Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

Thompson Hine is a 99-year old law firm with offices in eight different cities.  Its products liability lawyers work do work in the aerospace, automotive, chemical, electrical, mechanical, medical device and pharmaceutical areas.

And they are concerned  about the implications of Section 212 of the Consumer Product Safety Improvement Act of 2008, which requires the Consumer Product Safety Commission (CPSC) to implement a publicly accessible, searchable database of consumer product incident reports. 

The firm reports that:

[o]n September 10, the CPSC issued its "Report to Congress Pursuant to Section 212 of the Consumer Product Safety Improvement Act of 2008 - Implementation of a Searchable Consumer Product Safety Incident Database," which outlines the CPSC's planned rollout of this database. As described below, this database has the potential to have far-reaching business and legal implications for how manufacturers, distributors and retailers of consumer products report and respond to consumer complaints.

The concerns?  First, the CPSC's control of the database "creates the potential for an increased number of, and potentially less efficient, investigations and recalls implemented by the CPSC."

Second, there are concerns on how companies should monitor or use the new site.

Third, "the database will serve as an easily accessible tool for plaintiffs in future litigation to locate potential evidence of "alleged other similar incidents" or evidence to support a punitive damages claim. "

Fourth, "the database will undoubtedly serve as a new resource for an always creative plaintiffs' bar searching for potential lawsuits. The searchable capacities of the database will enable plaintiffs' attorneys to search for potential personal injury or consumer claims, as well as to identify potential class actions or mass torts."

Thompson Hine reports that the target deadline for the new public database is March 11, 2011.

Read the entire paper here.

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What do you do when a party to a lawsuit intentionally refuses to follow the rules?  One judge in Washington State knew what to do: the judge struck the defendant's answer, entered judgment for $8,000,000, and awarded attorneys' fees.  Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details.  The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña's request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

[Footnotes omitted.]

Here are some highlights from the opinion of the Washington Supreme Court:

A corporation must search all of its departments, not just its legal department, when a party requests information about other claims during discovery. Here Hyundai searched only its legal department. Hyundai's counsel told the trial court that in response to request for production 20, Hyundai's search "was limited to the records of the Hyundai legal department" and that "no effort was made to search beyond the legal department, as this would have taken an extensive computer search." CP at 5319. As the trial court correctly found, "[t]here is no legal basis for limiting a search for documents in response to a discovery request to those documents available in the corporate legal department. ... Hyundai had the obligation to diligently respond to Magaña's discovery requests about other similar incidents. It failed to do so by using its legal department as a shield. The trial court also found "Hyundai had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff's requests. Hyundai is a sophisticated multinational corporation, experienced in litigation." Id. Hyundai willfully and deliberately failed to comply with Magaña's discovery requests since Magaña's initial requests in 2000 and continued to do so.

...

Magaña's ability to prepare for trial was substantially prejudiced because of Hyundai's egregious actions during discovery. The Court of Appeals substituted its own discretion for the trial court's, which is inconsistent with the abuse of discretion standard. The record supports the findings of the trial court that Magaña was prejudiced in preparing for trial.

...

The record fully supports the trial court's other conclusions: there was no agreement between the parties to limit discovery,Hyundai's definition of "claims" was too narrow because Magaña's discovery request was broad, and the seats in the Hyundai Elantra were similar to the seats in the Hyundai Accent. These findings of fact also support the conclusion Hyundai willfully violated the discovery rules.

[Footnotes omitted.]

The case is Magana v. Hyundia Motor America, No.80922-4.(Wash. Nov. 25, 2009).  Read the opinion here.  Regular readers will recall that a Minnesota trial judge recently awarded millions of dollars in sanctions against a defendant railroad company and a Vermont trial judge recently awarded sanctions against a lawyer for the Roman Catholic Diocese when its lawyer violated a motion in limine.

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