Day One – Tuesday, June 26, 2012
7:30 Business Development Master Class
9:00 Main Conference Registration and Coffee Served
9:30 Co-Chairs' Welcoming Remarks
Lisa Gilford
Alston & Bird LLP
Larry D. Grayson
Hartline Dacus Barger Dreyer LLP
9:35 In-House for Manufacturers and Suppliers Speak Out on Managing Outside Counsel, Reducing Costs, and Formulating Early Defense Strategy
Panel 1 : 9:35 – 10:45 (coffee break 10:45-10:50)
Thomas T. Johnson
Legal Counsel, Kawasaki
Jacob W. Crawford
Huie, Fernambucq & Stewart LLP
(Former National Litigation Counsel, Kia Motors America, Inc.)
Steve Taub
Assistant General Counsel, U-Haul International Legal Department
Scott Cordes
Chief Legal Counsel, Gulf States Toyota
Scott Richardson
Senior Counsel – Litigation, Bridgestone Americas Holding, Inc.
Don A. Schiemann
General Counsel, TK Holdings Inc.
Donald R. Parshall, Jr.
Senior Counsel, Legal Department, Product and Business Litigation Group, Nissan North America
Yves St-Arnaud
Director Legal Services, Bombardier Recreational Products Inc.
Lawrence Buonomo
Global Process Leader & Practice Area Manager-Litigation, General Motors
Panel 2 : 10:50 – 11:55
Steven L. Grey
Chief Counsel – Product Legal, Isuzu North America Corporation
Thomas N. Vanderford, Jr.
Associate General Counsel; Executive Director, Litigation, Hyundai Motor America
Ruth Anderson Gates
Senior Counsel, Nissan North America, Inc.
Alan L. DeGraw
Senior Counsel – Product Litigation, Chrysler Group LLC
Angelyn Guanajuato
Assistant General Counsel, U-Haul International, Inc.
James G. Derian
Litigation Attorney, Delphi Automotive Systems
David Peim
Senior Corporate Counsel, Honda North America
Kathleen M. Cindric
Litigation Counsel, Cooper Tire & Rubber Company
Moderator Panel 1 & 2
Mark C. Walker,
Shareholder, Cox Smith
Expertise and Coordination with Outside Counsel
- Managing defense counsel efficiently and effectively
- Coordinating counsel for pattern litigation
Managing Legal Costs, Including Outside Counsel Fees
- Managing outside counsel through realistic and accurate budgets
- What alternative billing arrangements are out there and what are the success stories?
- Managing the cost of expert witness retention and expense of obtaining the testimony required by Daubert
- Budgeting overall expense in taking a case through trial yet keeping the case resolvable level without the need for trial
- Frivolous lawsuits when injury results from the accident itself (not a defect): avoiding burden on legal resources
Case Evaluation
- Determining which case should go to trial/should settle
- Controlling future litigation: identifying trends to ward off future lawsuits; knowing when to resolve a case for economic reasons and when to pay significantly more to defend a suit
11:55 The Latest Developments in the Defense of Typical Defect Theories: Roofs, Seat Belts, Air Bags, Tires, and Electronic Stability Control (ESC)
Basil J. Musnuff
Thacker Martinsek LPA
Brian J. Baggot
Rumberger Kirk & Caldwell
Joseph S. Kiefer
Snell & Wilmer LLP
Thomas P. Branigan
Bowman and Brooke LLP
Seat Belt
- Examining the typical design defect theories asserted in seat belt claims and restraint cases
- Evaluating the performance of seat belts and protection of the occupant
- Assessing buckle defect theories: inertial, inadvertent, and unintended release issues
- Understanding seat belt geometry defect theories and occupant excursion
- Examining alternative causation theories: the plaintiff’s fault in undermining seat belt effectiveness
- Interpreting physical evidence on the seat belt to determine use and occupant kinematics
Roof Crush
- Examining typical defect theories asserted in roof cases
- The causation defense: Malibu / CRIS and the diving mechanism of neck injury
- Admissibility of Malibu / CRIS and roof litigation testing
- Roof intrusion velocity: a plaintiff theory to overcome –Malibu / CRIS
- Overcoming the argument the roof lacked sufficient strength to support the vehicle
- Analyzing the different tests required by the NHTSA and whether there should be stricter standards of compliance
- Determining whether NHTSA should require backup cameras as an additional safety standard
- The 2009 revision to FMVSS Rule 216: roof strength standards and revised attempt to correlate roof intrusion and neck injury
Side Curtain Air Bags
- 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
- 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 profi le 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
- 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
1:10 Networking Lunch for Speakers and Delegates
2:10 The Re-Shaped Landscape on the Preemption Defense, Personal Jurisdiction, and the Stream of Commerce Theory for Manufacturers
David M. Rice
Carroll, Burdick & McDonough LLP
Colin P. Smith
Holland & Knight LLP
Dennis P. Ziemba
Eckert Seamans Cherin & Mellott, LLC
Preemption
- What has been the impact of Williamson v. Mazda on the preemption defense in automotive cases?
