Archived Webinars

All archived webinars are merely for educational and viewing purposes ONLY. NO CLE CREDIT will be given for watching the archived webinar.

Forensic Business Pathology

TASA ID: 1648

On August 9, 2016 at 2:00 p.m. (ET), The TASA Group, in conjunction with products liability and organizational negligence expert Tom Taormina, presented a free, one-hour interactive webinar presentation, Forensic Business Pathology, for all legal professionals. During this presentation, Mr. Taormina discussed:

  • The Journey from Warranty to Tort
  • The Foundation of FBP
  • FBP for the Defense
  • FBP for the Plaintiff
  • Case Studies
  • Winning Strategies



Forensic Business Pathology from The TASA Group, Inc. on Vimeo.

About The Presenter:

With a unique perspective from having worked with more than 700 companies in his 48-year career, Tom Taormina brings a rare talent for precision problem diagnosis, strategic thinking and outstanding written and verbal communications skills to any business seeking brand excellence.

Tom was a member of the Apollo 13 disaster recovery team at Mission Control in Houston. His experiences during his 14 years at NASA formed the foundation for his ability to rapidly analyze problems, diagnose solutions and work with enlightened business people to implement successful outcomes. This skill set makes him a highly sought-after consultant and an eminent expert witness in products liability and organizational negligence.


Moderator: Good afternoon and welcome to today's presentation, "Forensic Business Pathology." In today's webinar, Mr. Taormina will discuss the journey from warranty to tort, the foundation of FBP, FBP for the defense, FBP for the plaintiffs, case studies, and winning strategies. To give you a little background about our presenter, Tom Taormina, with a unique perspective from having worked with more than 700 companies in his 48-year career, Tom Taormina brings a rare talent for precision problem diagnosis, strategic thinking, and outstanding written and verbal communication skills to any business-seeking brand excellence. Tom was a member of the Apollo 13 Disaster Recovery Team at Mission Control in Houston. His experiences during his 14 years at NASA formed the foundation for his ability to rapidly analyze problems, diagnose solutions, and work with enlightened business people to implement successful outcomes. This skill set makes him a highly sought-after consultant and an eminent expert witness in products liability and organizational negligence.

Attendees who require a passcode, the word for today is Pathology. During the Q&A session, we ask that you enter this passcode into the Q&A widget for CLE reporting purposes. The Q&A is located to the left of your screen. Please remember that if you are applying for CLE credit, you must log onto your computer as yourself and stay for the full 60 minutes. You're also required to complete the survey at the end of the program. Please note that CLE credit cannot be given to those watching together on a single computer. Tomorrow morning, we will send out an email with a link to the archived recording of the webinar. The slides and an article written by Mr. Taormina can be downloaded from the resource list to the left of your screen. Thank you all for attending today. And Mr. Taormina, the presentation is now turned over to you.

Tom: Thank you and good afternoon to all. The presentation today is called "Forensic Business Pathology." As we go through this, you'll find that it's not just a clever marketing name. It is that every business that I've been involved with over the last 40-something years has a personality. The business exhibits a life of its own and it has its own inner workings that can be looked at pathologically. So the term forensic business pathology, as we go through the presentation, will take on a meaning that will help both plaintiff and defense attorneys.

I'm putting up a standard disclaimer. I don't intend to read it. It's just what you would find between any expert witness and an attorney. So it's just saying that I am not responsible for how you use this information. And I appreciate your patience and your understanding. So, first of all, I started the presentation off with a term called "The Journey from Warranty to Tort." Majority of my work is, as a consultant, helping companies with process improvement, process excellence, and getting rid of foreseeable risk. The use of the journey, it starts with accepting what I've worked with them and the acceptance of the processes that we put in place before whatever they're doing leads to a lawsuit. Keeping companies out of lawsuits is my primary work. Secondarily, if they do wind up being involved in a lawsuit, my job is to help plaintiff or defendant prove their case. So I'd rather catch it at the warranty piece of it because these sort of headlines appear all too frequently in the papers and online where there's recalls for this, there's recalls for that. And my contention to you is that every one of these is avoidable. It sounds like a pretty bold statement, but I found it to be true, especially when I'm working on a case where there were more signs of a potential problem that was very present and very known, and they were just either ignored, or the company made up their mind that it was just a cost of doing business to have a certain number of recalls every year.

