold Baer
United States District Court for the Southern District of New York
The Honorable Alexander Williams, Jr.
United States District Court for the District of Maryland
The Honorable Michelle Childs
United States District Court for the District of South Carolina
The Honorable Paul M. Warner
United States District Court for the District of Utah
The Honorable Daniel J. Stack
Illinois Third District Court
The Honorable Clifton Newman
South Carolina Circuit Court
The Honorable Sandra Mazer Moss
Philadelphia Court of Common Pleas
Moderator
Anthony J. Monaco
Swanson, Martin & Bell, LLP
10:15 Morning Break
10:25 Preparing and Defending Daubert Challenges and Creating the Right Strategy to Effectively Cross-Examine Your Adversary’s Expert Jeffrey M. CroasdellRodey Law Firm
Mark D. Jicka
Watkins & Eager PLLC
Lisa Moran McMurdo
Moran Reeves & Conn PC
Daubert
- Amended Rule 702 and keeping unsound expert testimony out
- Protecting drafts of expert opinions and framing this as work product
- Explaining the shift and how this affects the course of litigation
- Using Daubert motions at the summary judgment phases
- Recent challenges that worked and those that did not
- Understanding the evolving issues associated with selection of experts under Daubert
- Striking an expert and determining its impact on causation
- Successfully asserting the claim that Plaintiff’s experts are not qualified under Daubert
- Thoroughly checking the background of Plaintiff’s experts
- Addressing the aging population of routinely utilized experts and developing/herding qualified newer experts
- What is the interplay between Daubert scrutiny of experts and class certification?
- How can you use Daubert and attack expert opinion effectively to fight a motion for class certification?
Cross-Examining Plaintiff’s Experts
- Creating the right defense strategy to effectively cross examine Plaintiff’s expert and exclude their testimony
- Responding to Plaintiff’s proposed vocational expert
- Handling Plaintiff’s NHTSA experts and the claim that the manufacturer did not act quickly and withheld information from NHTSA
- Overcoming Plaintiff’s allegation that Defendants committed fraud against NHTSA
- How discovery plays a key role on fraud claims; examining the record
11:20 Trial Strategy: Harnessing the Power of Social Media to Your Advantage When Gearing Up for An Auto Products Liability Trial
Barry I. Buchman
Gilbert LLP
Robert F. Chapski
Lewis, King, Krieg & Waldrop, P.C.
- Developing strategy to utilize social media to the company’s advantage: utilizing an aggressive plan to protect your company’s image
- Beyond the obvious: what information can you learn about plaintiffs or their witnesses from social media and how can it be used at trial?
- Investigating social media websites to see what prospective jurors or actual jurors are viewing on websites and how to deal with the reality that some jurors will not follow the judge’s instructions
- Looking at the ethical issues involved with using social media to gain information on the plaintiff, opposing witnesses, and jurors: how far is too far?
- Learning the ropes of social media to stay up-to-date with gaining important information
- Conducting jury research on social media topics to handle trial strategy and post trial strategy
12:05 Networking Luncheon for Speakers and Delegates
1:05 Evidence Preservation/Spoliation, Discovery/ E-Discovery, and Sanctions for Discovery Abuse
John “Jay” R. Reid, Jr.
McDonald Toole Wiggins, P.A.
Adam R. Fox
Squire Sanders (US) LLP
Michelle I. Schaffer
Campbell Campbell Edwards & Conroy PC
Evidence Preservation/Spoliation
- What do you need to reconstruct the accident and the vehicle impact?
- Spoliation: what are the courts doing and what abuses are still being experienced?
- Overcoming the issue when the vehicle is completely destroyed and evidence is lost or proving spoliation when someone else has lost vital evidence
- Preserving evidence, especially if the vehicle was involved in a catastrophic accident or fire
- Issues and accusations of document destruction/hiding; how to adequately explain the destruction of documents and maximize the ability of the manufacturer to tell its story
- Using photographs and medical records as evidence
- How to handle insufficient photographing/documenting/retention of evidence by police: can the playing field ever be leveled?
- The vehicle at issue: securing/getting early access to it and efficiently and cost-effectively preserving, inspecting, and photographing it (mapping chain of custody through every step): How far do you go?
- Issues and accusations of document destruction/hiding; how to adequately explain the destruction of documents and maximize the ability of the manufacturer to tell its story
Discovery/E-Discovery
- How to prevent cases from being driven by the cost of discovery
- Negotiating with opposing counsel the scope of discovery (i.e., terms, custodians, and form of production)
- Creating a proportional, cost-effective solution for large discovery requests and cases
- Having the expertise to implement Best Practices at every stage of the discovery process
- Addressing proportionality in e-discovery
- keeping e-discovery plans current and defensible
- How courts address e-discovery issues at the beginning, rather than at the end
Sanctions for Allegations of Discovery Abuse
- Recovering attorney’s fees
- Striking pleadings
- Creative sanctions
- Implementing strategies and procedures with in house and with local/national counsel to streamline the discovery response
- Dealing with expensive discovery requests meant to trap the defendant to get sanctioned
- Limiting broad, overwhelming, and unnecessary discovery requests
- Examining motion practice
- Defending the “Gotcha Game”
2:00 Cell Phones, Smart Phones, Navigation/Other Electronic Devices and Beyond: How Defense Counsel Can Use the Distracted Driver Defense as a Shield in Products Cases and New Liability Theories Being Advanced
Robert M. Cook
Goldberg Segalla LLP
Larry D. Grayson
Hartline Dacus Barger Dreyer LLP
Nancy M. Erfle
Schwabe, Williamson & Wyatt
- Determining whether integrating technology in cars is an advancement in science or an increase in the risk of distraction
- Dealing with the issue of distraction with the emergence of interactive systems in vehicles
- Texting, using smart phones? Do they appreciably increase the risk of the crash?
- Using distracted driving as a defense strategy and evaluating its strength evidenced by city/state statutes prohibiting texting while driving
- Assessing the practical issues in determining whether the facts of your case are conducive to using distracted driving as a shield
- Defending against the claim that the product manufacturer created the distraction
2:55 Main Conference Ends
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