A Covert Weapon for Litigators

Program Description

On January 18, 2023 at 3:00 p.m. (ET), The TASA Group, in conjunction with consulting and testifying in personal injury, products liability and organizational negligence expert Tom Taormina, presented a one-hour interactive webinar presentation, A Covert Weapon for Litigators, for all legal professionals.

Brief Description

Proving appropriate or negligent standard of care is typically an endless debate and prejudiced opinions. Utilizing the practice of conducting duty and standard of care investigations with the trademarked Forensic Business Pathology techniques has yielded a 96% success rate in more than 40 cases.

Duty of care is determined by finding and citing compelling standards. Standard of care is determined by comparing the defendant’s actions to international standards of quality management.

About the Expert:

Tom Taormina is a consulting and testifying witness in personal injury products liability and organizational negligence. He was a member of the team at Mission Control in Houston during the Apollo 13 disaster and recovery.  His experiences during his 14 years at NASA formed the foundation for his ability to rapidly analyze problems and diagnose solutions.  He has 50+ years’ of experience in manufacturing related industries and has written 14 books.

Transcription:

Najah: Good afternoon, and welcome to today's presentation, "A Covert Weapon for Litigators." The information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the expert.

In today's webinar, Tom Taormina will discuss, "Proving appropriate or negligent standard of care is typically an endless debate and prejudiced opinions. Utilizing the practice of conducting duty and standard of care investigations with the trademark Forensic Business Pathology techniques that have yielded a 96% success rate in more than 40 cases."

To tell you a little bit about our presenter. Tom Taormina is a consulting and testifying expert witness in personal injury products liability and organizational negligence. He was a member of the team at Mission Control in Houston during the Apollo 13 disaster and recovery. His experiences during his 14 years at NASA formed the foundation for his ability to rapidly analyze problems and diagnose solutions. He has 50-plus years of experience in manufacturing-related industries and has written 14 books.

For those attorneys seeking CLE credit today, the passcode is COVERT, C-O-V-E-R-T. During the Q&A session, we ask that you enter this passcode into the Q&A widgets for CLE recording purposes. The Q&A is located to the left of your screen, and the widgets to download the presentation and the handouts are at the bottom of your screen. Please remember that if you are applying for CLE credit, you must log onto your computer as yourself and stay for the full 60 minutes. You are also required to complete the survey at the end of the program. Please note the CLE credit cannot be given to those watching together on a single computer. Tomorrow morning, I will send out the link to the webinar. Tom, the presentation is now turned over to you.

Tom: Well, thanks, Najah. Good day to everyone. Welcome to "A Covert Weapon for Litigators" from the mountains of northern Nevada, where we're under 4 feet of snow at the moment. So, let's have a good thorough, and participative session. I'm eager for questions. I've learned from every one of these sessions. So, let's get started. The TASA people have sent you a PDF of this presentation for your desk reference. It includes a table of contents for quickly maneuvering through the 104 slides.

So, a little bit more about me. I was one of the first quality control engineers at Mission Control in Houston during Gemini, Apollo, and Skylab. For 10 years, my specialty was devising a robust supply chain management system for those providing equipment to Mission Control. Between that experience and 30-plus years in consulting, I've worked with more than 700 companies. My experiential background is unmatched in this field.

In the early 2000s, I was recruited into becoming an expert witness in personal injury products liability and organizational negligence, and have provided expert testimony in more than 40 cases. By the way, 25% defendant and 75% plaintiff. Present day, I'm still active in the world of quality and expert testimony. I've spent my career coalescing my work as a quality professional and an expert witness into tools for risk avoidance, business excellence, and for litigation.

As was presented earlier, let's get the disclaimers out of the way. It's based on my training and experiences, and it's offered as plausible strategies and tactics for licensed attorneys who practice tort law. My expertise is in products liability and organizational negligence. The intellectual property divulged in this presentation is principal registered trademarked and may not be used without expressed prior approval. I'm not liable in any way for how this material is used and implemented. Terminology I'll use is mine and not intended to be strict legal definitions.

