We lawyers may properly be blamed for lots of things, but huge liability verdicts that impact product design are not one of them. Those verdicts ultimately are rendered by 12 ordinary and well-intentioned citizens. Company lawyers must consider those verdicts and the risks they pose to the Company. Larger verdicts typically occur where there is evidence of a practical safer alternative design. Most of us hate them, but consider the magazine disconnect. While we may firmly believe the ability to fire that single remaining round is more important than the added safety of a disconnect, many if not most lay juries would disagree. Imagine this cross-examination of the Chief Product Design Engineer of a defendant gun manufacturer and how it would be viewed by 12 ordinary jurors.
Lawyer: Would you agree that a substantial percentage of accidental discharge injuries happen when the user ejects the magazine and then does not know, or forgets, there is still a bullet in the chamber that will fire if the trigger is pressed.
Witness: I don’t know that I would agree with “substantial” but it does happen with some frequency.
Lawyer: Now this magazine disconnect thing we’ve been discussing can prevent that can’t it? I mean that is why many of these weapons have it?
Witness: That is true.
Lawyer: How much would it cost to include that disconnect in your $800 weapon?
Witness: Considering the research and development costs, I would say around $20 per firearm.
Lawyer: So if I take a weapon to a gunsmith to replace the disconnect, are you telling me your Company will charge $20 for the part? Do I need to show you the retail price list I got in discovery?
Witness: No, I don’t need to see the list. We charge $5.00 for the part.
Lawyer: So it’s a five dollar part. And you sell the weapon for $800?
Witness: Yes, that is the MSRP but the firearm typically sells for less.
( Lawyer looks at jury, turns as if he is finished, then does a Columbo )
Lawyer: Just one more thing. Do you agree that weapons should be regularly cleaned and preferably after each use?
Witness: I do.
Lawyer: Now on an automatic weapon like this gun you sell for $800, do you have to take it apart to clean it?
Witness: You do.
Lawyer: And to take it apart, don’t you have to pull the trigger?
Witness: You do but the firearm should always be pointed…
Lawyer: No further questions, your Honor.
Remember that the lawyer above is doing his job and capably representing his client. The Company lawyer will be able to partially rehabilitate the witness on redirect, but you still can imagine the impact on the average juror. That is especially so when the Judge instructs the jury that they must find the Company liable if they believe from the evidence that a safer alternative design was available and practical.
I apologize for the length of this post but thought some of you might find it interesting. Note the use by the lawyer of “weapon” rather than “firearm” and “automatic” rather than “semi-automatic”.