- Has Geier been limited to its facts, or is the preemption defense still alive?
- Examining post Williamson decisions going both ways
- Interpreting the Supreme Court’s remand to the South Carolina Supreme Court’s decision in Priester to reconsider its FMVSS 205 preemption ruling involving the decision to install advanced glazing or laminated glass instead of tempered glass
- How have or might the Supreme Court’s other preemption decisions in 2011 (Bruesewitz, Pliva) affect automotive products liability cases?
Personal Jurisdiction
- Interpreting J. McInytre Machinery v. Nicastro and how it changed the landscape with respect to assessing the minimum contacts required for specific personal jurisdiction, i.e., where the claim arises from the defendant’s contacts with the forum?
- To what extent does Goodyear Dunlop Tires v. Brown limit products claims against foreign manufacturers that do not arise from the defendant’s contacts with the forum?"
- Determining the unanswered questions after McIntyre and Goodyear Dunlop: what about the contacts not addressed in the opinions?
- Assessing the sufficiency of a foreign manufacturer’s alleged contacts with the forum
- Examining the role of stream of commerce
- Determining whether compliance with U.S. federal safety standards is enough
3:10 Sudden Unintended Acceleration (SUA) Claims: Examining the Current Litigation Landscape
Lisa Gilford
Alston & Bird LLP
Robert M. Cook
Goldberg Segalla LLP
- The latest on cases claiming that faulty gas pedals cause sudden acceleration; electronic problems cause unintended acceleration
- Understanding peddle confusion cases and driver error cases and assessing its impact on trial strategy
- Examining electromagnetic interference issues, electronic throttle control designs, and the possibility of glitches in the system
- Overcoming the difficulty of diagnosing SUA
- Achieving compliance with NHTSA regulation
- The latest on foreign plaintiff s’ attempts to bring SUA claims in U.S. courts
4:00 Afternoon Break
4:05 Cell Phones, Smart Phones, Navigation/Other Electronic Devices and Beyond: How Defense Counsel Can Use the Distracted Driver Defense as a Shield in Products Cases
Larry D. Grayson
Hartline Dacus Barger Dreyer LLP
Peter M. Durney
Cornell & Gollub
Hugh J. Bode
Reminger Co., L.P.A.
- Determining whether integrating technology in cars is an advancement in science or an increase in the risk of distraction
- Dealing with the issue of distraction with the emergence of interactive systems in vehicles
- Texting, using smart phones? do they appreciably increase the risk of the crash?
- Using distracted driving as a defense strategy and evaluating its strength evidenced by city/state statutes prohibiting texting while driving
- Assessing the practical issues in determining whether the facts of your case are conducive to using distracted driving as a shield
5:05 Effectively Mediating an Automotive Case
Steven L. Grey
Chief Counsel – Product Legal, Isuzu North America Corporation
Joseph Epstein
Conflict Resolution Services, Inc.
- When should you use early dispute resolution and what constitutes “early”?
- After suit is filed, when should you mediate?
- What are the pros and cons of opening sessions?
- What role should outside counsel and in-house counsel take in mediations?
