Assessment & Discovery Strategy in Strict Products Liability Cases

A Methodical Approach Can Make All the Difference in High-Stakes Products Litigation

By Tobin Ellis & Santo Riccobono
Ellis Riccobono LLP

Strict products-liability litigation occupies a unique space in American jurisprudence, blending consumer-protection principles with the realities of modern manufacturing and distribution. Plaintiffs who bring such claims are relieved of proving negligence; instead, they must demonstrate that a product was defective and caused injury when used in a reasonably foreseeable way.

Defendants, by contrast, must contend with the reality that fault is irrelevant and must instead concentrate on attacking defect and causation evidence, mitigating damages, and asserting statutory or common-law defenses. Because these cases often involve highly technical subject matter, substantial damages, and corporate defendants with vast resources, assessment and discovery strategy becomes paramount.

Unlike negligence-based claims, where the focus is on whether a party exercised reasonable care, strict liability shifts the spotlight to the product itself and whether it was defective in design, manufacture, or lacked adequate warnings. This framework influences every stage of litigation from the initial case assessment to the extensive discovery process that ultimately shapes trial strategy.

This article explores the assessment and discovery strategy in strict product liability cases, analyzing key considerations for the participants. It examines the initial evaluation of claims and defenses, the evidentiary burdens that structure discovery, tactical use of written and deposition discovery, the role of experts, and the importance of early motion practice. A methodical approach to assessment and discovery can make the difference between success and failure in this high-stakes area of litigation.

The nature of strict products liability

The “strict products liability” theory of recovery exposes a broad range of defendants to legal accountability for “defective” products. Liability attaches upon proof of the product “defect” and a sufficient causal connection between defendant, the product and plaintiff’s injury. (Romine V. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1000 [“In order for there to be strict liability, the product does not have to be unreasonably dangerous – just defective”]). Unlike negligence, the strict-liability cause of action does not require proof of “duty” and “breach” (conduct falling below the applicable “reasonable” standard of care). In other words, negligence focuses on “reasonableness” of the defendant’s conduct; but strict liability ordinarily is predicated solely on the nature of the product (although defendant’s conduct becomes important in “failure to warn” strict liability cases). (See generally, Carlin v. Sup.Ct. (Upjohn Co.) cite_start 13 Cal.4th 1104, 1110-1115; Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30, 33-34).

Courts generally recognize three primary theories of defect:

Design defect – The product was inherently unsafe due to its design, even if manufactured according to specifications. A claimant may proceed under the consumer expectation test (CACI 1203) and/or the risk benefit test (CACI 1204).
Manufacturing defect – The product deviated from its intended design due to errors in the manufacturing process.
Failure to warn/marketing defect – The product lacked adequate warnings or instructions regarding foreseeable risks.

Understanding which defect theory (or theories) applies is crucial during case assessment. Discovery must then be tailored to develop evidence supporting that theory. Election of theories is not mandatory. For instance, both tests for proving a design defect may be presented by a plaintiff to a jury. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1126.). It should be noted, however, that at trial, presentation of both to the jury allows expert testimony that muddies the water on what may otherwise be a clean consumer expectation test case with risks and benefits of the design.

Case assessment

Plaintiff’s initial assessment For plaintiffs, early case assessment involves more than identifying a defective product and an injury. Counsel must evaluate whether the facts fit into a viable theory of strict liability and whether the evidentiary burdens can realistically be met. Key considerations include:

Product identification – The plaintiff must establish that the defendant manufactured, sold, or distributed the product.
Defect theory selection – Counsel must determine whether to pursue design, manufacturing, or failure-to-warn claims, or a combination.
Causation evidence – The plaintiff must show not only that the product was defective, but that the defect was the proximate cause of the injury.
Alternative explanations – Plaintiffs must anticipate defenses such as product misuse, alteration after sale, assumption of risk, sophisticated user, or comparative fault.
- If there is a potential for a plaintiff to be determined to have misused the product, the plaintiff should be prepared to embrace these bad facts, lean into them and develop a strong argument on foreseeability of the misuse to dissuade the defendant from making the claim.

