Incriminating Emails: How Internal Communications Can Destroy Your Product Liability Case
Imagine a seemingly harmless email, a quick exchange between colleagues, becoming the linchpin that unravels your company’s defense in a product liability lawsuit. It sounds like a plot from a legal thriller, but in today’s digital age, it’s a stark reality. Internal communications, especially emails, can be a goldmine of incriminating evidence that plaintiffs’ attorneys will eagerly exploit. According to the Insurance Information Institute, juries ordered the highest verdicts in personal injury cases to those involving product liability in 2020, with the average award exceeding $7 million. This blog post will explore how internal communications can make or break a product liability case, offering insights and advice to protect your company.
The Double-Edged Sword of Internal Communications
Internal communications are essential for the smooth operation of any organization. They facilitate collaboration, disseminate information, and document decisions. However, these same communications can expose a company to significant legal risks if they contain careless, inaccurate, or misleading statements. Emails, in particular, are a fertile ground for potential liabilities due to their widespread use and the ease with which they can be misinterpreted or taken out of context. As Jef Feibelman, a partner at Burch, Porter & Johnson, notes, “it is now almost certain that thorough discovery in litigation will uncover damaging texts or emails”.
How Emails Become Incriminating
1. Admissions of Knowledge
One of the most damaging things an email can contain is an admission that the company knew about a product defect or potential safety hazard but failed to take appropriate action. For example, in Bowser v Ford Motor Co. (2022), internal Ford emails revealed that the company was aware of issues with certain engine parts but struggled to find the root cause. Some emails even suggested keeping this information secret. This type of evidence can be devastating in court, as it demonstrates a conscious disregard for consumer safety.
2. Disparaging Remarks and Callous Attitudes
Emails that disparage customers, blame injured parties, or reveal a callous attitude toward safety can also be highly damaging. Juries are more likely to award higher damages, including punitive damages, if they believe the company acted with malice or indifference. Alexandra Lahav, a law professor at Cornell University, advises being sensitive in emails, not calloused. Studies have shown that juries tend to rule against defendants when it’s shown that the culprit was involved in nefarious activity.
3. Evidence of Cost-Cutting Over Safety
Communications that suggest the company prioritized cost savings over safety can be particularly damning. For instance, Reese Cann, Assistant Vice President for Risk Control at Travelers, warns against decisions that indicate a manufacturer opted for a cheaper but less safe material or vendor. In the famous case of Grimshaw v. Ford Motor Co., evidence revealed that Ford calculated the cost of making fuel tanks safer but decided it was cheaper to pay for potential burn injuries and deaths. The jury was outraged by this revelation and awarded millions in punitive damages.
4. Failure to Warn
A “marketing defect,” or failure to warn consumers of potential risks associated with a product, is a common product liability claim. Emails can reveal that a company was aware of a risk but neglected to provide adequate safety information or warnings. In the Johnson & Johnson talcum powder lawsuits, plaintiffs alleged that the company knew about the asbestos risk in its baby powder for decades but failed to warn consumers.
5. Incomplete or Missing Components
Emails can highlight manufacturing defects, such as incomplete or missing components, that lead to disastrous consequences. Internal discussions about these oversights can be used to demonstrate negligence in the manufacturing process.
Best Practices for Email Communication
1. Assume Everything is Discoverable
The first rule of thumb is to assume that any email you send could be read by opposing counsel in a lawsuit. As Jeffrey S. Hood, a partner at Procopio, states, “You cannot always anticipate when a potential conflict will grow into litigation, but you can safely assume that any email correspondence that touches on any aspect of that litigation could be discoverable.”
2. Think Before You Send
Before hitting “send,” ask yourself if your email contains anything that could be construed as an admission of liability, bias, or prejudice. Avoid disparaging comments, profanity, and improper grammar. Treat each email as a stand-alone document that presents you as a serious and responsible professional.
3. Document Retention Policies
Implement and enforce a clear email retention policy. Retaining inappropriate emails beyond recommended timeframes can expose organizations to significant legal risks and complicate legal discovery processes.
4. Training and Education
Provide regular training to employees on appropriate email communication. Emphasize the importance of avoiding discriminatory language, harassment, and bullying in internal emails.
5. Monitor and Enforce
Implement monitoring mechanisms to detect and address violations of email policies promptly. This can help prevent inappropriate communications from escalating into legal liabilities.
6. When in Doubt, Talk it Out
Recognize that email is not always the best form of communication. Sometimes, it’s better to pick up the phone or have a face-to-face conversation. This can help avoid misunderstandings and ensure that sensitive topics are discussed in a more nuanced and confidential manner.
The Importance of Legal Counsel
Engaging legal counsel early on can help mitigate the risks associated with internal communications. Attorneys can provide guidance on drafting clear and accurate emails, implementing effective email policies, and responding appropriately to potential legal claims. Keeping outside legal counsel active in the thread discussion of the “issue” goes a long way to defeating claims of admissibility.
Real-World Examples
1. The McDonald’s Coffee Case (Liebeck v. McDonald’s)
Evidence showed that McDonald’s had received over 700 previous reports of burn injuries from its coffee but had not changed its policy. The jury found the company’s behavior reckless and awarded significant damages.
2. The Ford Pinto Case (Grimshaw v. Ford Motor Co.)
Internal documents revealed that Ford knew about the dangerous design of the Pinto’s fuel tank but chose to proceed with it to save money. This evidence led to a large punitive damage award.
3. The Roundup Lawsuits
Plaintiffs alleged that Monsanto knew about the health risks of glyphosate, the active ingredient in Roundup, but failed to warn consumers. Internal communications and marketing strategies were scrutinized to determine the extent of Monsanto’s knowledge and actions.
Conclusion
In today’s litigious environment, internal communications can be a company’s greatest asset or its Achilles’ heel. By understanding the risks and implementing best practices for email communication, companies can protect themselves from potentially devastating product liability lawsuits. Remember, every email you send is a potential piece of evidence. Think carefully before you hit “send,” and when in doubt, seek legal counsel.