Comments on: The Pop Tort: John Edwards and the Valerie Lakey case

By: Joel Smith

Joel Smith — Fri, 22 Feb 2008 12:10:13 +0000

Good points OBQuiet. I was more commenting on the admissibility of the evidence at trial based on the Rules of Evidence. It’s a defense in product liability suits to prove that the product couldn’t have been made safer, or that even if it could have been, it would have been unreasonably costly to do so. Thus, a pre-injury remedial measure is relevant to rebut such defenses. (A post-injury remedial measure is inadmissible.) But a juror would be more than reasonable in thinking the way have have — that such a measure is by no means conclusive proof that the product was unsafe.

By: OBQuiet

OBQuiet — Fri, 22 Feb 2008 08:35:18 +0000

Joel,

I am no lawyer, so your points on the law may well be correct. The problem with those points is that not all changes are for safety reasons.

1. There is no evidence that the product is safer. Even if fewer accidents of this sort happen, it is more likely that the decrease was caused by POOL OWNERS fear of liability driving them to do better maintenance. Does anyone think it improved because they swim to the bottom of the pool, notice the warning embossed on that cover and come back with a screw driver?

2. Lawsuits change the cost equation.

So changing how the warning was delivered cannot be taken as evidence that the product was unsafe. It is more likely evidence that the company felt it could save costs overall by spending more and staying out of court defending itself from unfounded lawsuits.

By: Joel Smith

Joel Smith — Thu, 21 Feb 2008 19:50:37 +0000

iNonymous:

If memory (i.e., of the MBE) serves me correctly, subsequent remedial measures are only inadmissible against a defendant to the extent the measure is taken after the injury. If a product is changed pre-injury, it’s evidence that: (1) the product could have been made safer; and (2) that the defendant believed that it was worth the cost to make it so. (Of course, N.C. evidence law may be totally different.)

By: iNonymous

iNonymous — Thu, 21 Feb 2008 18:37:22 +0000

The fact that the product was later changed is nt evidence that the product as it existed at the time of the injury was defective. I thought this was black letter evidence law.

By: William Nuesslein

William Nuesslein — Thu, 21 Feb 2008 15:42:00 +0000

Thanks to E-Bell for the reference. It seems to me that the cover was being removed by the children. Why would they do that? To play with the vortex. The life guards must have seen that. I wonder if the actual harm to the child was done by those pulling her away from the drain? A rational analysis would have some measure of exposer. There were a dozen incidents before the subject tragedy, but what defines a problem and how many pool years were covered. The jury failed in this case. Gosh it is a very sad case!

By: duaneage

duaneage — Thu, 21 Feb 2008 13:54:11 +0000

the thought of Edwards running justice is chilling. Another great example is his “channeling” closing arguments when he claimed to have children speaking through him

By: E-Bell

E-Bell — Thu, 21 Feb 2008 13:05:04 +0000

William, the article says that "children" removed it. I imagine that no one saw who removed the drain cover, but the operative theory is that it wasn't properly secured. This site gives a good accounting, as documented by contemporary press articles about the case. It's incredibly clear that the fault lay not with any design flaw - but with negligent maintenance. The settling defendant(s) were at fault and the verdict against Sta-Rite was a travesty.

By: William Nuesslein

William Nuesslein — Thu, 21 Feb 2008 10:53:48 +0000

Great article,Ted!

Do you know who removed the pool drain cover or why?