In the vast majority of cases, step one is securing the actual injury-causing product. The failure to secure the defective item can prove fatal to the claim. See Stephen v. Ford Motor Co. in which the court excluded testimony of two plaintiff experts in a tread separation suit. The trial court and appeals court made findings that an expert’s opinions lacked foundation since they were based upon other incidents that were not a substantially similar product and photographs taken of the separated tire tread were amateurish. The fact that the expert had not examined the tread himself undercut the failure mode promoted.

Early action during the investigation is tantamount to success. For instance, again using a tire-tread separation case as an example, the CHP may secure the failed tread and throw it into the trunk of the vehicle to keep the evidence together in the tow yard. However, this is not always done, and the tread might be discarded along the roadside. This creates a situation where the Plaintiff’s lawyer, investigator and/or expert will need to drive to the location of the scene to retrieve the tread. Early and adequate assessment typically requires reviewing client medical records, obtaining the product, and conducting preliminary expert consultations to evaluate defect theories. It is also advisable to secure an exemplar product to compare to the actual product, as well as any packaging, manuals, brochures, warning labels, designs and specifications.

Defendant’s initial assessment For defendants, assessment focuses on identifying potential exposure and defenses. Important steps include:

Chain of distribution – Determining whether the defendant actually placed the product into the stream of commerce.
Product preservation – Locating and preserving exemplars, design specifications, and production records.
Defect challenges – Identifying whether the plaintiff can plausibly establish defect and causation.
Statutory or doctrinal defenses – Assessing whether statutes of limitations, statutes of repose, or preemption doctrines apply.
Insurance and indemnity – Reviewing product liability insurance coverage and potential indemnification obligations (i.c., spreading risk through contracts requiring a manufacturer to indemnify the distributor, or vice versa).

Pre-filing discovery

Discovery typically involves written discovery, depositions, product testing, and expert disclosures. However, independent sources are often a treasure trove of information. For instance, the CPSC (Consumer Product Safety Commission) is an independent agency of the United States government that seeks to promote the safety of consumer products by addressing “unreasonable risks” of injury; developing uniform safety standards; and conducting research into product-related illness and injury. By utilizing its free online database, parties are able to investigate recall information that can prove your case. Examples of recalls issued in September 2025 include the following:

Persilux Brand Zebra Blinds Recalled Due to Strangulation and Entanglement Hazards and Risk of Serious Injury or Death: Violates Federal Rule for Window Coverings; Sold on Amazon.
Mad Rabbit Recalls “RELIEVE” Lidocaine Numbing Cream Due to Risk of Serious Injury or Death from Poisoning to Young Children.
Sunbeam Products Recalls More than One Million Oster French Door Countertop Ovens Due to Burn Hazard (https://www.cpsc.gov/Recalls). A consumer class action has recently been filed with allegations similar to the last of these recalls.

For those investigating auto-defect cases, NHTSA supplies useful information as well. The National Highway Traffic Safety Administration is part of the Department of Transportation. It describes its mission as being to “save lives, prevent injuries, reduce vehicle-related crashes”. Recall information and the timing thereof go to both the existence and evidence of a defect, and if provided to Plaintiff, arguably comparative fault for continuing to use the product unreasonably.

The FDA is designed to protect the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines, biological products and medical devices. It is also responsible for the safety and security of our nation’s food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products. Recalls of these products are frequently issued and valuable for the reasons stated previously.

Before initiating a lawsuit, it is incumbent upon the plaintiff’s lawyer to create a file that will demonstrate knowledge of the product at issue. Often, it is a difficult task to manage because the defendant is in possession of the pre-market testing, performance data, design specifications, and product history (inclusive of improvements). This requires the plaintiff to get creative. Attending trade shows, subscribing to trade publications, reviewing product advertising and the manufacturer’s website are good places to start. Product manuals are often online for customer service purposes and design/part specifications are also available through authorized repair/service vendors.

