Foreseeable Risk: Minimizing Cost and Maximizing Outcomes in Products Liability Litigation

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Author: Tom Taormina
ISBN 10: 1-936360-00-4
ISBN 13: 978-1-936360-00-0
Copyright Date Ed: October 18, 2011
Pages: 176 pages
Binding Information: Hardcover
Size: 6 ✕ 9 Inches (US)

Plaintiffs typically spend vast amounts of time, energy and resources in products liability litigation in determining proximate cause and cause-in-fact through forensic investigations. Defendants typically expend similar amounts of resources proving their innocence. On both sides, cadres of expert witnesses relentlessly write conflicting reports and give obtuse testimony often leaving the decisions of causation and consequences to the emotional consensus of a jury.

This book offers a much more exact science that can provide unimpeachable testimony for causes-in-fact, concurrent causes, combined causes, foreseeable risk, breach of warranty, design defects, failure to warn, res ipsa loquitur, negligence per se, risk utility and duty owed. Using proven tools grounded in quality and organizational management practices, it can be determined, through discovery and depositions, that the defendant’s practices and standard of care were beyond either reproach, or the cause-in-fact of the accident.

Author Tom Taormina has a history of 40 years in quality management and a decade of successful litigation support as a foundation. His breakthrough approach, applied in the discovery stage of cases, ensures the most efficient and equitable resolution for the clients, plaintiffs and defendants, while lowering the direct costs for all involved.

This approach is called Forensic Business Pathology® (FBP), a proprietary methodology used to evaluate the integrity of the business management, quality control and manufacturing practices of a defendant company. The outcome of an FBP investigation can show irrefutably that a company either did or did not exercise an appropriate standard of care, discipline and social responsibility in the production of the subject product or service.

FBP is the most comprehensive approach to investigation that looks beyond the failed product incident to uncover whether or not the producing company is guilty of willful or negligent disregard for the consequences of its product failure or for alleged organizational negligence.

For enlightened business leaders, FBP is a strategy for achieving peak performance while immunizing the company from products liability and organizational negligence. By virtually eliminating product defects and service errors, organizations can achieve unparalleled pinnacles of customer service.

For savvy litigators, FBP is a strategy for assessing the standard of care of a defendant company to measurable standards and scientifically proving or disproving negligence. By assessing business processes with forensic precision, the wellness of a company becomes an irrefutable barometer of its legal culpability. FBP is equally applicable and compelling for plaintiff and defense.

This book chronicles the evolution of Forensic Business Pathology, drawing lessons from Project Apollo and providing the reader with a new set of tools that can be used immediately to diagnose business health and well-being to new standards of precision and practicality.

This book is also available as an E-book. Click here to purchase and download:

Topics Include:

Products Liability Litigation
Standard of Care
Quality Management
Negligence
Duty of Care
Proximate Cause
Failure to Warn
Reasonable Person
Reasonably Prudent Duty
Punitive Damages
Forensic Evidence
Creating a Compelling Story
Creating an Unimpeachable Set of Evidence Trails
Life Cycle of the Products Liability Lawsuit
Case Studies
Lessons Learned
The Winning Defendant’s Strategy
The Winning Plaintiff’s Strategy
Applicability to Organizational Negligence Litigation
Acceleration of Just Outcomes

Chapter 1: Products Liability Litigation in the United States
1.1 The Journey from Warranty to Tort
1.2 The Plaintiff’s Story
1.3 Compensation
1.4 Business as Usual

Chapter 2: Introduction to Forensic Business Pathology
2.1 Blinded by the Light
2.2 Cause and Effect
2.3 Process Control
2.4 Leadership vs. Management
2.5 Standard of Care
2.6 The Foundation of FBP
A. Flying the Mission
B. Splashdown
C. Lessons Learned
D. Learning Moments
E. Wisdom from Knowledge
F. Hangin’ with the Bad Guys
2.7 Quality Management
2.8 Business Pathology
A. Symptoms
B. Enterprise Entropy
C. Paradigm Paralysis
D. Planning to Fail
2.9 Ignoring the Symptoms
2.10 Experiencing the Summons Server
2.11 Living the Five Stages of Grief
2.12 Summary

Chapter 3: Different Perspective on the Elements of Products Liability in Negligence
3.1 Definitions from the FBP Lexicon
A. Negligence
B. Duty of Care
C. Standard of Care
D. Joint and Several Liability
E. Proximate Cause
F. Vicarious Liability
G. Express Warranty
H. Implied Warranty
I. Fraud
J. Failure to Warn
K. Reasonable Person
L. Design Defects
M. Manufacturing Defects
N. Quality and Workmanship
O. Fitness for Use and Reliability
P. Consumer Protection
3.2 Manufacturer’s Reasonably Prudent Duty
3.3 Failure to Act Reasonably
3.4 Breach of Duty and Resulting Injuries
3.5 Compensatory Damages
3.6 Punitive Damages

Chapter 4: Defendant and Its Counsel
4.1 What Really Happened?
4.2 Did We Exercise an Appropriate Standard of Care?
4.3 Are We Culpable?
4.4 What Does the Data Show?
4.5 How Do We Anticipate the Plaintiff’s Assaults?
4.6 The Process-Based Strategy

Chapter 5: Plaintiff and Its Counsel
5.1 What Does the Forensic Evidence Show for Cause and Modality?
5.2 How Solid is the Physical Evidence?
5.3 Who Designed It, Built It, Supplied It, Imported It and Sold It?
5.4 What Industry, Statutory and Regulatory Requirements Are Imposed or
Expected?
5.5 Performing an FBP Audit of the Defendant’s Company
5.6 Constructing Cause-and-Effect Analyses
5.7 Creating a Compelling Story
5.8 Documenting the Findings
5.9 Creating an Unimpeachable Set of Evidence Trails

Chapter 6: Life Cycle of the Products Liability Lawsuit
6.1 The Facts of the Case
6.2 The Emotions of the Case
6.3 Playing Texas Hold ’em
6.4 How Much Do the Egos Cost?
6.5 Building a “Business” Strategy for the Case
6.6 Settling with Honor

Chapter 7: Case Studies
7.1 Apollo 1 Electrical Fire
7.2 Apollo 13 Disaster
7.3 Electric Dryer
7.4 Electric Vaporizer
A. Summary of the Business Pathology of Electrical Fires
7.5 Other Case Studies

Chapter 8: Lessons Learned
8.1 The Winning Defendant’s Strategy
8.2 The Winning Plaintiff’s Strategy

Chapter 9: Applicability to Organizational Negligence Litigation

Chapter 10: Acceleration of Just Outcomes
10.1 Where No Standards Exist, Create Them
10.2 Cost of Litigation
A. Money
B. Time
C. Irreversible Damage
D. Ego Cost
E. Compressing the Scheduling Order
10.3 Realities of Insurance Companies
10.4 Fresh Perspective on Tort Reform

Chapter 11: It Was Rocket Science

Book News, Inc.

Taormina, a forensic business pathologist, notes that testimony in products liability cases can often leave juries with vague, unspecific information that can lead juries to arrive at an emotional consensus. He advances what he describes as a "much more exact science" that can provide "unimpeachable" testimony for causes-in-fact, concurrent causes, breach of warranty, design defects, and other issues in organizational liability litigation through forensic business pathology. The author offers an introduction to the discipline and discusses a variety of elements in litigation such as defendants and plaintiffs and their counsel, the life cycle of a products liability lawsuit, case studies, lessons learned, and applicability to organizational negligence litigation.