The first thing we're gonna talk about is my trademark forensic business pathology, and there's a really good reason for that, and it'll become clear here in a minute. In the mid-2010s, the investigative methodology that I developed by amalgamating quality management practices with expert witness investigative tools was first published as a proprietary investigative technique that I labeled Forensic Business Pathology or FBP. For more than a decade, this methodology has been reluctantly accepted by opposing counsel as a valid prudential and as an investigative technique.

In 2017, Vyto Babrauskas, otherwise known as Doctor Fire, received certificate number two and C&O Expert in electrical fires. Judd Clayton received number three. In 2022, it obtained a principal register service mark. This is the covert weapon that's captioned in this presentation that you'll be exposed to for the rest of this course. Current day, FBP training and certification is being developed as courseware for quality professionals. Certification will be by an international credentialing organization.

One fine day, an attorney called me. He was representing the defendant in a lawsuit. The attorney asked if I would look at the case from a quality control perspective. Later that week, a delivery truck arrived with half a dozen bankers' boxes full of documents. Well, those days are over. The defendant company was a small supplier of silicon metal. They manufactured metallurgical and chemical-grade silicon metal and its alloys used mainly by the cosmetics industry. The plaintiff was a large multinational aerospace company that manufactures titanium parts for aircraft such as jet turbine blades, and helicopter rotors.

They purchased silicon metal from the defendant from 1989 to 1997. During that time, there were 13 purchase orders for 500 pounds of silicon metal each. The batch that led to the lawsuit was for 5,000 pounds. In the timeframe that led to this action, the plaintiff was certified to the international quality Standard ISO 9001:1994. The defendant was certified to ISO 9002:1994. We'll be talking a lot about this international standard as we progress, but the original ISO 9000 was released in 1987.

The litigation occurred in 2003 and 2004. The existing discovery included the various filings that went back and forth, specifications, purchase orders, and test reports. When retained, I immediately requested the quality manual and any operational procedures on supplier approval, incoming inspection procedures, and the defendant's supplier history.

Only a minuscule amount of silicon metal is needed to forge titanium. The defendant kept the product in open bins, not uncommon for their industry. For the batch that was purchased that led to the litigation, it's apparent that a light bulb had blown overhead and the glass and tungsten filament fell into the bin.

Tungsten is one of the toughest elements found in nature. It's super dense and almost impossible to melt. It has the highest melting point and highest tensile strength of any periodic element. The plaintiff alleged that the supplier shipped the lot in question without testing for contamination, even though it was not contractually required.

As I was sorting through the date, it occurred to me that I was just doing a quality management system audit, which I've done hundreds of times, without having to visit the company. As a consultant, trainer, and auditor to ISO 9001, this was how I always approached failure analysis. It was more than enough documentation to construct the chain of events of how pieces of tungsten were forged into the turbine blades and rotors, and how it was not discovered until the customer received the final product.

In my preliminary report, I drafted a timeline of each batch received, a copy of the receiving report, and a copy of the certificates of conformance. The purchase order stated that the certificate indicates the purity of the silicon metal and the percentages of iron and calcium in the report, nothing else. Especially, there was no requirements to test for contaminants. The certificates all were initialed and dated, indicating the received batches were acceptable to the plaintiff.

The next step was to review the supplier approval process and find supporting data for approval and subsequent re-approval of the defendant. In the documentation, I found a one-page questionnaire, dated 1991, that first put the defendant on the approved supplier list. Creating and maintaining a list of approved suppliers is a requirement of ISO 9001 and 9002.

Every few years, I found letters to the defendant notifying it of the plaintiff's intent to conduct an onsite audit. Every time, the letter was answered by the defendant stating that they did not do enough business with the plaintiff to warrant hosting a facility audit. Somehow, these letters from the defendant declining onsite inspections kept them on the approved supplier list, and it went on for more than 10 years. Clearly, the plaintiff was going through the motions of maintaining approval of the defendant without actually reading the content of the responses. In the last attempt, which was the 5,000-pound order, the defendant responded by refusing to sell the silicon metal to the plaintiff.

The final step in what would become my first FBP investigation revealed that the plaintiff never tested the raw material received from the defendant, thus the batch of contaminated material made it through the entire fabrication, inspection, and test process with the shards of tungsten forged into the parts going undetected.

