Trial Practice and Procedure Archives - Faegre Drinker on Products

Category: Trial Practice and Procedure

In Case You Missed It: Faegre Drinker on Products — Winter 2026

Catch up on the latest developments of interest for product manufacturers. Here’s a quarterly compilation of the most popular blog posts on Faegre Drinker on Products.

Instruction Malfunction: Pennsylvania Superior Court Vacates $1B Verdict Due to Faulty Jury Instructions

By Sophia M. Landress & Benjamin R. Grossman

Preserving objections to jury instructions can be the difference between paying a significant judgment or making a plaintiff prove their case again at trial. The appellate panel held that the trial court ought to have instructed the jury properly about the crashworthiness doctrine, rather than only instructing the jury on the standard strict liability doctrine.

A Win for the Gig Economy: First Appellate Ruling on Florida’s TNC Statute Affirms Independent Contractor Protections

By Traci T. McKee, Dona Trnovska Gilliland, & Andrew J. Koehler

The TNC Statute generally shelters transportation network companies (TNCs) from vicarious liability for drivers’ actions if certain conditions are met. Abner v. Lyft Fla., Inc. not only reinforces a textual reading of the legislature’s independent contractor structure but also sets a high bar for negligent hiring claims.

Instruction Malfunction: Pennsylvania Superior Court Vacates $1B Verdict Due to Faulty Jury Instructions

Preserving objections to jury instructions can be the difference between paying a significant judgment or making a plaintiff prove their case again at trial.

In October 2023, a Philadelphia jury handed down a mammoth $980 million verdict for the plaintiff in Amagasu et al. v. Mitsubishi Motors North America et al., due to an allegedly defective seat belt. The verdict included $800 million in punitive damages. Amagasu et al. v. Fred Beans Family of Dealerships, et al., No. 1594 EDA 2024 (Pa. Super. Ct. Dec. 22, 2025). The presiding judge increased the compensatory portion of the verdict, pushing the total award past $1 billion.

Continue reading “Instruction Malfunction: Pennsylvania Superior Court Vacates $1B Verdict Due to Faulty Jury Instructions”

Enforcement of Representative Actions is Here

It’s finally here. Enforcement of the Collective Redress / Representative Actions Directive (RAD) in the EU has now begun. At this time, six member states have adopted a national translation of this law and nineteen states are engaged in ongoing discussion and drafting. The landscape is changing rapidly and our team is tracking these developments.

Are you ready for this shift in litigation culture? Backed and supported by the growing EU third party litigation funding industry, the RAD will provide an unprecedented procedural mechanism to bring class and consumer actions on a mass scale against EU traders. These actions can be premised upon one or more of 66+ substantive regulations that cover everything from the finance industry to environmental regulations to product and artificial intelligence liability. If you have not prepared, now is the time.

Continue reading “Enforcement of Representative Actions is Here”

The California Supreme Court Shrugs Off a Settlement to Provide Important Guidance on Admissibility of Former Deposition Testimony by Company Witnesses

We reported back in December [California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions] on a case then pending before the California Supreme Court, Berroteran v. Superior Court. The case involves the former testimony exception to the hearsay rule, Evidence Code section 1291(a)(2), as applied to the deposition testimony of company witnesses taken in prior litigation. [Disclaimer: I wrote an amicus brief in support of the petition for review and another on the merits.]

Oral argument did not go well for the plaintiff. Consequently, it was not surprising that within a few days the parties notified the Court that they had reached a settlement. The Supreme Court could have dismissed the appeal at that point and left the issue unresolved. But because its core mission is “to secure uniformity of decision” and to settle important questions of law, Cal. Rule of Court 8.500(b), the Court went ahead and decided the appeal. 2022 WL 664719 (Cal. Mar. 7, 2022). And, as Larry David might say, the decision is pretty, pretty good.

Continue reading “The California Supreme Court Shrugs Off a Settlement to Provide Important Guidance on Admissibility of Former Deposition Testimony by Company Witnesses”

California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions

The California Supreme Court will soon decide an evidentiary issue that could significantly impact how company witnesses are defended at deposition.

The Court heard argument December 7 in Berroteran v. Ford Motor Co., No. S259522, a class action opt-out case alleging consumer fraud claims based on purported defects in a Ford truck engine. The appeal involves interpretation and operation of California Evidence Code section 1291 — an exception to the hearsay rule for former testimony — and specifically how it applies to the deposition testimony of company employees taken in prior cases.

Ford moved in limine to exclude as hearsay the deposition testimony of nine current and former Ford employees taken in similar cases. In response, Plaintiff relied on section 1291.

Continue reading “California Supreme Court Set to Decide How Defense Counsel Approach Defending Company Witness Depositions”

Itemize Damages or Waive Appeal? Pennsylvania’s Supreme Court Will Consider Whether Failure to Request an Itemized Verdict Waives the Right to Challenge an Award on Appeal

In many personal injury cases, including products cases, the most significant exposure is pain and suffering or similar damages that cannot readily be measured in dollars. Juries are usually constrained by specific testimony or documentary evidence in awarding lost income, medical expenses, or other losses that can be measured specifically, but awards for pain and suffering and similar damages are constrained only by jurors’ subjective views (and usually permissive standards of legal review such as whether the award “shocks the conscience”).

Not surprisingly, when large verdicts are appealed, the damages arguments often focus on the excessive amounts of pain and suffering or similar awards. But a recent order from Pennsylvania’s highest court carries a warning for defendants, as the Court agreed to consider whether a failure to demand an itemized list of each category of damages on the verdict sheet waives defendant’s right to challenge the award.

Continue reading “Itemize Damages or Waive Appeal? Pennsylvania’s Supreme Court Will Consider Whether Failure to Request an Itemized Verdict Waives the Right to Challenge an Award on Appeal”