Why? Well, obsession with profit. I'm not saying that there's anything wrong with obsession with profit. It's just that along with profit comes the cost of doing business and the cost of delivering products and services that are error-free. In the case of products, especially consumer products, we have something now called "The Box Store Effect." They actually set the price points on common items. If you're going to provide a 12-light flocked Christmas tree, here is the price that we're going to pay, and you have to meet that price or else we'll buy it from someone else. They also, in that process, have what they call an acceptable defect rate. I've had contracts where the companies put in a contract that they're going to send 25% more product than ordered because they have a 25% defect rate. And they seem to think that's okay. In one particular case I worked, and I still have a copy of the deposition, where a so-called quality manager of a company, that they had to kill an acceptable kill rate. They knew they were going to kill a few people every year. So that was part of their spreadsheet and bottom line.

The other thing that we'll cover repeatedly is a poorly defined duty of care. Again, working with 700 companies in so many different industries, there are industries that have no standard of care and duty of care defined. So, in those cases, I define them myself. But in the vast majority of cases, there are professional organizations, regulatory agencies that do have a definition of duty of care. It's up to the company as to whether they accept it and perform an acceptable standard of care. And abdication of standard of care is another huge reason for product liability litigation. It's just too much trouble to deal with the problems, so they just abdicate responsibility. And the laws of random perversity find them in a lawsuit eventually. And finally, safety testing. And we'll talk more about each of these in detail.

First of all is the profit-driven culture, making demanded profit projections by any means. Of course, there's only two ways to make a higher profit, raise the price or lower the cost. But the box stores have really done a disservice to us by having these price points that they set and manufacturers have to, not only compete with one another for market share, but they have to meet those price points. The second portion of this is what I call the obsession with mediocrity. This business of acceptable defect rates has always made me crazy. I'm on the outs with most of my colleagues in the quality community because of the popular theory of Six Sigma, where 3.4 feature defects per million opportunities is the ultimate that any company could ever achieve. Well, I would find in pharma, first of all, that's not a good number. I'd rather not have 3.4 aspirin be something else out of a million aspirin batch. So I'm a steadfast believer. And I've seen it done and I facilitated it, where companies can achieve better than [inaudible 00:09:06.924] outcomes in products and services. And this acceptable kill rate thing, I will never forget that deposition where this fellow just absolutely said, "Look, the people that use our products are fat and stupid. And we're going to kill one or two every year." And to me, that's just unconscionable. But it keeps us all in business as defense lawyers, prosecutors, plaintiff attorneys, and expert witnesses.

Duty of care and standard of care. In my experiences over the last 15 years, duty of care is poorly defined. Industries do not seem to set an acceptable duty of care unless there is a professional organization or regulatory organizations that define it for the attorneys, define it for the manufacturers. So, sometimes, duty of care or what should have been done is determined in litigation. And as all of you know, having a jury decide duty of care or standard of care is not the kind of outcome that you want to accept. You want to make sure it's defined well ahead of time. So a lot of the work I do is first defining for that particular product, or service, or event, what should the duty of care have been? How do I research the different professional organizations for that particular product? And how do I extract out of them their particular standards for their own industry? And if it's not standard, I use the opportunity to compare what other companies have done and remind the plaintiff or the defendant that the definition of standard of care is the degree of care a reasonable person or organization would take to prevent an injury to another. It's just that simple. So if I can't find any information on a particular product and, of course, some of the products I've worked with are pretty obtuse, then I use my quality management training. And I will propose to the attorneys a definition of standard of duty of care and standard of care to be used in a particular litigation we're involved with. So leaving either of those definitions to a jury or a judge, to me, is a certain disaster for any case.

Here's an example. This graph is obviously not meant to be read, per se. But as I begin my work after the initial contact with the attorney and retainer to do the initial assessment, I go through and build a matrix similar to this, where I find in the documents that have been provided to me either just the filings and the documents within the court system to date or whatever discovery is available. I start a matrix of the particular product and see if I can identify the standard of care, duty of care, and then what that means in the context of the case. So, again, this is not meant to be something we go through. It's just an example of a matrix that I will create early in the case. The next part of this is safety testing. It just so happens I grew up in the same community with the Underwriters Laboratories' headquarters and I knew quite a few of the engineers. At the time, in the '50s and '60s, it seemed like having a UL certification was really a great thing because a company would do diligence and they would... Lorna, [SP] are we having a blank screen? I have a message up here.

