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INTRODUCTION
"34 MILLION DOLLARS FOR PLAINTIFFS!!!" screams the opening page of the web site of one of the many big-advertising plaintiffs' attorneys specializing in the representation of burn victims. In this case, two electricians who reportedly suffered second and third degree burns to 65% and 40% of their total body areas, respectively, shared this massive award, in addition to nearly 4 million dollars they received in pretrial settlements. In case the reader doubts that such an award would stick, the site assures that the verdict was "affirmed in full on appeal."
Burn injuries are recognized as being among the most painful and disfiguring of all injuries. The pain associated with a burn injury is both physical and emotional. After enduring nearly unimaginable physical pain during recovery, the burn victim carries scars for the remainder of his or her life, scars that may erase one's former identity and individuality, replacing them with the status of outcast or freak. Scars may also impact mobility and function of the head, neck and limbs.
This reality strikes a resonant chord with juries. judges may endlessly admonish against deciding cases on the basis of sympathy. jurors are nevertheless human and they may not be able to exclude their humanity during their hearing of the case or, in particular, during their deliberations. Sympathy can and does override even the best-prepared and best-tried defense cases. This is particularly true where the burn victim is a child.
Consequently, preparation of the defense in all its aspects - from initial investigation to development of liability defenses to a strategy on limiting damages -must be meticulous. Only through intensive preparation can the defendant hope to position the catastrophic burn injury case for the best possible outcome, whether that outcome is achieved through pre-trial alternative dispute resolution or at trial.
The following is a framework of strategies for conducting discovery and preparing for the trial of a catastrophic burn injury case, and in particular, one that arises from the products liability context. These strategies draw upon the interrelated and complementary principles found in NFPA 921, Guide for Fire and Explosion Investigations, the growing body of law surrounding spoliation of the product and the fire scene, and the holdings and progeny of Daubert v. Merrell Dow...