Since tungsten has a much higher melting point than used in titanium forging, these shards would eventually cause fractures that would break the turbine and rotor blades. Fortunately, the plaintiff's customers did inspect them and found the defects before the parts were installed. My investigation revealed that the plaintiff mechanically released the defendant's material into production with only the data on the defendant's certification form. The plaintiff never explained why they did not do fluoroscopic testing at incoming inspection as was written in their standard operating procedures.

In the defendant's testimony, it was revealed that their silicon metal was mostly used for cosmetics, and the silicon was never meant to be used in aerospace. This fact eluded the plaintiff for years. In my report, deposition, and testimony in court was a storyboard of how the plaintiff had systematically ignored its procedures for supplier approval, incoming testing, and final testing. In a bench trial, the federal judge found the defendant not guilty.

So, we will begin the process of transforming from what I have done in quality management into what I call forensic investigations.

After my courtroom testimony and verdict, I came to the realization that I had used my skills as a quality systems auditor for investigating the issues of the case and then used commonly acceptable root cause analysis techniques for each of my conclusions and opinions.

What makes this training immediately applicable to tort law and to your future success is creating an awareness that there are proven techniques available to bring more rapid and more cost-effective resolutions to your cases. The techniques revealed herein are not known to many litigators and will become your secret weapon that blindsides opposing counsel.

It's not often in civil and criminal cases that irrefutable evidence is produced by either side. In product liability and organizational negligence, however, it's almost a slam dunk when you can document empirically that the company did not follow its own procedures. So, the first task for me was to transform internal quality audits into compelling forensic investigations.

In quality parlance, every operation within a company is a process. Every process has an input and an output. What transpires in between those two determines the difference between conforming and defective products or services. Every process is interrelated with the processes that came before and after, creating a cohesive system that can work flawlessly when it's executed well.

Expertly evaluating the effectiveness of the business process is key to conducting FBP investigations. Every process within a business can contribute to products liability and organizational negligence. In retail, processes are everything from qualifying suppliers, evaluating the quality and reliability of products, and determining whether they are introducing potential liability into the stream of commerce.

In manufacturing companies, processes include design, supply chain management, manufacturing, testing, distribution, and customer service. Each of these processes must be defect-free, or the organization is open to foreseeable risk and potential liability. These two terms are foreign to most manufacturing companies.

For service companies, processes may be more difficult to control, especially when supplying services directly to clients. In all cases, however, process variability leads to defects, which lead to potential liability.

ISO 9001 is a standard that was developed by the International Organization of Standardization in Geneva. It's a non-binding standard that has been adapted widely across the globe. The standard has been accepted formally in more than 190 countries by governmental bodies. In 2020, there were more than 900,000 certificates issued worldwide. It's unquestionably a robust foundation for establishing duty of care.

In the silicon metal case, both plaintiff and defendant were certified by a third-party audit to the ISO 9000 revisions that were in place at the time. In adjudicating the case, the standard became prima facie evidence of duty of care. From there, determining appropriate or negligent standard of care is a matter of comparing what's required by the Standard, what the organization has documented as to how they will comply with the Standard, and is compared to the evidence in the case.

History has proven that most companies involved in products liability and organizational negligence litigation failed to follow their own procedures and, by definition, failed to follow the terms of their certification. Citing ISO 9001 as an irrefutable duty of care has never been successfully challenged in any of my cases. I've also never been subject to a Dover hearing.

If neither plaintiff nor defendant are certified to the Standard, it's still globally recognized as a baseline for responsible manufacturing companies. If a company has no formal quality program, I argue that they are negligent in having no foundation from which to demonstrate process compliance. To date, the covert weapon of Forensic Business Pathology has been proven formidable in establishing duty of care, regardless if they have any type of formal quality program. Absence of any recognized quality management system is often every bit as powerful in proving negligent standard of care.

My testimony that ISO 9001 is a basic driver's license required by any responsible company typically takes us to proving acceptable or negligent standard of care very quickly and very convincingly. Are there any questions that have been posted yet? I haven't seen any.

Najah: No. there haven't been any questions, so we can continue on.