Okay, I'll keep going. They told me regularly the companies that they worked with would take a product like a television and design it, and test it, and test it, and go through reliability cycles. And then the requirement was to send seven samples to UL, or CSA, or whatever the agency is for evaluation. So, the manufacturer had done their due diligence, and it was the job of UL and CSA just to verify the results of their testing. Well, guess what? Our wonderful manufacturers of today that produce mediocre products will build a set of prototypes and then send samples to these testing agencies to find the problems. And then they'll use the defect reports to fix the problems. Well, again, in the '60s, when I knew UL personnel, they didn't have any attorneys on staff and they had one on retainer. The last time I checked, they had about 15 attorneys on staff because you can't inspect or test quality into a product. So one of the things I look at in every case is the UL listing, or the CSA listing, or the EU listing of the product and see how it was derived.

In the safety testing, we have been part of a number of experiments where we've gotten exemplar products from a retail store and simulated the failure. And this particular outlet is available at one of the more popular hardware store chains. And we set it up and hooked it up to the device that caused the failure in this case. And within two minutes, it immediately started setting itself on fire. So the safety has to be designed and tested into this product. And the judge allowed me, I was representing the defendant, they allowed me to...I'm sorry, that was representing the plaintiff, they allowed me to go to the manufacturing facility in Mexico and watch these things being built. And it was inevitable that these kinds of failures were going to happen. So even though it had a UL label on it, it had a UL sticker, a CSA mark on it, I was there when the UL representative came for his six-month inspection. This company had 2400 products in their product line, and he was there for 35 minutes. So, again, in electrical fires, anything that's been UL or CSA certified should be questioned in your case because this one went on to cause fatality of an entire family.

So what is this forensic business pathology thing? First of all, my definition is that it's the scientific diagnostic methodology that examines the health of a business, utilizing proven tools of process analysis, performance standards, business metrics, and quality management system effectiveness. My training as a quality control engineer, my 10 years with NASA as a quality control engineer, I worked with more than 400 companies that wanted to be qualified to do business with NASA. And I quickly observed and documented that every one of these organizations did, in fact, have a personality. And you could forensically look at what was going on within the business and come up with a pathology and come up with a diagnostic outcome of whether they have the capability to have an acceptable standard of care and whether they had the ability and the knowledge to foreseeably see any potential risk in the products that they use. So, again, just to make this clear, it's a diagnostic workup of the overall health of the business backed by clinical evaluations of each constituent element of the company. Modern quality management techniques focus on process. Everything is a process. Everything can be measured. Everything has a beginning and an end.

And as you look at each process, it becomes part of the clinical evaluation. And then we look at it as a whole system, a holistic system, and see if their business is healthy enough to produce the product or services that they advertise. So, again, the metaphor of a business as being a living, breathing, organization, something you can look at pathologically, I've proven over and over again in my work both as a consultant and as an expert witness. We diagnose the pathological diseases. And in cases where I'm hired as a consultant, we put together a program to define vision, mission, values of the company and then put processes in place that ensure the products or services are acceptable before they're introduced into the stream of commerce. So, again, forensic business pathology is not just a marketing term. It's a strategy for assessing standard of care of a defendant company to measurable standards and scientifically proving or disproving negligence or foreseeable risk. And, again, too many times I've witnessed cases where the attorneys left this definition of standard of care up to a jury or a judge and didn't turn out the way they'd hoped.

So, I've collected in my annals and among the 12 books that I've written some case winning arguments that I've seen work repeatedly. And this statement appears in almost every one of my expert reports. Personal injury and death resulting from product-related incidents are predominantly the result of consumers using unsafe products incorrectly. So there always seems to be a scenario where the plaintiff used the product incorrectly, but the defendant did not anticipate that use, or overlooked it, or didn't test for it, so we had an unsafe product that was used badly. Again, the statement is in almost every one of my expert reports. Product defects are more often the result of processes out of control. So I discussed a moment ago about every piece of a company being a process. Well, if a defect is created in step two of assembling a consumer product and propagates all the way out to where it's finished, tested, delivered, and in the stream of commerce, the company has effectively abdicated their stewardship and accountability. So whether it's a design error, a manufacturing error, it doesn't really matter. If it got into the stream of commerce, I can argue that the stewardship and accountability for that company was unacceptable.