- Determining whether the mediator can be your empathic ambassador
- Identifying factors to persuade the Mediator
- Educate on Liability
- Allow him/her to be surrogate listener
- Build trust
- Be proactive
- How do you appeal to the catastrophically injured & survivors of alleged wrongful death?
- Bear Witness
- Empathic Listening
- Honesty
- Hope
- Fear
6:00 Conference Adjourns
Day Two Wednesday, June 27, 2012
7:30 Continental Breakfast
8:00 View From the Bench: A Unique Opportunity to Hear How Judges Interpret Evidence/Arguments in the Automotive Context
The Honorable C. Michael Hill
United States District Court for the Western District of Louisiana
The Honorable Gregory L. Frost
United States District Court for the Southern District of Ohio
The Honorable F.A. Gossett, III
United States District Court for the District of Nebraska
The Honorable Juan Ramirez, Jr.
Florida District Court of Appeal, Third District
The Honorable Allan L. Tereshko
Philadelphia Court of Common Pleas
Honorable Keith Starrett
United States District Court for the Southern District of Mississippi
Moderator
Anthony J. Monaco
Swanson, Martin & Bell, LLP
9:30 Emerging Issues on Vehicle Electronic Reporting Systems: Using EDR, Vehicle Telematics, Diagnostic Module, and Geolocation Tracking Data in Your Defense
Patrick G. Seyferth
Bush Seyferth & Paige PLLC
Rafe Taylor
Johnson, Trent, West & Taylor, LLP
James J. Yukevich
Yukevich Calfo & Cavanaugh
- How vehicle electronic reporting systems capture data, and what information can be useful to counsel and experts
- Overview of the current law governing vehicle event information captured by electronic reporting system
- Understanding the evolution of capturing electronic reporting system data and the mandates by the NHTSA
- Privacy considerations regarding information captured by vehicle reporting systems
- Knowing when the data is available
- Determining whether the cost of obtaining the data (and paying an accident reconstructionist) is justified by the facts of a case
- Successfully preserving, accessing, and analyzing vehicle event data for use in your case
- Discoverability of electronic vehicle event data
- Teaching the jury how vehicle electronic reporting systems work
- Responding to a plaintiff ’s challenge to the use of vehicle reporting system data in court
- Combating Plaintiff ’s strategy of cutting corners by not offering a detailed explanation of electronic reporting systems
- Analyzing the impact of electronic reporting systems on causation, and using it to prove/disprove Plaintiff ’s argument
- Defeating Plaintiff ’s argument that the electronic reporting system data determines liability without taking other factors into consideration
10:30 Coffee Break
10:40 Evidence Preservation/Spoliation and Discovery/E-Discovery: Ensuring Neither Overwhelms the Defense’s Case on the Merits
Mark D. Jicka
Watkins & Eager, PLLC
Lisa Moran McMurdo
Moran Reeves & Conn PC
Evidence Preservation/Spoliation
- Reconstructing evidence and schematics of vehicle impact
- Spoliation: what are the courts doing and what abuses are still being experienced?
- Overcoming the issue when the vehicle is completely destroyed and evidence is lost
- Preserving evidence, especially if the vehicle was involved in a catastrophic accident or fire
- Using photographs and medical records as evidence
- How to handle insufficient photographing/documenting/ retention of evidence by police: can the playing field ever be leveled?
- The vehicle at issue: securing/getting early access to it and efficiently and cost-effectively preserving, inspecting, and photographing it (mapping chain of custody through every step): How far do you go?
- 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
- How to prevent cases from being driven by the cost of discovery
- reducing the overwhelming cost and burdens of overly broad, voluminous discovery requests: coordinating consistent responses against a well-connected plaintiff s’ bars
- oftening the economic blow of retaining, collecting, producing e-documents
- electronic storage of information: striking a balance between plaintiffs’ need for information and the burdens created by retrieval and processing
- factoring in a manufacturer’s technology, strategic priorities, and financial resources when formulating discovery plans
- identifying the appropriate scope of information that must be produced
- creating cost effective solutions for large discovery requests
- producing confidential or trade secret information
- Developing strategies to overcome Plaintiff ’s attempt to get the deposition of corporate attorneys
- Understanding the law in different jurisdiction and how this impacts your case
- Identifying the best way to get your order entered: file a motion or reach an agreement with Plaintiff
11:35 Preparing and Defending Daubert Challenges and Creating the Right Defense Strategy to Effectively Cross-Examine Plaintiff ’s Expert
Michelle I. Schaffer
Campbell Campbell Edwards & Conroy, P.C.