Often, valuable information is a mouse click away. Products, and product improvements, are reviewed by industry enthusiasts who post their analysis of a product on platforms like YouTube. Moreover, the continual quest to obtain positive reviews permits fertile ground for investigation. For instance, in one ongoing case, the manufacturer denied any knowledge of its product failing. However, the product is sold by a very large box store that permits consumers to rate the products purchased at the store and comment on their experiences. Despite the denial of any prior complaints, there were a multitude of them posted by consumers on the distributor’s website. In fact, the manufacturer’s customer-service representative had responded to several complaints, thereby undermining the defense position that there were no known failures.

Written discovery

Discovery in strict products-liability cases is not just about information gathering; it is about building a coherent narrative. Each request, deposition, and expert engagement should serve the ultimate goal of proving a product defect that caused injury. Plaintiffs aim to uncover evidence of defect, knowledge, and safer alternatives, while defendants strive to expose misuse, lack of defect, or alternative causation. Both sides must also manage the cost of discovery, which can easily run into millions in complex cases.

Interrogatories Interrogatories lock parties into positions early, creating impeachment opportunities at deposition or trial. They can also provide opportunities to obtain information for deposition that can help reveal information not always available from the defendant directly. While compound, here are some bullet points to get you started on your approach and what to expect:

Plaintiff to Defendant: “Identify all safety testing conducted on the product prior to its release, including dates, methodologies, and outcomes”.
Plaintiff to Defendant: “Identify all supervising safety engineers, directors of research and development, project directors, third-party product testing entities for the subject product from its inception until the present”.
Plaintiff to Defendant: “Identify all modifications or improvements to the product from its inception until the present”.
Plaintiff to Defendant: “Identify all prior lawsuits, complaints, claims for the product potentially causing and/or causing injury”.
Defendant to Plaintiff: “Describe in detail the circumstances of your use of the product, including all persons present, instructions reviewed, and modifications made”.

Requests for production These are often the most contentious. For plaintiffs, the goal is to access “the paper trail” of design choices, testing, and corporate awareness of risks. For defendants, the challenge is producing responsive materials without compromising trade secrets or disclosing irrelevant information. Protective orders, “attorneys eyes only” designations, and claw-back agreements for inadvertent privilege waivers are common tools. The Los Angeles Superior Court has two form protective orders that are a good starting point for practitioners not familiar with the optional designation formats and customary provisions. They can be found at: https://www.lacourt.ca.gov/pages/lp/civil/tp/tools-for-court-users-and-attorneys/cp/model-protective-orders.

Requests for admission Admissions can streamline issues for trial – for example, securing acknowledgment that the defendant designed and sold the product, or that a specific warning label was or was not in place at the time of sale.

Depositions: Strategy and tactics

Depositions are the crucible of strict liability litigation.

Plaintiff depositions Defense counsel may probe prior accidents, familiarity with warnings, or post-sale modifications. Plaintiffs must prepare clients to withstand questioning on potentially embarrassing or damaging topics (e.g., not reading the manual or seeing a warning label clearly displayed on the product).

Corporate-designee depositions Plaintiffs leverage PMK and/or 30(b)(6) depositions to force corporations to articulate official positions. Defendants must carefully select and prepare designees to drive their narrative.

Engineer, project manager, and scientist depositions The information gleaned from these employee depositions is often much more valuable than the company-designated representative. Often the PMQ is a company employee who is from central casting, savvy in litigation, and who has limited knowledge related to the product or issues in the case. This category is sometimes even more productive for the plaintiff, if these individuals are no longer employed by the company. As allegiances might fade, former employees who fulfilled these roles, the identity of whom you already asked for in interrogatories (see supra), can provide conflicting information from the PMK, thereby driving a wedge between fact and the company narrative promoted by the defense.

Given that products sold in the U.S. marketplace are produced worldwide, consideration should be given to the viability of taking depositions related to such products. For instance, while Code of Civil Procedure section 2025.250 permits a plaintiff, at his/her option to force a deposition within 75 miles of any business office in California, or within the county where the action is pending, depositions of employees of the foreign company not designated as the PMK will likely have to be deposed where they are located. (Toyota Motor Corp. v. Superior Court, (2011) 197 Cal.App.4th 1107, 1110 [Japanese residents who were employees of defendant corporation could not be compelled to provide deposition testimony in California]). However, if defendant’s employees are in a location where depositions are not permitted, like the People’s Republic of China, where it is illegal to participate in a deposition for use in a foreign court, the rationale of Toyota may not apply. For instance, I have obtained an order that a company employee based in Shanghai must be produced in Hong Kong for deposition, because depositions are not prevented by law there. (Glass v. Superior Court, (1988) 204 Cal.App.3d 1048, 1052-1053, 251 [setting forth rule that court ordered travel to California can be appropriate]).