There are, regardless of what you've experienced or heard, proven supply chain management tools. And it can effectively control the safety, quality, and reliability of imported products, regardless of where they came from. I helped Dell Computer in 2000 write their supplier quality manual, their supply chain management system. And so I have some knowledge of how you put together an acceptable supply chain management program. Conversely, I've seen and worked with...well, let's say it's just the largest distributor in the United States on a number of cases, and I discovered their supplier quality manual on their website, and there was nothing at all in it about quality. It was all about warranties and how to deal with defective products. And that particular supplier quality manual has disappeared from their website. And that particular distributor doesn't like me very much. Most of the cases I've worked with them has settled after my preliminary report. And conversely, I was involved in a case a couple of years ago, where I actually went to Shanghai and did an audit of a facility that I was working with, that I was working for the defense. And I've never seen such a buttoned-up operation in all of my career. They had 50,000 employees, and any one of them could stop the production line if they detected a defect. Nothing left that facility that was not working correctly. So this was a case of working for the defense where I proved, not only an acceptable standard of care, but an exemplary standard of care. So it works both ways.

More winning arguments, product safety, the fact that it's UL listed, or CSA, or has an EU stamp, it's just been obfuscated. And if that's your case, that it had a UL listing, I can tear that apart in no time at all. I've gone through 200-page UL listings of products that were designed in 1951 and still in the market. And you can't tell what kind of plastic is acceptable or how many times they've been tested or submitted for approval. So case winning arguments that are based on safety listings, those dogs don't hunt. The competition to sell through large chains and box stores may be politically convenient. But if that's the argument that I had to meet those price points, and I had to meet the delivery schedules, and that's why I've sold potentially dangerous product, that is definitely not a winning argument.

Here are some more case-proven losing arguments that I've seen. "We have little control over the quality and safety of products we import." We could spend an entire webinar on just on that topic, how untrue that is and how it can be proven. "It's not cost-effective for us to have consumers return defective products, so we didn't know that they're failing." I worked with a distribution center locally. And contracts with their suppliers include phraseology such as, "Whenever something is returned to you immediately, put it in a crusher and make sure it's destroyed so that we have no culpability. We don't know what went wrong, if anything. And also, we don't want the product to wind up in a flea market." So if you don't know, you have problems. It's not a winning argument in a court of law that I've experienced anyway. "Technology is changing all the time." Goodness, we have to sell our products and services, so we use what I call the Microsoft effect, where you let the consumer become the beta test site or the actual test site and you release Windows updates everyday to make sure your product is working to specification. So that's a losing argument as well. You must take accountability. And I can't say it any other way. It's ethically and legally as...from the point of view of an expert witness, you can't use that as an excuse for introducing the product into the commerce stream. And, "Our products are safe. They're UL listed." We've covered that three or four times. That just is a losing argument.

A few more. "Our product is not defective. The consumer used it improperly." Well, okay, I have seen a case where a consumer used an electric space heater and put a stack of pillows on top of it. That's not very bright. But at the same time, it should not be possible for those pillows to reach a temperature where they can ignite sitting on top of a space heater. So we proved that not to be true as well. As irresponsible as the consumer was, it still killed their family. And there shouldn't be any use of the space heater that could possibly reach an ignition temperature. This is one of the ones I really loved. "The Consumer Product Safety Commission is the gatekeeper and the watchdog." Once again, you can't inspect quality into anything. And waiting for the Consumer Product Safety Commission to find out that they need to compel the company to issue a recall is way too late. You can't argue that there were no CPSC recalls or warnings on the product. Again, that dog doesn't hunt.

"We're developing new products and we'll solve the current issues in the next revision. And they embark five version of our product. So hang in there. Sorry, the thing blew up, but we're working on it." So, again, I've seen these as case-losing arguments. And, again, another one of my favorites is, "We can't compete because of the government bureaucracy that's placed on our business." Well, again, we can argue that continually and I can argue that either way. But at the same time, I've taught companies how to take regulations and use them as a profit center, meaning that we know we have to meet the following regulations. And not just with products. I've done this in the financial services world as well. Take those requirements and build them into your processes so that when you're audited, you just slide through the audit because you're already doing it. So an argument of government regulations or bureaucracy keeping us from shipping a safe product doesn't work.

Again, this chart is not meant to be read and discussed during this webinar. It's there to show you that our methodologies in forensic business pathology, be it for defense or plaintiff, follows the standard protocol. We do the same processes over and over again. And to date, 15 years later, they've wound up at a 96% success rate. So we use a specific process flow. We don't just run our FBP investigations by the seat of our pants.

Why use this approach? Well, I have some dear friends that are causes and origins experts. And they do incredible work in finding C&Os and determining how a fire started or why a tire blew out. So they serve as their electron microscopes. And they look at the forensic evidence and pick through it. At the same time that they're doing that, in the cases that I work, I'm looking at the company. I'm looking at the defendant company for duty of care and standard of care. I can compare them to international quality standards, industry norms, and compare it to foreseeable risk, which is my 11th book. And it should be a desk reference. It's for you. It's published by lawyers and judges publishing. Apparently, it has a little bit of credibility. But that's what I'm doing while the C&O experts are looking at the trace evidence or the forensic evidence. So that brings us to our first session of questions and answers.

