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Consumer Warranty Law: 13.8.2 Jury Selection

What kind of jurors are sympathetic to warranty claims? One experienced practitioner finds union members sympathetic, even though they may build the very product that the case involves. Most are consumers and many have had a bad experience with the products they build.

Consumer Warranty Law: 13.8.3.1 Introduction; Motions in Limine

This subsection addresses a variety of issues that arise in the presentation of evidence in warranty cases. It is not a survey of the law of evidence, but focuses on a selection of issues that are particularly relevant to warranty cases. Evidentiary issues in proving the value of the goods, including admission of repair estimates, are discussed in § 10.4, supra.

Consumer Warranty Law: 13.8.3.2 Recall Notices

Recall notices are admissible to prove that a defect existed at the time the vehicle left the manufacturer, once the plaintiff independently proves that there is a defect.389 But a recall notice that was issued after a malfunction occurred may be excluded if it is offered to show the existence of a defect.390 When recall notices are admissible, some courts hold that they fall within the exception to the hearsay rule for admissions by a party-opponent.391

Consumer Warranty Law: 13.8.3.3 Evidence of “As Is” Clauses in Fraud Cases

Because fraud is not based on the contract, contractual warranty disclaimers should be irrelevant in fraud cases.393 In Slusher v. Jack Roach Cadillac, Inc.,394 a used car salesman assured the buyers that a van had not been wrecked and was in excellent condition, and that its odometer reading was correct. All of these assurances were false.

Consumer Warranty Law: 13.8.3.4 Use of Word “Lemon” at Trial

Defense attorneys occasionally file motions in limine asking the trial court to prohibit the use of the word “lemon” at trial, on the ground that the term is inflammatory and prejudicial. This specious argument is countered by the fact that the term “lemon” to describe a defective vehicle is found in most dictionaries395 and is used in many state statutes.396

Consumer Warranty Law: 13.8.3.5 Evidence of Other Bad Acts

Evidence of similar acts by the same seller can be compelling. Evidence of other bad acts is clearly admissible on fraud counts to show intent, preparation, or plan.399 It is also admissible in support of a claim for punitive damages, especially in light of the United States Supreme Court’s rulings in BMW of North America, Inc. v. Gore400 and State Farm Mutual Automobile Insurance Co. v.

Consumer Warranty Law: 13.8.3.6 Warrantor’s Subsequent Remedial Measures

The general rule is that evidence of subsequent remedial measures is not admissible to show negligence, the existence of a defect in a product or a product’s design, or the need for a warning or instruction.412 The evidence may be admitted, however, to prove ownership, control, or the feasibility of precautionary measures, if controverted, or for impeachment.413

Consumer Warranty Law: 13.8.3.7 Demonstrative Evidence

Demonstrative evidence can be very effective.420 Color charts, with legible print and graphics, can guide the jury through the product’s repair chronology or warranty history, and itemize the damages. Blow-ups of key portions of documents are useful as focal points for testimony and argument. Many courtrooms can accommodate equipment to project documents and exhibits on a screen or on individual computer monitors for the judge, jury, and opposing counsel. A PowerPoint presentation can be very persuasive.

Consumer Warranty Law: 13.8.3.8 Vehicle’s History

Evidence of a vehicle’s collision history, odometer history, and buyback history is relevant and admissible in suits based on nondisclosure or misrepresentation of these facts. The title history, showing the number of times the vehicle has been transferred, or title branding may even be relevant to the question of the vehicle’s condition.

Consumer Warranty Law: 13.8.3.10 Records of Vehicle’s Condition and Performance

Records in the manufacturer’s possession regarding the condition of the vehicle may be admissible as business records even if they are generated by independent companies. In one case a manufacturer hired a company to drive a motor home back from the factory after a repair attempt.423 The manufacturer in such cases routinely required the driving service to report back the motor home’s condition.

Consumer Warranty Law: 13.8.4.1 Federal and State Standards

Special rules apply to the admissibility of expert testimony, in large part because an expert witness’s opinion can be admitted into evidence, while opinion statements made by most other witnesses are excluded. Admissibility of expert witness testimony is determined by a court’s rules of evidence: Federal Rule of Evidence 702 in federal courts and state rules in state courts. The federal rule provides:

Consumer Warranty Law: 13.8.4.3 The Daubert Standard and Federal Rule of Evidence 702

Under Federal Rule of Evidence 702 a witness qualified as an expert by knowledge, skill, experience, training or education may present expert testimony if “(b) the testimony is based upon sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the witness has applied the principles and methods reliably to the facts of the case.”446

Consumer Warranty Law: 13.8.4.5 Burden of Proof and Conduct of the Daubert Hearing

Failure to hold a live pre-trial Daubert hearing may be an abuse of the trial court’s discretion, depending on the state of the record.471 The proponent of the expert’s testimony bears the burden of going forward and must present at least a prima facie case that the expert’s testimony is admissible. Whether the burden then shifts to the opponent, and which party ultimately bears the burden of persuasion, is unclear.472

Consumer Warranty Law: 13.8.5 Presenting the Testimony of the Plaintiff’s Expert

The consumer’s expert witness should be prepared to explain and justify the expert’s inspection and analysis of the defects, explaining the methodology and reasoning at every step of the inspection and accounting for all alternative explanations for the product’s problem. For many experts a set of diagnostic or investigatory procedures is so ingrained that they will not be able to explain why they take those steps without some research. The expert should be prepared to refer to industry standards, such as a repair manual or a repair database, whenever possible.

Consumer Warranty Law: 13.8.6.1 General Rules for Cross-Examining the Opponent’s Expert Witness

The first rule for cross-examining the opponent’s expert is to know the expert. Review the expert’s resume, written work and testimony on prior occasions. Consider retaining a consulting expert to evaluate the report of the opponent’s expert. Find out as much as possible about the expert’s credentials, opinions, and testimony in prior cases through interrogatories, pre-trial disclosures, depositions, and internet searches.

Consumer Warranty Law: 13.8.6.2 Bringing Out Testimony That Supports the Consumer

Sometimes cross-examination of the opponent’s expert witness can be used to support the consumer’s own case. Supportive testimony by the opponent’s expert is particularly helpful to point to in closing argument. Any supportive cross-examination should be done before any cross-examination that seeks to discredit other portions of the expert’s testimony.

Techniques to bring out supportive testimony from the opponent’s expert witness include:

Consumer Warranty Law: 13.8.6.3 Discrediting the Opposing Expert on Cross-Examination

When seeking to discredit the opposing expert on cross-examination, the cross-examiner should avoid reviewing and repeating areas of harmful testimony already covered on direct examination. Arguing with the expert in front of the jury is also rarely effective.

Effective techniques for discrediting the opposing expert through cross-examination include:

Consumer Warranty Law: 13.8.8 Jury Instructions and Forms

Many experienced practitioners begin drafting their jury instructions at the outset of the case, or even before filing. Having draft jury instructions at hand helps organize and focus discovery and trial preparation. One source of sample jury instructions is reported appellate decisions upholding the trial court’s instructions.492 Sample jury instructions may be found in Word format as companion material to the digital version of this treatise.