Product testing and inspection

Product inspections may involve destructive testing, which raises fairness concerns. Common protocols include:

Advance notice to all parties.
Joint observation or videotaping.
Retention of samples. Failure to follow protocols can result in spoliation claims and sanctions.

Expert discovery

Because strict liability often hinges on technical questions, expert selection is critical. Plaintiffs should seek not just qualified experts, but those who can explain complex issues to a jury. If you are having a difficult time finding an expert, consider contacting someone in the engineering, bioengineering, or chemistry department of the university near the courthouse. These professors often have experience testifying, practical and theoretical knowledge of the subject matter, and an ability to explain it in relatable terms. (Or sometimes they don’t, because they think people should already have a foundational understanding of very complex matters) .

Defendants often engage multiple experts – engineers, statisticians, warnings specialists – to mount a multi-pronged defense. Cross-examination of experts is equally strategic. For instance, defendants may attack feasibility of alternative designs by questioning whether the proposed design was commercially viable at the time of manufacture. Plaintiffs may counter by showing minimal cost differentials for safer alternatives. Expert testimony is often decisive in strict products-liability cases. Experts may include:

Design engineers – Evaluating design alternatives and feasibility.
Manufacturing specialists – Assessing whether the product deviated from specifications.
Warnings and human factors experts – Analyzing adequacy of warnings and user interactions.
Medical experts – Addressing causation and damages.

Strategically, parties should identify and consult with experts early, even before formal disclosure deadlines, to shape discovery requests and deposition strategies. The careful practitioner should know what standard applies to the admissibility of a retained expert’s testimony long before trial begins. A successful challenge to the admission of an expert’s opinion can end the case before it ever reaches a jury. For example, experts may be the sole causation witnesses in product cases, and a well-aimed motion for summary judgment or motion in limine challenging the admissibility of the expert opinion can deprive the plaintiff of proof that a product caused the plaintiff’s injury. Likewise, if a plaintiff’s causation expert survives such a challenge, the stage can be set for settlement, as well as the filing of subsequent lawsuits by other plaintiffs claiming to suffer from the same or similar injuries caused by the product.

Challenges to causation experts are now commonplace in product liability cases, especially in mass tort and multidistrict litigation. Indeed, courts often use test cases (“bellwether cases”) in pattern litigation (such as mass-tort MDLs) to test the validity of causation theories relatively early in the life cycle of these disputes. For instance, Snyder ex rel. Snyder v. Sec’y of Health & Hum. Servs., 88 Fed. Cl. 706 (2009), one of three bellwether cases, was picked to manage disposition of 4,700 claims alleging that childhood vaccines caused the petitioners’ autism or similar neurodevelopmental disorders. Snyder was specifically selected “to test the first theory of causation advanced by the Omnibus Autism Proceeding petitioners. After hearing expansive expert testimony, it was determined that causation could not be established. (Id. at 712.) .

Discovery disputes and motion practice

Given the stakes, discovery disputes are almost inevitable. Common battlegrounds include:

Scope of similar incidents: Plaintiffs want broad discovery; defendants seek to narrow it to substantially similar accidents or the exact same product.
Privilege logs: Courts should require detailed logs for withheld documents; vague entries invite challenges.
ESI protocols: In large cases, parties negotiate search terms, custodians, and data formats.