Moderator: Now, we are answering the Q&A session during this time. Please enter the passcode and the Q&A widget to the left of your screen. The passcode is Pathology. Also, enter any questions that you may have for Mr. Taormina into the Q&A widget as well. So we have two questions. Our first one is, have you ever been a lay witness in a case?

Tom: I'm sorry, could you repeat the question?

Moderator: Have you ever been a lay witness in a case?

Tom: I'm not sure what the term lay means. I present myself as an expert witness with four or five specialties.

Moderator: Okay. What factors are important to determine the FBN of an insurance company underwriting department?

Tom: Well, that's a great question. The insurance aspect of all of this has been quite a learning experience for me in dealing with the insurance companies. And I have to tell you that when I submit to them my approach to this is defect avoidance, not them doing defect prevention or defect mitigation studies or questions in a trial. We often get to a point of disconnect. And when we finally do turn around and say, "Mr. Insurance Company, your client did not exhibit an appropriate standard of care, and it was possible for them to produce a defect-free product," it kind of get sideways with the insurance companies because they have their own methodologies as everyone well knows.

Moderator: Okay. Now the question is, any experience in medical devices?

Tom: Absolutely, several cases with medical devices. The requirements for them are so clear. The quality requirements, the testing requirements are some of the best in the world. And it's really quite easy for me to go through all of the requirement...the required steps and prove or disprove standard of care.

Moderator: And our last question is, was it the heater or pillows that were defective or both? Question goes to safe for intended use or safe for intended purpose.

Tom: Pillows. I'm sorry, I need a clarification of the question.

Moderator: Okay, we'll ask that again next Q&A. Thank you. Now we're ready to go back into your presentation.

Tom: Okay. And please, folks, put them in context. I've dealt with an awful lot of different products and services, but I need to know the context when you ask the question. I'd be happy to give it my best shot. I will also tell you I don't know if I don't know, which may be unusual for an expert witness. So let's talk about FBP for the defense, first of all. And, again, if I'm working for a defendant, I'm going to go to their facility, and I'm going to do a quality audit to see if they exhibited what I call an appropriate standard of care. And we talked about deriving that standard of care either from industry standards or our own definition that is defensible. So that is the chart we use for that. Also, regardless of what the jurisdictional issues, I always query the defense attorney, "Which of these are the defendants that you are representing?" As you know, oftentimes we will not go after the wholesaler because they're just as an [inaudible 00:36:12.024], or the manufacturer can actually be determined because it was one of six Chinese companies. So, again, regardless of the jurisdictional issues, I'd like to clarify up front who are the defendants, who are we going to be looking at.

The next part of that is, are we going to look at the entire chain of custody? Are we looking for strict liability, joint and several? Vicarious liability is one of my favorites because when I put in the point of proving vicarious liability, I've got so much quality training behind me that that term just becomes non-sequitur. There is no such thing as you dancing around your own liability. And of course, are you basing the case on a breach of warranty? So, in assessing a defense case, the first thing I want to state is that the successful defense attorney is the expert in selecting winnable cases. I make a promise to every attorney I work with, I will not attempt to think like an attorney, and please don't attempt to think like an expert witness, and we'll get along just fine because I've seen it that there's no science that I have that is as powerful as the instinct of a skilled defense attorney in assessing whether or not to take a case and how to proceed with it. So I will be your collaborator, but I will never attempt to tell you whether you should or should not take a case. And we can enhance the chances of success if we go back to the previous slide about who the defendant is or are and not what happened. Once I have attorneys looking at it as a forensic business pathology approach, where we look at the standard of care as a customer, not the blown-out tire, things for the defense take on a different complexion and you'd wind up using a lot less expert witnesses.

So, again, in the past, I've not only wound up paying for myself in what I provided in getting a case settled right after my depo, also it's avoiding to have more expert witnesses to deal with minutiae that never is really part of the case. So assuming the company is a manufacturing or service company, I have a different strategy for importers, wholesalers, distributors, assuming it's financially viable to defend the client in their jurisdiction. And I would sit down with you and we talk about the FBP approach. Did some action of the defendant precipitate the litigation? Are they culpable in some form? The vast majority of manufacturing and service companies are dysfunctional. Of the 700 companies that I've worked with, there are none of them that I want to work for. Again, we can talk about that over coffee, but that's a pretty sad epitaph of what's going on with manufacturing company. So, again, it's a matter of degree of standard of care.

