Death is different. Criminal law imposes far greater punishments when victims die—and mandates far greater protections when the defendant faces death.
In tort law, fatal accidents often lead to complicated, emotionally charged litigation. Many fatal accidents occur in heavily regulated industries, governed by multiple statutes and overlapping jurisdictions. Attorneys with a generalist bent can quickly feel overwhelmed by the complexities and nuances of this system. To counter the deluge of varying information, James T. O’Reilly and Thomas G. Neltner have penned When Products Kill: Litigation and Regulatory Responses, a clear and detailed guide for attorneys attempting to navigate this complex system and to understand the many issues surrounding fatal accidents.
Since the beginning of the twentieth century, administrative agencies have increasingly taken the lead in investigating fatal accidents. Agencies develop comprehensive safety standards—designed to prevent accidents—and conduct comprehensive investigations to assess what went wrong and who was responsible. Still, lawmakers have preserved a role for private tort law—even in highly regulated industries—to ensure adequate enforcement of the law. The practical result is a mixed system of public and private enforcement of laws and regulations—a system that depends on generalist attorneys.
When Products Kill analyzes the players and concepts at play in three clear and accessible sections. The first section offers some thoughtful background on the significance of fatal accidents as well as general principles for preparing a case involving a fatal accident. It also presents a doctrinal overview of product liability claims, helpfully summarizing key issues from the plaintiff and defense perspective. Much of the information, such as advice about determining whom to sue and where, applies to all tort cases, but other advice is specific to fatal accidents. For example, the authors discuss the role of the attorney in assisting bereaved loved ones. This section also gives a useful refresher on some general principles of agency structure and investigatory powers for attorneys not experienced in administrative law.
The second section is the heart of the book. It focuses on specific industries involved in a high share of fatal-accident litigation, including the transportation industry, food and drug sector, and chemical pesticide industry. The information for each industry cuts across an alphabet soup of regulatory agencies, competing jurisdictions, and sundry statutes.
The authors focus on the many new online resources available, providing informative charts for each industry. The proliferation of online resources is both a boon and a burden to litigators. Federal websites compile vast amounts of data, from investigative reports and product recalls to consumer complaints and FOIA requests. The available information, though, varies by industry and agency and is more easily accessible from some agencies than others. O’Reilly and Neltner offer practical tips for organizing this vast amount of information without becoming overwhelmed.
The third section builds on the first two and focuses on integrating these resources into a lawsuit. The authors describe issues that may arise in attempting to enter administrative materials into evidence in a tort law suit. Not all administrative reports are equal, and attorneys should be prepared to argue the reliability of the information as well as issues that arise when the plaintiff attempts to use a violation of an agency’s safety standard to establish negligence.
Recent research has identified a worrying trend in America: The death rate in America is increasing at a time when other developed nations continue to see decreases. While there are certainly multiple overlapping causes to this trend, deaths from accidental causes, including traffic accidents, appear to play an important role. Reversing the trend will require designing safer means of transportation, safer foods and drugs, and safer chemicals. If past experience with regulation is a guide, there is an important role for private attorneys to play in improving the safety of consumer products. This work is vital to public health and safety and to saving lives. When Products Kill is a valuable resource for attorneys preparing to bring product liability claims or to defend them.
James T. O'Reilly and Thomas G. Neltner, When Products Kill: Litigation and Regulatory Responses (ABA 2011). Search this and other Section of Litigation books at ShopABA.org or by calling 1-800-285-2221.