Motions to compel, protective orders, and sanctions hearings consume significant time. Savvy counsel plan ahead, negotiating reasonable limits while preserving the ability to seek court intervention when necessary. However, recalcitrant defendants often force the need for “discovery-on-discovery”. For instance, policy limit information is often incorrect when responding to written discovery as there is a failure to disclose a self-insured limit, or an excess/umbrella policy. Whether the failure to disclose accurate information in written discovery is to prevent an accurate policy-limit demand, thereby potentially opening the policy, or is the result of miscommunication, a PMK deposition of a company representative on insurance has always ferreted out the real coverage in this practitioner’s experience. In product cases, discovery-on-discovery may relate to the authenticity or veracity of emails, plan specifications, or any number of matters covered by ESI. Therefore, and unfortunately, depositions of the custodian of records for the defendant corporation are sometimes required and often revealing when a more forthright production is prompted by the same. As sad as it may be, a deposition is often much better at evoking the truth than a verification.

Strict products-liability discovery often sparks disputes over:

Trade secrets and confidentiality – Courts must balance plaintiff’s need for design documents with defendant’s interest in protecting proprietary information.
Scope of prior incidents – Plaintiffs may seek broad discovery of prior claims, while defendants argue for limitations based on similarity and temporal scope.
Privilege issues – Internal communications may implicate attorney-client privilege or work-product protections, especially in cases involving recalls or regulatory investigations.
ESI and data production – Modern product design often involves extensive electronically stored information (CAD files, testing simulations), raising issues of format, cost, and proportionality. Be prepared and resilient.

Strategic considerations

Timing and sequencing

Plaintiffs may strategically seek early depositions of corporate witnesses to lock in testimony before defendants develop defenses.
Defendants often push for early expert disclosures to test the viability of plaintiff’s theories.

Technology in modern discovery Electronic discovery and technology-assisted review have transformed product liability discovery. Predictive coding, metadata analysis, and digital reconstruction of accident scenarios play increasing roles. Both sides must invest in litigation technology to manage massive volumes of data efficiently. An e-discovery plan must be tailored to the size and scope of the litigation. No one plan is right for all matters. A number of litigation-specific factors should be considered when preparing and implementing an e-discovery plan. For example, it should be considered whether the initial case(s) may spread to other related products, thereby expanding the scope of potentially relevant documents. Additionally, larger cases often involve numerous opposing counsel, each with differing opinions as to the appropriate manner of production.

For example:

Certain opposing counsel may demand a production in “native format” while others may prefer conversion to PDF or TIFF images.
Requests for metadata fields may be all inconsistent. One side may simply request a few basic metadata fields (for example, creation date, author), while another opposing counsel may demand that all metadata be produced.
Certain counsel may insist on production by request number, while others agree to production as documents are kept in the usual course of business.

Reconciling all opinions into one method of production can prove extraordinarily challenging. Nevertheless, reaching agreement up front among counsel and judges as to the method of production has many benefits, including significant cost reduction. Accordingly, all efforts should be made to come to such an agreement.

Practical checklist for practitioners

Early product preservation: Secure the product promptly and consider spoliation risks.
Defect theory roadmap: Align discovery with the specific theory (design, manufacturing, or warnings).
Expert involvement: Engage experts early to shape discovery requests.
Document management: Implement systems for reviewing and producing ESI efficiently.
Prepare clients thoroughly: Both plaintiffs and corporate designees must be prepared for exhaustive deposition questioning.
Anticipate protective orders: Trade secret issues are inevitable; plan to negotiate fair terms.
Settlement timing: Reassess settlement posture after key depositions and expert reports.

Conclusion

Assessment and discovery in strict products-liability cases demand meticulous preparation, technical expertise, and strategic foresight. For plaintiffs, the challenge lies in uncovering sufficient evidence of defect and causation despite the defendant’s protective instincts over proprietary data. For defendants, the challenge is to manage discovery obligations while minimizing risk and developing robust defenses. Ultimately, successful navigation of assessment and discovery requires collaboration with experts, effective motion practice, and an appreciation for how each discovery choice will play out before judge and jury. Because strict product liability litigation is as much about science and engineering as it is about law, litigators must combine legal acumen with technical savvy to prevail. When executed strategically, assessment and discovery do more than prepare a case for trial; they set the stage for resolution, whether by settlement, dispositive motion, or jury verdict. Success in this domain depends on mastering not only the substantive law of strict liability but also the procedural and tactical realities of modern litigation.