American Conference Institute\'s 9th Annual Summit on Defending & Managing

Automotive Product Liability Litigation

Expert Strategies for Singled-Out Vehicles and Media-Focused Issues

Thursday, June 09 to Friday, June 10, 2016
InterContinental Chicago Magnificent Mile, Chicago, IL

Day 1: Thursday, Jun 09, 2016

7:30
Registration and Continental Breakfast
8:00
Co-Chairs Welcoming Remarks
  • Thomas P. Branigan
    Executive Managing Partner
    Bowman and Brooke LLP
  • Cari K. Dawson
    Partner
    Alston & Bird LLP
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 – 9:25)
  • Kristi Fielder
    Attorney
    General Motors Company
  • Jonathan R. Murphy
    Legal Counsel
    Kawasaki Motors Corp., U.S.A.
  • Keith Benjamin
    Group Legal Director
    Jaguar Land Rover
  • James G. Derian
    Corporate Counsel
    Delphi Automotive Systems, LLC
  • Chris Egner
    Product Liability Attorney
    Corporate Law Department
    Continental
Panel 2 (9:30 – 10:45)
  • Kathleen M. Cindric
    Litigation Counsel
    Cooper Tire & Rubber Company
  • Donald R. Parshall, Jr.
    Senior Counsel
    Nissan North America
  • Steven L. Grey
    Chief Counsel – Product Legal
    Isuzu North America Corporation
  • Thomas N. Vanderford, Jr.
    Associate General Counsel, Executive Director, Litigation
    Hyundai Motor America
  • Dawn S. Pittman
    Managing Counsel
    Toyota Legal One c/o Toyota Motor Sales, U.S.A., Inc.
  • Scott Richardson
    Senior Counsel, Litigation
    Bridgestone Americas Holding, Inc.
Panel 1 & 2 Co-Moderators:
  • Thomas P. Branigan
    Executive Managing Partner
    Bowman and Brooke LLP
  • John D. Golden
    Partner
    Golden & Grimes LLP

Changing Landscape and New Claim Trends

  • Examining the latest claims being filed: Vehicle safety assist technology that makes cars safer; Evaluating the enormous cost of litigating a case and hiring an expensive expert
  • Understanding the changing landscape including the trend toward catastrophic claims with potential for bigger settlement/verdict

Expertise and Coordination with Outside Counsel

  • Managing defense counsel
  • Coordinating counsel for pattern litigation

Legal Costs and Fees

  • Managing outside counsel through budgets
  • Alternative billing arrangements
  • Managing the exorbitant cost of defending cases that require retention of expert witnesses and expense of obtaining the testimony required by Daubert rulings
  • Frivolous lawsuits when injury results from the accident itself (not a defect)
  • Awareness of general counsels who have a responsibility to report and advise to a CEO

Case Evaluation

  • Trial v. settlement?
  • Controlling future litigation: knowing when to resolve a case for economic reasons and when to pay significantly more to defend a suit

Selection & Evaluation of Outside Counsel

  • Underlying partner relationships and engagement
  • The things that clients really want to know
  • Demystifying the firm selection process
  • Communication and candor with clients
  • Pet peeves: “worst practices” by counsel
  • Expectations relating to litigation budgets
10:45
Morning Break
10:55
The Latest Nuances on Defending Typical Defect Theories: Rollovers, Side Curtain Air Bags, Tire Aging, Electronic Stability Control, Seat Backs and Beyond
  • Glenn A. Jackson
    Attorney
    GM Legal Staff
  • Gerard Cedrone, Esquire
    Shareholder
    Lavin, O’Neil, Cedrone & DiSipio
  • Kevin C. Schiferl
    Member
    Frost Brown Todd LLC

Rollovers

  • Factoring in the latest mechanics and engineering issues into rollover claims

Side Curtain Safety Canopy/Rollover Curtain

  • Combatting the latest claims that defendant should have had a Rollover Safety Canopy/Curtain in place or sooner and the injuries would have been mitigated if did; should not have been optional; should have covered more rows
  • Factoring in accident sequence; pre-trip occupant position; occupant kinematics; type of injury
  • 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