Jeffrey M. Croasdell
Rodey, Dickason, Sloan, Akin, & Robb, P.A.
Daubert
- Amended Rule 702 and keeping unsound expert testimony out
- Using Daubert motions with motions for summary judgment
- Recent challenges that worked and those that did not
- Understanding the evolving issues associated with selection of experts under Daubert
- Successfully asserting the claim that Plaintiff's experts are not qualified under Daubert
- Assessing the impact on causation once an expert has been struck
Cross-Examining Plaintiff ’s Experts
- Creating the right defense strategy to effectively cross examine Plaintiff's expert and exclude their testimony
- Examining strategies for discrediting the liability expert
- 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
12:30 Trial and Jury Strategy: Harnessing the Power of Social Media to Your Advantage When Gearing Up For an Auto Products Liability Trial
Thomas T. Johnson
Legal Counsel, Kawasaki
Nancy M. Erfle
Schwabe, Williamson & Wyatt
Barry I. Buchman
Gilbert LLP
Paul E. Wojcicki
Segal McCambridge Singer & Mahoney
- Developing strategy to utilize social media to the company’s advantage: Utilizing an aggressive plan to protect your company’s image
- Investigating social media websites to see what prospective jurors or actual jurors are viewing on websites and failing to follow judge’s instructions
- Looking at the ethical issues involved with using social media to gain information on the plaintiff , how far is too far?
- Learning the ropes of social media to stay up-to-date with gaining important information
- Conducting jury research to handle trial strategy and post trial strategy
- Evaluating options for crisis management
1:30 Networking Lunch for Speakers and Delegates
2:30 The Best and Worst Jurisdictions for the Defense, Key State-by-State Nuances, and How to Overcome Venue Cherry Picking
De Martenson
Huie, Fernambucq & Stewart LLP
Richard H. Grafton
Germer Gertz
- Jurisdiction and venue where the case is filed: what are the locales that are very difficult and user-unfriendly to corporate auto defendants?
- The jurisdictions “owned” by local plaintiff attorneys and determining whether you can win a summary judgment or other procedural motion in them
- The test applied to determine whether the product’s design is defective
- Apportionment and joint and several liability: state variations when developing case strategy
- Crashworthiness variations: determining if comparative fault of the person who caused the accident can reduce the plaintiff ’s recovery against the auto manufacturer and/or whether the judge allows in evidence of contributory negligence
- Reviewing the Federal Courts Jurisdictions and Venue Clarification Act of 2011
- Exploring removal variations and changes and jurisdictional requirements
- Removal: Reviewing changes in protocol and procedure for removal; Evaluating the impact of the one year limitation rule on removal in diversity cases; exploring the bad faith exception
3:25 The Latest on Consumer Fraud Claims and Disclosure/Accuracy Claims
Neal Walters
Ballard Spahr LLP
Paul E. Cauley Jr.
Sedgwick LLP
Consumer Fraud Claims
- Allegations that defects caused consumer costs for repairs and vehicles diminished in value
- Overcoming the claim that Defendant should have informed the Plaintiff they had pre-existing knowledge of the defect
- Assessing whether consumer fraud and negligent misrepresentation or glorified breach of warranty cases are disguised as class action claims
- Identifying and managing vehicle manufacturing, sales and service documents and data that raise consumer fraud claims
- Examining concepts for training the automotive work force on greater sensitivity to regulatory and litigation risk
- Creating trial tactics for defeating automotive consumer fraud claims: deploying consumer behavior principles
Disclosure/Accuracy
- Assessing claims that fuel economy is misrepresented on Monroney Label
- Examining claims of odometer inaccuracy; assessing risk and damages
- Identifying successful defense strategies
4:20 Main Conference Ends
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