Trial Magazine

But for. Two little words we know so very well. They often stand between victory and defeat at trial. These are the two words, after all, that summarize the plaintiff’s burden of proving causation. “But for the corporation’s failure to put a guard over the blade on the lawn mower, the plaintiff’s tragic injury would not have occurred.” In our collective experiences as trial lawyers, examples of the penultimate question posed to the jury containing the words “but for” are endless.

Of course, there are many ways to think about “but for” outside the realm of proving causation to a jury. Just think of any experience or outcome in life, and consider “but for” what action or inaction did that result come about? Frequently, I think about the quality of safety in many of the products in our lives and how, but for the role of trial lawyers, our world would be filled with much greater risk.

From the moment we wake up and start the coffee maker or put a bagel in the toaster, we use everyday products made safer by trial lawyers. As we greet our children, we are thankful for safer infant seats, rockers, and cribs. We are grateful that our teens can no longer easily access flavored electronic cigarettes. As we get in our cars and drive around, everything from the ignition switch, to the seat belt, to the tires, to the air bag system—even the guardrails on the side of the road and the design of the road itself—have been made safer by products liability cases.

And it’s not just the work inside the courtroom that has brought about change in products. A critical part of further risk and injury prevention stems from the evidence trial lawyers uncover during discovery. Whether it is discovery that exposes the weed killer Roundup’s main ingredient is carcinogenic or the baby powder that was a mainstay in homes for decades contained talc that caused ovarian cancer—without trial lawyers and their clients, these facts would not come to light.

Despite the great work that trial lawyers do to unearth product dangers and hold manufacturers accountable, many forces continually attempt to immunize corporations from that accountability. But for the work of AAJ, that kind of immunity could take hold.

In recent years, AAJ has stood on the front lines to help shape legislation like the amended Toxic Substances Control Act (now the Lautenberg Chemical Safety Act), which will preserve state laws to hold manufacturers accountable for unsafe chemical products; pressed for a public hearing from the FDA on testing for asbestos in talc; and called for meaningful regulation of cosmetic products.

In this month’s issue of Trial, read about the standard for “clear evidence” in preemption defenses post-Merck (p. 26), how to counter defendants’ blame shifting tactics (p. 18), tips for handling cosmetic talc cases (p. 34), and investigating product defects during intake (p. 42).

Additional AAJ resources include the Products Liability Section (www.justice.org/sections), which gives members access to a secure document library, list server, business meetings, and education programs. Section members also receive the Products Liability Law Reporter, featuring verdicts, settlements, and court decisions. AAJ Exchange Litigation Packets cover JUUL litigation, auto products liability cases, claims against foreign manufacturers, and more. View all titles at www.justice.org/litigationpackets.

As we continue to adjust to the new normal brought about by the pandemic, we appreciate more than ever the efforts that ensure our safety and well-being. Thankfully, because of our members’ great work in the products liability arena, we know that product safety is a part of our society that will continue to be improved through civil justice in the courtrooms and through advocacy in Congress and administrative agencies. But for AAJ and its members, we wouldn’t be able to count on this reassurance.

Tobi L. Millrood is a partner at Pogust Millrood in suburban Philadelphia and can be reached at tobi.millrood@justice.org.