Again, all defendants are organisms. Again, this is not meant to be something that you can read and dissect. It just is that the companies, over their lifecycle, have opportunities to do things right and wrong and build the business infrastructure. But even in the simplest of companies, that infrastructure can look this complex. Who is the manufacturer? Are they industry leaders? Do they have impeccable reputation? Do they have a brand name, a history, or are they a commodity producer? Are they just one of many that builds the same product, or are they truly a back alley operation? In my trip to China, I found out there's just two kinds, they're exemplary and they're a back alley, and there's very little in between. What's their history? Have they been in prior lawsuits? Do they have product recalls? What's the peer standing in their industry? That can be found through professional organizations. What is their product or service? Is that a very high profile and very risky product? Do they make dynamite or C4 explosives? Or do they make hula hoops? Is it potentially dangerous or hazardous? Any electrical consumer product is potentially dangerous or hazardous. That's a given. Is the product typically not inherently dangerous unless used badly? And is it a consumer product or is it a niche product? One of my cases was a pulley made for an oil derrick. So it's a niche product and you don't have a lot of information in the industry on whether their pulley was good or bad.

Is it new or high technology? Those of you who have been involved with high tech cases are aware of where the problem is in defending a high tech case because the technology is unproven or it's difficult to assess. And are there secondary or foreseeable uses to the product that are what led to this case? Did we take a product that was meant for one thing and use it for something else and it failed and you're not trying to defend that company? What is the plaintiff's culpability? Again, one of the recommendations I make defense attorneys, was it gross misuse? Was it a marginal product used badly? Was it a foreseeable accident? Is it an innocent victim? Is the plaintiff truly innocent and just wound up in the wrong place at the wrong time? Is the plaintiff truthful? I've had too many of those cases where they were looking to make an easy score.

So I have some essential defendant questions that I've put together over the years. Did the defendant know their duty of care? Did they define it? Do they exercise an appropriate standard of care in building a product or providing a service? Do they proactively assess foreseeable risk? And, again, back to the insurance company question, foreseeable risk may not be the insurance company's definition. My definition is, have they proactively looked at their product or service for how it can be badly used. In the consulting world, I do stupid proofing meetings where we do nothing else but try and figure out ways that customers have used their products badly. Are they culpable? Are the defendants culpable just on the face of the evidence? Is it really just staring at you in the face and saying, "Look, defendant, I'm going to defend you, but it's really obvious. I'm just on the face of the evidence that you got a problem"?

A few more essential questions I've learned over the years, is the defendant bound by any national, international regulatory standards? They're required to have ongoing compliance audits. These are essential in establishing a standard of care. Do they have appropriate quality management systems and data to prove process effectiveness? The international standard ISO 9001 has been used in many of my cases as a benchmark for appropriate quality management. It's been around since 1997. And it's accepted as a minimal level of performance for a manufacturing company. Again, anticipating the plaintiff for the defense, the final essential question is that of quality management, and it's the most overlooked. Does the company have processes in place that have checks and balances and typically will not allow a defective product to reach the consumer? So, FBP for the plaintiff will also help you form a more unimpeachable defense. Summary for the defense. Will the defendant be found harmless in a detailed forensic business pathology audit? In other words, if you send me to that company, what's the chances of me coming away giving them a clean bill of health or providing you with a list of egregious problems? I will help you define duty of care if it doesn't exist in that industry. I'll help you establish and document the standard of care and the foreseeable risk due diligence that they should have done and whatever warning compliance issues that were typical for that industry. So, defense, questions?

Moderator: Okay. We have one question. It's clarity from one of the previous questions. And it reads, "In the example about the space heater and pillows on a catching fire, was it the heater or pillows that were defective? Was the litigation defense the product being safe for intended purpose or safe for intended use?"

Tom: Excellent question. Both of those questions obviously came up in the litigation. The product was not safe for its intended use because it was designed to have a heating element in it that could reach combustion temperature if the company that built it hadn't taken every precaution to make sure that a consumer couldn't use it badly. One example, of course, is that all space heaters now have tilt switches where if it's knocked over, front or back, the power is disconnected so that it doesn't cause a fire. But if you can touch one of the surfaces or have a combustible anything come in contact with it, in this particular case, the manufacturer was found liable.

Moderator: Okay, thank you. We can now move back into your presentation.