Tom: Okay, very good.

Najah: Thank you.

Tom: I think it's pertinent at this point to talk a little bit about my unique background because I'm not listed in any of the agencies that provide expert witness to you. Of the myriad of companies that I've worked with, I'm blessed to have gained operational knowledge of many different industries, products, and processes. This background minimizes my required learning curve in most cases. I also obtained a wealth of information from other experts that I have worked with over the years.

While my testimony is focused on quality management, risk assessment, manufacturing processes, and organizational negligence, I've amassed a great deal of background working with other experts. This provides a unified strategy to my client or attorneys.

Of course, the first question I'm typically asked in an initial attorney interview is, do you have expertise in XYZ? My answer is always no, but I can opine on whether the defendant exhibited an appropriate or negligent standard of care and provide objective evidence. Opposing counsel has yet to be able to convincingly impeach my written and oral testimony.

I received a Quality Control Engineer designation in 1969 from NASA and Ford Aerospace. It's now a recognized college degree and field of studies. My certified Management Consultant credentials and my certified Manager of Quality and Organizational Excellence were all gotten through exams, and case studies, and peer review. By the way, both of the certificates were issued in the 1990s.

My work has also given me the experiential background to publish 12 books on the topics of effective quality management, process control, and standard of care. In 2010, I was commissioned by Lawyers & Judges Publishing to write "Foreseeable Risk." It documents how my investigative techniques are applied to litigation. The book is also being used proactively by strategic thinkers in organizations that want to avoid civil litigation.

By now, virtually all of you have had a products liability case that involved a product or component manufactured offshore. While the retailer, distributor, or service provider is typically named in the lawsuit, there's little appetite these days to pursue an offshore manufacturer for several liability.

Pursuing several liability is seldom cost-effective because you're often unable to find where the product was manufactured. The various importers and brokers can obfuscate where the item came from because they often buy the same product from multiple sources. If the subject product in your case has no serial number or other form of traceability, it likely came from some big warehouse in Hong Kong and its origin is unknown.

I have worked cases involving some of the largest retailers in the U.S. and they have developed arguments that they are buying a part number from an importer and have no way of determining the quality standards. In my opinion, that dog don't hunt. The organization that introduces the product into the stream of commerce has singular liability. Savvy defendant's counsel will do everything in their power, however, to deflect the blame to anyone else.

It's my understanding that most of these cases settle with some amount of money changing hands, while fault is never admitted or assigned. Moving manufacturing back to our shores will be the only long time and painful process that we need. There are too many moving parts in our supply chains.

I find it's best to use case studies in proving my allegations and my principles. But I'm currently working a case where a discount distributor has a history of the subject device failing for a multitude of reasons. Even though the defendant produced warranty and failure reports in discovery, there is no way for a C&O expert to tie the subject product to a particular lot received by the distributor, nor to link the failure directly to any other reported defects or recalls.

Utilizing any conventional approach to establishing duty of care, the best a plaintiff can hope for is for cesspool conflicting evidence that usually leads to a quick settlement without any admissions and with these terms sealed.

I've had several cases where the defendant's behavior was so egregious that we were able to gain favorable outcome for the plaintiff, just on the dramatic failure evidence. That strategy is risky, especially when FBP investigations are your best choice. In this case, last week, I received a call from the attorney, and all he told me was they settled for a very nice amount of money. That's usually the best feedback I ever get.

Another more disastrous example is a well-respected manufacturer of electrical outlets and other commercial household electrical devices was sold to a holding company. That company bought the manufacturing rights to virtually all the hundreds of products that had been safely produced in the States for decades.

The original brand name was well known, especially to electrical contractors. At first, the only evidence that there was any type of change in the products was the name of the holding company being substituted on the products. They were in the same bins that the original manufacturers were in hardware stores and big retailers.

In this case, a licensed electrical contractor correctly installed one of their dryer outlets in a home to provide power for a window air conditioner. The outlet caught fire, destroyed the home, and killed the residents as they slept. The C&O experts traced the cause to resistive heating within the subject outlet. Fire experts constructed a model room and installed an exemplar outlet and an air conditioner. In the photo, the exemplar caught fire within an hour of being connected to the air conditioner. Several of us on the case visited the chain retailer in different states. We found that some exemplar units still exhibited the same defect found in the subject outlet.