Tires and Tire Aging

  • Combatting the latest claims regarding lack of proper warnings, improper tire manufacture or design, improper recommendation, failure to follow recommendations by retailers
  • 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
  • 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: FMVSS regulations
  • 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

Seat Back Litigation

  • Combatting the latest claims arising out of rear-impact cases in which occupant(s) of the vehicle hit sustain injuries due to the deformation of the front passenger seats

Asbestos Brake Pads

  • Litigation over brake pads that contain asbestos
    12:15
    Recalls: How They Are Impacting Class Actions, Copycat Class Action Litigation, Duty to Warn, and Recall-Based Rule 23 Arguments
    • Neal Walters
      Partner
      Ballard Spahr LLP
    • Vance Wittie
      Partner
      Sedgwick LLP

    Recalls

    • Developing a strategy when plaintiff gets notice of a recall after an accident
    • What is the litigation strategy for recall cases?: Strategies for helping the jury understand that despite recall company acted reasonably in terms of timing and notification of issuance of recall; Punitive damages
    • Duty to warn concerning alleged manufacturing defect
    • Business to business relationship: How one company will sue another company in the aftermath of a recall and claim part or system was fully to blame for the recall
    • Dispute over problem and cause of defect
    • Recalls and Business Impact: How the latest recalls are impacting class claims
    • Using recalls as a strategic measure to defeat class actions
    • Identify and develop appropriate Recall based Rule 23 arguments
    • Asserting mootness arguments
    • Litigation based on diminution of value of car as a result of the alleged defect
    • Dealing with pattern litigation — individual lawsuits based on recalls
    • Resolving time delay issues
    • How plaintiffs are filing copycat class action litigation based on recalls
    1:10
    Networking Lunch for Speakers and Attendees
    2:10
    Recent Developments in Class Action Litigation Including No Injury Class Action Suits, Recent Legislative Activity in California on Expanding Product Liability on Defective Products, and More
    • Cari K. Dawson
      Partner
      Alston & Bird LLP
    • Michael B. Gallub
      Member
      Herzfeld & Rubin, P.C.
    • Jeffrey P. Hinebaugh
      Partner
      Dinsmore & Shohl LLP
    • What cases are recently decided and brewing that will directly affect manufacturers and consumers? Where is the battleground today and for the near future in Class Actions?
    • Examining the interplay between Knowles and CAFA: Removal from state to federal court where total recovery including attorney’s fees is $5million or more; Preventing forum shopping
    • Identifying the commonality of class action claims
    • “Rule 23(b)(3)” class actions
    • Arbitration clauses on class action waivers
    • Nuances with MDL Litigation
    • Plaintiffs who suffer no injury/harm but are still able to file class action suits
    • Examining the Whirlpool decision and case law that has been filed since this ruling
    • Recent California legislative activity on expanding liability on defective products
    • Voluntary actions undertaken by a manufacturer to moot a class action law suit: Motion practice; Voluntary recalls; Repairing the defect free of charge; Reimbursement to consumer
    3:15
    The Current Regulatory Environment for Litigators: Incorporating the Latest Regulatory Initiatives on Safety and Design of Automotive Products Into Your Litigation Strategy
    • Paul Hemmersbaugh
      Chief Counsel
      National Highway Traffic Safety Administration
    • Erika Z. Jones
      Partner
      Mayer Brown
    • Making sure your client is rigorously documenting its “engineering logic” methodology
    • Ensuring your client has the right conversations with the regulators
    • NHTSA developments and bulletins and legitimately recalling a car that was compliant with NHTSA
    • Potential regulatory implications for autonomous cars
    • Global trends: Safety standards; Energy efficiency; Environmental protection; Theft-resistance

    European Union (EU) Directives; UNECE Regulations; UN Global Technical Regulations