Tom: Okay. Let's talk about the plaintiff. Again, we have a process map we use for the plaintiff. It's a difficult job for most of my colleagues who'd not put themselves in the position of being an advocate. So right upfront, I understand the difference between being an objective plaintiff's expert witness or consultant and being an advocate, regardless of what the evidence is. So it's your job to be the most effective advocate. And that's what you do for a living. But, again, I provide a methodology that, if adopted early, can help you build a winning strategy without having to hire 23 more experts to work on the forensics of the case.

So, again, who is the plaintiff? Are they an innocent victim or a bystander? Are they uninformed consumer? Are they someone who did use a marginal product badly? Or are they an opportunist? I worked a case where a fellow had a motorcycle stop on him. He was throwing off. They replaced his hips and all kinds of stuff. And I found that that particular motorcycle had recall history and presented a really good case for the plaintiff. And as soon as the defense got to open their mouth, they showed a video of him after the hip replacement riding another motorcycle and falling off of it because he weighed 420 pounds. So being the expert for the plaintiff, sometimes, it has its issues if the plaintiff is an opportunist. I'm sure all of you have had that experience. Again, I will categorically state that a successful plaintiff's attorney is the expert in selecting a winnable case. No science or anything that I can do is worthy of the instincts of a skilled plaintiff's attorney. And the decision to represent a plaintiff can be enhanced early on with the assessment of who the defendant is, not what happens. So, again, when I'm retained, the first thing I do is look at the defendant company. And if, in fact, the defendant company is so buttoned up and so free from liability, you may have to make the choice not to take the case at all at the very beginning, which would save a lot of time and money. So, taking the case, and again, this is innate to most of you, but as an expert observer, one of the biggest problems I see with the plaintiff attorneys is, can you work and communicate with the plaintiff? Are they just victims that you can't talk to? Are they reliable and truthful? Are they giving you the whole story? Do the apparent facts of the case make any sense? And is it viable to gamble your time and reputation on whatever it is they're telling you without knowing something about the defendant?

So the strategy approach for FBP. Right or wrong, some action of the plaintiff precipitated the litigation. I just have to make that assumption. There's something they did somewhere along the line that caused the problem. The vast majority of the cases that I've worked, the defendant companies also have innate liability. So it's between the devil and the deep blue sea as to where the facts of the case lie. I've never come across a defendant company that was just squeaky clean when I was representing the plaintiff. In our initial phone call, I will tell you right up front whether I can help you or not. I don't waste your time or mine. I'm too old for that. Again, we have a process map for the plaintiff approach to FBP in a case. And the strategy goes, first of all, examining the content of the complaint, what does it say, determining who the defendants are from your point of view as a plaintiff attorney, and then doing what I call a forensic snapshot. It doesn't take me long after we've agreed to work together to make a phone call to the plaintiff attorney and say, "And you know what, I'd make a phone call instead of writing it down. But what I will let you know immediately is I've found stuff already on the defendant that you're just going to love or you're not going to love at all."

The internet is a wealth of information. Most company websites are written by marketing departments. And they put in just all kinds of wonderful claims on their product or service, and I can just tear holes in them immediately and find out where they're actually misleading the public. So it doesn't take long for me to give a plaintiff attorney a very preliminary assessment of where we are in the case. Again, if there's no duty of care defined, we go to the dictionary, and it's a requirement that a person or company act toward others in the public with watchfulness, attention, caution, and prudence that a reasonable person in this circumstance would. And again, I can turn that into science because that's what quality management is. Are there regulatory requirements? Are there industry standards? What is the ordinary use of the product? Is there a foreseeable risk that the defendant should have been able to figure out ahead of time? And duty of care is a science. It's not an opinion. If we let a jury decide it, we're going to lose every time.

So, the first thing I'm looking for is the established standard degree of care for the plaintiff, the degree of care a reasonable person/organization would take to prevent injury to another. That's standard of care. Are they adhering to the statutory and regulatory requirements? Is there a comparison to industry standards and conventions that we can use? Does the defendant have a viable quality management system? And the best approach for plaintiff is proving that the defendant company did or did not follow their own procedures and processes. And again, that's fundamental quality management auditing.