In this case, my reports and those of other experts of likely manufacturing defects convinced the judge to allow us to do a facility inspection at the maquiladora in Mexico City, where the subject outlets were being manufactured. The holding company had picked up the equipment and remaining inventory of dozens of product lines from the old company and placed them in the maquiladora. The same tools and assembly steps were in place, but none of the quality controls.

During our visit, it was discovered that the assemblers had no idea what they were making or how it was used. There was evidence that the same assembly tools were being used, but they had calibration stickers that showed that they were acceptable when they started, but they'd been worn off because of misuse. There was no evidence of any steps to maintain or calibrate the tooling.

Observing the manufacturing process, there were several threaded components inside the outlets that were not tightened properly. Some were even cross-threaded by the operators causing the environment for resistive heating to happen. There were no inspections or tests performed prior to boxing the products and shipping them out.

Another typical requirement for electrical products sold in America is to have an Underwriters Laboratory label and listing number on the product. In this case, the listings were transferred to the new manufacturer in a very unprofessional manner consistent with most products made offshore. The manufacturers are compelled to periodically call in UL inspectors to ensure that the listings are still followed.

It just happened that their contracted UL inspector was there one of the days we were there. From the visitor log, I determined that the inspector was in the plant for approximately 30 minutes when he allegedly verified compliance for 1,200 product lines produced in that factory.

The bottom line for litigators is to not overlook the fact that UL listings placed by offshore manufacturers are no longer evidence of adequate product safety.

While offshoring is often an invitation to products liability that's difficult to prove, there are instances where the organizations are tuned into foreseeable risk and create supplier partnerships with their offshore.

I've done three consulting assignments for Dell Computer. In this case, I helped Dell write their supplier quality manual. It prescribes a year-long process of validating the capabilities and quality history of all suppliers, including their many in Europe and Asia. Knowledge that there are organizations that are attempting to mitigate risk should also be helpful in your legal strategy. As with other controls, ISO 9001 certification by the suppliers is always required for Dell.

My organization model has been for the last couple of decades what I call, "Think outside the globe." Each of you has developed a strategy that has obtained the verdicts or settlements most favorable to your clients. That basic strategy is likely employed at the beginning of each new case and it serves you well.

Occasionally, there's a scenario that causes you to look outside the box when seeking experts or in developing case strategies. Thinking outside the box is so last century. This training will encourage you to think outside the globe. Enlisting our help early and employing forensic business pathology early on in a case can save you exorbitant expert fees, frustrating discovery requests, and hours of research into evidence that may or may not get you a compelling argument for your side.

Attempting to establish a fact-based duty of care can range from being daunting and difficult to relying on the power of persuasion by experts. Unless there are compelling standards, statutes, or regulations that can be irrefutably established as being governing in your case, it's not uncommon to avoid attempting to define duty of care and move straight into opining about what appropriate or negligent standard of care is. Proving appropriate or negligent standard of care is a much more desirable outcome than opining about it.

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We compare the facts of the case to the esblished duty of care. We then build a legally compelling case for appropriate or negligent standard of care from fact-based evidence, not opinions.

In more than 40-plus cases, this methodology has achieved a 96% success rate, and 82% of the cases are settled out of court. There's likely no other strategy in products liability and organizational negligence tort that has this kind of repeatable track record.

Another compelling statistic is that our retainer against billable hours typically produces a preliminary report that drives cases to early settlement. It is not unusual in a preliminary report that we overwhelm opposing counsel with empirical evidence rather than an expert conjecture.

At the end of this course, you'll be offered a no-cost, no-obligation consultation on any cases or hypotheticals you may want to discuss one-on-one. Stop again for questions.

Najah: Yes. So, Tom, I actually dropped about eight questions in our chat. I can read them to you. The first one is, "Are the ISO 9000 and 9001 standards available in the public domain?"

Tom: Yes, they are. They're copyrighted, so you'll have to pay for them, but they're available online. Many organizations have reprinted them even though they're copyrighted.

