• September 30, 2014

Ryobi 10 inchUpdate (September 30, 2014): Any experience with the table saw pictured at left or one like it? Do you think that experience would make you a better juror or a worse one in a case against a saw manufacturer based on a user’s serious table saw injury?

I suppose that would depend on whether you loved the product or hated the product, or whether you have little recollection about your experience and no opinion one way or the other about the product and about its safety (or lack of safety)? Whether you or your employer sells the product? Whether you or someone close to you was injured while using the product?

What if you found the yellow/gray-tinted blade guard shown above difficult to work with? When you used it, you could not really tell precisely where the wood was being cut. (Not only is it tinted. It is lined on the inside with saw dust after every cut.) What if you disassembled the safety device soon after purchase and used the saw with the safety device disabled for years, exercising extreme caution because the machine scared the bejeezus out of you and you are uncoordinated and accident-prone? (This paragraph, by the way, is a description of my experience of a similar product 20 or so years ago, for what it’s worth.)

At one point in this line of questioning do you think you would be excused from serving on the jury of this trial, scheduled to begin on October 14 in Duluth?

We do not know who will serve on the jury of this case if it really goes to trial in mid-October in Duluth, as scheduled, but we know it will be a panel of Minnesotans called to duty who will be called upon to set aside all of their previous knowledge, information, predispositions, and biases as best they can to decide the case on the evidence at trial. They will listen to the testimony and the evidence and they will decide whether defendants are liable to the plaintiff under the law or not and, if so, how much the plaintiff should recover as damages for his injury. (Or the case will settle before they decide.) (Don’t bet on it.)

(Here is the current state of the disputed “Joint Statement of the Case,” which lays the case out. Note the subtle analysis of “assumption of risk,” one of the many legal terms that is known by many and understood by none.)

Update (May 27, 2014): All of the lawyers agreed that Minneapolis would be preferable for the jury trial set to go forward in Duluth in October but U.S. District Court Judge Patrick J. Schiltz (D. Minn.) will stick with Duluth, where the case was assigned. (An aside: the defendant made the jury trial demand in this case. Conventional wisdom is for plaintiffs to want a jury and for defendants to want the judge to decide the case. I, for one, am not a big believer in “conventional wisdom.” The case still might settle, of course, but we might get to see whether bucking conventional wisdom pays off for the defendants in this case.)

Original post (April 15, 2014): (under subject line: Thull v. Techtronic et al.: A Product Liability Challenge Headed for Trial): It’s tax day. If we lived in an extreme “dog eat dog” libertarian society, presumably we would be paying far lower taxes. Instead, the poor, the vulnerable, and the exploited would be taxed directly, in a sense, by the rich and the powerful. To some extent, taxation in our society is exactly what some of its harshest critics say, wealth redistribution. Like a lot of civil litigation, actually.

Consider two situations:

1. A table saw, which presents an open and obvious risk of very serious injury, is sold with a safety device designed to prevent users from injury. A user disables the safety device, suffers serious injury, and then sues the table saw manufacturer for selling the “defective” product.

2. A table saw is sold with a supposed safety device that is difficult to use, that cannot be used in all circumstances, that compromises users’ ability to use the table saw by blocking sight of the blade, and, finally, commercially available alternative designs exist that sharply reduce or perhaps even eliminate the risk of injury (for example, SawStop).

Do your sympathies lie with the saw company in the first instance and with the injured person in the second instance?

Dyed in the wool free-market libertarians undoubtedly conclude that the user should suffer the consequences of his purchase and stop blaming other people for his own poor judgment. (Find your arguments here.)

Corporate-bashing bleeding hearts surely think that the saw manufacturers’ profits are sticky with the gore of its customer-victims and that the companies should dig into their deep pockets to help salvage whatever is left of the lives that the company badly damaged. (Find your arguments here.)

The lawyers and the court in the case of Thull v. Techtronic will try to smoke out and remove both the libertarians and liberals from the jury of this case scheduled to go to trial before U.S. District Court Judge Patrick J. Schiltz (D. Minn.) in October in Duluth (assuming they cannot find some common ground to settle in the mean time).

They will have a great deal of work to do before trial begins. Minnesota civil litigators should find the linked pretrial order of Judge Schiltz of some interest. Judges have their own variations on this standard trial document. I think that the thing I like most about Judge Schiltz’s is his limitation to 5 motions in limine per side.

I have had the pleasure of working in a large law firm where lawyers sometimes carpet bomb their adversaries with the shock and awe of excessive motions in limine. And I have had the misfortune of being on the other side of these salvos. When used to excess (by which I mean, without limit), lawyers seem to go overboard and, when they do, the motions generally do not represent a forward step toward fairness or justice (and they are a burden, of course, on the court).

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