USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
In a jury trial, the judge will preside over the trial and rule on all motions, including those for a directed verdict. A directed verdict motion asserts that the plaintiff has failed to meet their burden of proof at trial. 2.11 Appeal Mechanisms for Product Liability Claims There are no unique appellate procedures for product liability cases. In federal court cases, a party may appeal a final decision to a regional Circuit Court of Appeal. A decision is final when the court enters a final judgment (either through ruling on a dispositive motion or following a ver - dict). See Fed R Civ P 58. In some instances, a party may appeal a district court’s ruling through an interlocutory appeal. The Federal Rules of Appellate Procedure and local rules of individ - ual Circuit Courts of Appeal govern the appeal process. The appellate court will issue a ruling based on its review of the record, the parties’ appellate briefs, and oral argument. To challenge an appellate court ruling (or a state supreme court’s ruling if there is a federal ques - tion), a party can file a writ of certiorari to the US Supreme Court. The Supreme Court has discre - tion to grant or deny such petitions. In state court, there is typically a trial court, intermediate appellate court and high court. The appellate procedure is governed by the individu - al state’s rules of appellate procedure. 2.12 Defences to Product Liability Claims Affirmative defences to product liability claims are typically governed by state law and vary among jurisdictions. The defendant’s burden of proving an affirmative defence is by a pre - ponderance of the evidence. The following are
among the most common affirmative defences to product liability claims. Comparative/Contributory Negligence Most states follow comparative negligence principles, which means that the damages awarded will be apportioned based on the par - ties’ respective percentages of fault. The most common comparative negligence schemes are the pure and modified approaches. Under the pure comparative negligence rule, the plaintiff’s recovery is reduced by their percentage of fault. For example, if the plaintiff is 70% responsible for their damages, their recovery will be reduced by 70%. Under the modified comparative neg - ligence rule, the plaintiff is barred from recovery if they are found more than 50% at fault. A small number of states follow the contributory negli - gence rule, which means that the plaintiff cannot recover if they are found any amount at fault. Many states have rules or statutes that further define the scope of the comparative negligence defence. For example, in Massachusetts, the plaintiff’s comparative negligence is not a defence to a breach of implied warranty claim unless the plaintiff voluntarily and unreasonably proceeded to encounter the defect. Assumption of the Risk The assumption of the risk defence precludes recovery where a plaintiff voluntarily used a product when they were aware, or should have been aware, of a defect or other risk of harm, and nevertheless proceeded despite having that knowledge. Material Alteration The plaintiff is barred from recovery under this defence when it is established that the product was not in materially the same condition at the time of the incident as when it left the control of
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