Najah: Okay, so this might piggyback without them. "Who do I ask for to get a defendant to disclose ISO 9001 standards information?" I think that goes with that one though.

Tom: Well, it's not part of your typical discovery, but again, if you call me in early on, I will ask for that. And better than that, a lot of times I can find out the information online and save a whole lot of discovery headaches.

Najah: Oh, cool. Okay. The next question, "How does ISO apply to chemical or petrochemical companies?"

Tom: Great question. I think one of the case studies we'll talk about today is in a petrochemical refinery... They apply to every industry. It doesn't matter the industry. As I said at the opening, every industry, every company has a set of processes. So, what I'm looking at is the processes, and whether or not they were adequate or inadequate. So, it doesn't matter to the company whatsoever.

Najah: Okay, so I think this might actually go to the same one. "Are you agreeable to travel for testimony?" This attorney practices in Philadelphia.

Tom: Agreeable? Not terribly, but we can talk about it. I do it on a case-by-case basis.

Najah: Okay. "In New Jersey, the retail seller is not liable if there is a manufacturer or distributor in the U.S., so long as the retailer does not alter the product or packaging." It's just a comment.

Tom: Yeah, thank you. I'm aware of that, but thanks for bringing it up.

Najah: I wanna know if you can find liability with the holding company just by showing a lack of a safe process or a certification process.

Tom: Well, I do not shy away from going after distributors or wholesalers. I do that routinely. It's up to the litigator, whether or not they want to go after them, especially if they're in some backwater country in the Far East. So, it's a case-by-case basis. I have no problem with investigating the distributors.

Najah: Does ISO apply to QA or QC?

Tom: Good question. QA is quality assurance. QC is quality control. ISO 9000 is called quality management. It amalgamates all of the learning we've had since the Industrial Revolution into the standard, which is supposed to set the baseline for how quality control and quality assurance are brought to realization, regardless of what the company, or the product, or service are.

Najah: And the last question for this section, "How can you apply the standard of care to the new holding company?"

Tom: Well, standard of care will depend on how we define duty of care, and that's usually a collaborative process between me, the attorney, and the other experts. If we find a distributor that's ISO 9001 certified, Katie bar the door I'm going after them. If there's other discovery... I've actually been to Shanghai on a case because the attorneys here in States were convinced that my report was valid but opposing counsel and the judge said, "Well, why don't you go to the factory and find out?" It turned out it was one of the most buttoned-up companies I've ever been to. So, it's absolutely case-by-case. And unlike other expert experts, I have no preconceived notions.

Najah: Okay, those were all the questions we have for right now.

Tom: Great questions, folks. Keep them coming. Okay, moving on. So, let's define quality. That's kind of the elephant on the conference table. What is quality? And the next slides will correlate cogent definition of quality to products liability litigation. This will help you skillfully react to opposing counsel's attempt to create their own definitions of quality. The ones depicted here are just from within our own quality professionals. We can't even decide.

But since it's one of the most overused and misunderstood words in the English language, the term is used to describe everything from exceptional value as a positive attribute to unacceptable as in poor quality. Without a working knowledge of quality systems and establishing a clear benchmark for the word, this term can often obfuscate the facts in the litigation.

Separating the wheat from the chaff, the definition of quality can best be argued as fitness for use. A defect-free product should be defined as fit for use, while a defective product is, by definition, unfit for use. There is seldom a need to attempt to define the nuances of quality that was difficult from a 50-year quality professional to think outside my globe. But it's incumbent on litigators to establish this single definition as early in the case as practicable, making it more difficult for opposing counsel to muddy the waters with prejudicial arguments.

So, this is a graphic I put together to illustrate pretty much how we would go about an investigation. In this case, it would be the failure of a kitchen toaster. The best defense is often using a strong offense. In FBP investigations, it's usual for us to create a graphic of duty of care or standard of care, and the other mitigating factors about the subject of the litigation. In this example, there would otherwise be a little chance of establishing duty of care for a kitchen appliance.

In this case, our quality systems and litigation training create sufficient experiential data to establish a robust duty of care. A toaster would be expected to fulfill the needs of the consumer that purchased it, be safe, be reliable, meet any stated performance objectives, and meet implied requirements that a reasonable person would expect from a toaster.