    • NHTSA’s request for data for purposes of infrastructure; how does this reconcile with FTC’s consumer privacy concerns?
    • Recent activity by the CPSC
    • Settlement concerns
    • Producing documents early on in the process
    • Notifying NHTSA of recalls
    4:05
    Afternoon Break
    4:15
    Identifying Product Liability Issues Associated with Autonomous Cars and Semi-Autonomous Cars, and Sorting Through Indemnification Issues with Manufacturers When Plaintiffs Argue the Product is Defective
    • Lisa Gilford
      Partner
      Skadden, Arps, Slate, Meagher & Flom LLP
    • John Isaac Southerland
      Partner
      Huie Fernambucq & Stewart LLP
    • Product liability defenses associated with autonomous and semi-autonomous cars
    • Identifying indemnification issues when manufacturers sue each other for indemnity
    • How do auto manufacturers deal with requests for source codes (proprietary information on how the vehicle functions)
    • Where are we on the latest claims and where are we headed?
    • How to factor in questions of driver’s unreasonable reliance on manufacturer/distributor representations and Driver’s possible misunderstanding of system functions or limitations
    • What happens when the system fails and operation by the driver could have prevented an accident?
    • Anticipating the future of product liability litigation in autonomous cars
    5:15
    Cyber Security/Hacking Issues with Vehicles: Safety Concerns, Liability Issues, Remote Access to Vehicles, and Pending Legislative Activity
    • Thomas P. Branigan
      Executive Managing Partner
      Bowman and Brooke LLP
    • Paul Wojcicki
      Shareholder
      Segal McCambridge Singer & Mahoney
    • David M. Rice
      Partner
      Squire Patton Boggs (US) LLP
    • How is the industry responding to the recent hacking issues with vehicles?
    • Explaining the technology behind remote access and controlling a vehicle miles away
    • What are the liability issues?
    • How is NHTSA responding?
    • Examining the effect of any pending legislative activity on cyber security on vehicles and how this can impact the industry
    6:15
    Conference Adjourns to Day Two

    Day 2: Friday, Jun 10, 2016

    7:30
    Continental Breakfast
    8:00
    View From the Bench: A Unique Opportunity to Hear How Judges Interpret Evidence/Arguments in the Automotive Context
    • Hon. Ruben Castillo
      U.S. Dist. Ct., N.D. Ill.
    • Hon. John M. Younge
      Phila. Ct. Common Pleas
    • Hon. Jack Tuter
      17th Jud. Cir. Ct., Fla.
    • Hon. Judith H. Matarazzo
      Multnomah Co. Cir. Ct., Ore.
    • Hon. Alan C. Torgerson, (ret.)
      U.S. Dist. Ct., D. N.M.
    Moderator:
    • Anthony J. Monaco
      Partner
      Swanson‚ Martin & Bell‚ LLP
    9:30
    Morning Break
    9:40
    Practical Pointers on Experts: Examining Rule 26 on Experts, Effective Cross-Examination Techniques, Sharing of Experts, and Developing Qualified Newer Experts
    • Mark Jicka
      Member
      Watkins & Eager PLLC
    • Michelle I. Schaffer
      Shareholder
      Campbell Campbell Edwards & Conroy Professional Corporation
    • Brian J. Baggot
      Partner
      Rumberger, Kirk & Caldwell, P.A.

    Cross-Examination

    • Creating the right defense strategy to effectively cross examine Plaintiffs 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

    Sharing Defense Experts

    • What are the issues associated with sharing defense experts? What are the traps? How do you handle sharing defense experts when one defendant is out of the trial but other defendants are still in the litigation/trial?