Some definitions, again, the same chart, the same definitions apply to plaintiff or defense. We do a matrix like this in every plaintiff case. And the thing that's unusual is that in my book, "Foreseeable Risk," it's a totally different approach than actuarial assessment of risk. You can quantify foreseeable risk. There are processes and methods that are available in the quality and reliability world to scientifically assess and prove foreseeable risk. It's a science. It's not a guess. It's not something I opine on. Foreseeable risk can be preliminarily determined through the complaint and response information that you provide me, any discovery you have to date, and research for what I call FBP clues. And again, in the wording, in your plaintiff's wording and in your request for discovery, I can give you questions to ask that will determine this early on in the case. And can your case, the plaintiff case be proven by quality management system audits, again, through discovery and through court sanction factory visits? The ones that I've been on, the defendant didn't like it very much. And I felt like I was continually being sought out as someone to lynch at the end of the day. But I don't mind going through them because if the judge will let me go to the facility, you're going to have an unimpeachable case one way or another.

This chart goes back to my training at NASA. Fourteen years I was there. I make a comparison of foreseeable risks based on what Project Apollo did. The Apollo I fire and the early stages of a business are very similar. The Apollo I fire is what we call an assumed risk. There were so many new processes, so many new systems that we put together in a very short period of time that we didn't know the foreseeable risks. They were just assumed. And the Apollo 13 disaster occurred at the peak of the program, the peak of our knowledge. But it was a foreseeable risk. The malfunction aboard the Apollo 13 was a person performing a task incorrectly. So as the maturity of the companies that you are working with as a plaintiff, if they are in that downside of the maturity curve, chances are their attention to foreseeable risk will typically leave a lot to be desired.

So, summary of the plaintiff strategy. The forensic snapshot, look right up front to see where you are and keep you from retaining 16 more forensic experts to paw through the remains of whatever it is. My definition of duty of care, if it exists in the industry, I'll provide it to you upfront. If not, we will strategize in how to define it. We will then establish a standard of care. And you can employ the minimum number of experts to determine whatever your strategy. Is it a proximate cause, joint and several liability? Is it implied warranty issues or is it valuation issues? You can then pick up among those experts the minimum that you need to conserve your budget. So, again, we're down to the time for a Q&A for the plaintiff.

Moderator: Thank you. Once again, please enter the passcode in the Q&A widget to the left of your screen. The passcode is Pathology. You can continue to send your questions during the rest of the presentation. And now, you can continue your presentation.

Tom: Thank you. I'm sorry, we don't have more time. That's been a lot. I tend to give you more information than I can deliver. But at least I want to give you topics that I have worked on, electrical outlet fires, check valves in an oxygen concentrator, electrocution by a battery charger, incorrect drug being delivered, an oil well blowout, golf cart injury. So these cases that I would love to talk to you about, I'll give you case studies that I have worked on. Some of them I can't talk about because a lot of them are...as you know, when they're settled out of court, everything is sealed. And even I don't know what happens, and that drives me nuts. There should be something in there for the expert to find out how well we did or didn't do.

So, again, for savvy litigators, this forensic business pathology approach is a strategy for assessing standard of care for the defendant company to measurable standards and scientifically proving or disproving negligence. Assessing business processes with forensic precision, the wellness of the company can become irrefutable diagnostics of their legal culpability. And the FBP is equally applicable for plaintiff and defense. Some winning strategies that attorneys have used in the past is to perform your due diligence before taking a case. That's not common sense. It means that I may be able to add to that by researching the defendant company. And the sooner you bring us in, the less experts you may need. And then this business of defining duty of care early on, and creating the definition if it doesn't exist, and establish appropriate or inappropriate standard of care. Also, approach each defendant company as a living organism with a unique pathology. You can't generalize about any company, even if it's an old line company.

So that's it. I'm at the end of my allotted time. More information can be found through TASA or on my website. And I look forward to any other questions and answers we can do in this brief time.

Moderator: Thank you. I want to take this opportunity to thank everyone for attending, and most especially Mr. Taormina for his time and effort in creating this presentation. If you would like to speak with Mr. Taormina, or if you would like to speak with a TASA representative regarding an expert witness for a case that you are working on, please contact TASA, 1-800-523-2319. One of my colleagues will be following up with you regarding your feedback on today's presentation. This concludes our program for today.

Previous Article Patent Litigation from an Expert's Point of View
Next Article Whiplash: Hyperflexion-Extension Injury
Tasa ID1648

Documents to download

Theme picker

  • Let Us Find Your Expert

  • Note: This form is to be completed by legal and insurance professionals ONLY. If you are a party in a case that requires an expert witness, please have your attorney contact TASA at 800-523-2319.

Search Experts

TASA provides a variety of quality, independent experts who meet your case criteria. Search our extensive list of experts now.

Search Experts