Expected standard of care for a reasonable person would include all the points defined in this table. The measurements in this table are included from experience working with electrical safety and fire experts, and with our understanding from previous cases.

These cited requirements are mostly reasonable and prudent issues that the manufacturer should have included in their due diligence in placing the item into the stream of commerce. Rather than relegate such reasonable requirements to the whimsical interpretations of opposing counsel, FBP brings them to the forefront early in our testimony.

Finally, the requirements for safety are levied by almost all jurisdictions in the United States. As stated earlier, they typically include a logo and a listing number by Underwriters Labs, regardless of where they were manufactured. Safety testing labels are now global, and you're likely to see many of these on everything from toasters to computers.

So, what's the bottom line of quality? Quality is defined as fitness for use, nothing else. If a case involves an electrical product, there are many approaches available to establishing duty and proving standard of care. Safety logos on products may or may not indicate appropriate or required testing. 

And typically, especially in complicated cases, we'll do a flow diagram that would look something like this. By presenting this detail of information in producing an expert report, the burden is now assigned to opposing counsel to refute, rather than you to prove expert testimony.

By consistently following our investigative procedures, we can produce compelling reports and testimony that's based on our experiences. We ensure you the most convincing testimony because our strategy is replicated from previous successful assignments.

In very complex cases, we've developed, some number of years ago, this organizational liability risk index. It's a scored spreadsheet that yields a numeric value to compare what the company believes their liability risk compared to what we think it is. The wider the gap, the more the problem is for the supplier.

In our business process consulting work, we occasionally are compelled to use our Organizational Liability Risk Index to perform a deep dive into particularly elusive problems. Conventional quality root cause investigations, unfortunately, sometimes miss the mark in identifying complex causes of failures or process nonconformities that lead to critical defects.

In our investigation, it is too often the case that experts identify the reasons for the failure, but not the root cause. In most cases, it's not warranted to take the costly steps necessary to uncover why the event occurred.

But in a recent case, there was an accident at a petrochemical plant that caused personal injuries. The allegations made by the plaintiff concluded obtuse accusations that several liability for the accident resided with a group of quality auditors who "Should have seen the foreseeable risk that set up the scenario for the accident." This investigation took considerable research and the contractual requirements for the auditors, their actions in this case, and customary potential liability for such auditors. At the end of my investigation, the auditors were dismissed as defendants, and the deep dive was worth the time and expense.

My questions to you is, do your experts use definable, repeatable, and proven investigative processes? Are you able to follow the logic of the reports and testimony, or just participate in verbal fisticuffs in depositions? I've witnessed many of those.

Our process for generating rapid preliminary reports includes mining existing discovery and conducting online research, rather than submitting complex discovery requests. Search engines have become the go-to tool for finding information that we need to create our expert reports. Rather than load down our attorneys with convoluted requests for discovery and then wait months for responses that are seldom useful, it's often more expedient and more productive to search the internet.

While it's important not to quote any internet research as fact, there are often experiential and anecdotal gems that are there to be mined that demonstrate repeated misinformation that supports our findings.

Company websites are often created by sales and marketing people. We've learned that their content is often misleading and erroneous. We regularly use such information in bolstering arguments for negligent standard of care. In this particular case, one of our cases, the website said that ISO 9001 is a real guarantee of quality, and that deserves at least three Pinocchios.

We often use a tool called The WaybackMachine to find website content that has been taken down or revised. In one case, we were told by a defendant that they did not have any published manufacturing or quality standards for their suppliers. We found their supplier handbook that was a current revision in the case timeline on the WaybackMachine. It had been removed from their website weeks after our preliminary report was published. We were able to find requirements and documents that were clearly not followed by the purchase of the subject consumer product.

Our preliminary reports often drive cases to early settlements and are typically paid for with retainer fees. As discussed earlier, our preliminary reports are sometimes the only reports we need generate. While I'm not privy to what happens when the attorney produces my report, it's often six months before I must ping them to find out that the case had already been settled. Sometimes I don't even get the dignity to send a final invoice. The preliminary research and report typically just consume the retainer fee.