    New Experts

    • How to find newer experts as the aging population of older experts retire
    • Addressing the aging population of routinely utilized experts and developing/herding qualified newer experts
    10:45
    Evidence Preservation/Spoliation, Controlling Costs Associated with Discovery and E-Discovery, and Avoiding Sanctions for Discovery Abuse
    • Holly M. Polglase
      Shareholder
      Hermes, Netburn, O’Connor & Spearing, P.C.
    • Lisa Moran McMurdo
      Partner
      Moran Reeves & Conn PC
    • Dennis P. Ziemba
      Member
      Eckert Seamans Cherin & Mellott, LLC

    Evidence Preservation/Spoliation

    • PRESERVATION OF: The subject vehicle; all parts and components of the subject vehicle; downloadable computer data; Photos/video of the vehicle and the scene; Email, letters, memoranda or other documents; Online social media content created
    • Reconstructing evidence and schematics of vehicle impact
    • Spoliation: what are the courts doing and what abuses are still being experienced?
    • Elements to a spoliation argument: Culpability, relevance, and prejudice; Proposed amendment to Rule 37(e)
    • Overcoming the issue when the vehicle is completely destroyed and evidence is lost
    • 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

    • Ways to effectively and defensibly control costs associated with discovery
    • Understanding the law in different jurisdiction and how this impacts your case
    • Implementing document/litigation holds
    • Addressing proportionality in e-discovery: How courts are addressing e-discovery issues in the beginning of the litigation process rather than the end
    • Keeping e-discovery plans current and defensible
    • How e-discovery practices apply to automotive databases for warranty and service maintained by automotive companies
    • Proposed changes to the Federal Rules of Civil Procedure: Safe harbor provisions; Preservation; Production
    • What big data means in the e-discovery context

    Sanctions for Allegations of Discovery Abuse

    • How courts are increasing sanctions for allegations of discovery abuse: Recovering attorney’s fees; Striking pleadings
    • Implementing strategies and procedures both 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
    11:45
    Overcoming the Increasing Use of Reptile Theory as a Trial Tactic Used for the Jury
    • Jeffrey M. Croasdell
      Director
      Rodey, Dickason, Sloan, Akin, & Robb, P.A.
    • James J. Yukevich
      Partner
      Yukevich Cavanaugh
    • How does the reptile theory work?
    • Sizable verdicts based on the use of the reptile theory during trial
    • Tapping into the reptile part of the brain of the jury
    • Asking the jury to put themselves in the shoes of the plaintiff
    12:35
    Networking Luncheon
    1:35
    Spotlight on Personal and General Jurisdiction: Case Law Updates, Supreme Court Rulings, Resolving Issues with Foreign Defendants, and Defining Being at Home and Principal Place of Business
    • Jeffrey A. Cohen
      Shareholder
      Carlton Fields Jorden Burt
    • Todd C. Jacobs
      Managing Partner
      Shook, Hardy & Bacon L.L.P.
    • Robert F. Chapski
      Shareholder
      Lewis, Thomason, King, Krieg & Waldrop, P.C
    • Peter J. Fazio
      Partner
      Aaronson Rappaport Feinstein & Deutsch‚ LLP
    • What are the new court rulings and Supreme Court cases on personal and general jurisdiction?
    • Interpreting the Daimler case: What is the definition of “being at home”?; Defining principal place of business
    • Have the courts being following Daimler?: Identifying cases that are the outliers
    2:55
    Ensuring Confidentiality in the Litigation of Automotive Claims, Protecting Work Product in a Discovery Dispute, and Using Arbitration to Your Advantage (featuring 30 minutes of CLE-Ethics credit)
    • John (Jay) R. Reid, Jr.
      Partner
      McDonald Toole Wiggins, P.A.
    • John Mark Goodman
      Partner
      Bradley Arant Boult Cummings LLP
    • Properly communicating with the client on document retention and production
    • Advising experts on deleting draft opinions that are considered work product
    • Notifying class of arbitration via the internet and whether this satisfies due process
    • Filing motion to compel arbitration by a third party beneficiary (component part manufacturer)
    • Determining whether the claim and product at issue is within the ambit of the contract
    • Allowing the third party beneficiary to arbitrate even though the contract is between the plaintiff and the dealer
    3:55
    Conference Ends