This scenario is a direct result of being able to do internet research as applicable to duty of care, how the organization represents itself to the world, and how much derogatory information is available in the public domain. One more stop for questions before we wrap up in a few minutes.

Najah: Okay. Now, if everyone could type in their passcode, I've seen a lot of you have already done it. We do have two questions. "Does this standard apply to other contexts outside of product liability? For example, would it apply to a construction company that does not keep its workplace safe so that it causes an injury to a pedestrian if you argue that the general contractor did not follow its safety plan, did not require subcontractors to follow the safety plan, etc?"

Tom: Absolutely, if there is an established statute or industry-wide standard, or if it's their internal standard, exactly the same thing. They claim to follow their standard, and my investigation will prove they didn't. And I don't know how much more you need aside from the arguments that always go on in deposition than a trial. You would stand a much firmer chance.

Najah: And the last question is, "Why did you lose any cases for which you were retained?"

Tom: I'm sorry, repeat it.

Najah: Why did you lose any cases for which you were retained?

Tom: I'm not certain I understand the question. I don't know what moving a case means.

Najah: Losing a case.

Tom: Oh, losing. Yeah. The two cases were pretty funny. It turns out that the... And one of the most egregious one, the plaintiff we were representing fell off a motorcycle and had to have his hips replaced. And as we were about to hold the company that manufactured the motorcycle to strict liability, this guy got on a reality TV show and dumped another motorcycle. So, all the work I had done went for nothing. So, that and one other similar case was why I was on the losing side.

Najah: Gotcha. Okay. Those were all questions.

Tom: Okay. I'm just gonna wrap up quickly here because I want to respect the time. And the rest of the presentation is mostly case studies, which I recommend. If you work well with case studies, I recommend you read them on your own time.

So, the next four slides are experiential information that I've gathered over the years. They may appear to be self-evident, but they're worthy of consideration as powerful conventional wisdom. Again, they're not offered as professional arguments between sides, just memory joggers.

Personal injury and death resulting from product-related incidents are predominantly the result of consumers using unsafe products incorrectly. Regardless, consumer products should be stupid-proof. Product defects are most often the result of processes out of control and companies abdicating their stewardship and accountability than from poor product design. Supply chain management tools exist that can effectively control the safety, quality, and reliability of imported products, regardless of the country of origin.

Product safety listings no longer give us assurance of their intended degree of safety testing because unprincipled manufacturers have obfuscated the listing process to the point of impotence. While competition to sell through large chains and box stores may be a politically convenient rationale for compromising quality and safety in favor of low prices, voracious business leaders do often make dissolute decisions to sell potentially dangerous products.

Proven losing arguments include we have little control over the quality and safety of the products we import. It's not cost-effective for us to have consumers return defective items, so we don't know if they're failing and why. Technology changes so quickly, we must sell products and services that are not well-tested. Our products are safe. They're UL listed. Our product is not defective. The consumers used it improperly. The Consumer Product Safety Commission is the gatekeeper for preventing defective products from reaching the customer. We're developing new products based on renewable resources that will solve our current issues. We can't compete because of governmental regulations.

I just received this testimony a few weeks ago. I don't usually include them, but in this particular case, I was the primary investigator and the expert. And you can see that the attorney was pretty happy with the outcome.

So, as I said, the rest of its case studies, if there are any more questions before we wrap up, I'd be happy to answer them. The last slide in your handout contains my email and phone number. As I said, you're all welcome to a complimentary consultation on existing cases, future cases, or hypotheticals. I'm completely open to all of them, especially right now when I'm digging out of the snow. So, is there anything?

Najah: No, we don't have any more questions, so thank you so much, Tom, for your presentation.

Tom: Great. I enjoyed it. Thanks for the questions, folks.

Najah: I wanna take this opportunity to thank everyone for attending, and most especially Tom for his time and effort in creating this presentation. If you would like to speak with Tom, feel free to let us know or contact Tom directly. You can give us a call at 1 800-523-2319, and then one of my colleagues would be in touch with you.

This concludes the program for today, and like I said, I will send over the archived webinar tomorrow morning. Have a good day.

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