An Unexpected Evidentiary Battleground

Ordinarily, the focus in a product liability case is on the defendant-manufacturer’s duty to design and manufacture a safe and useful product and to warn adequately of any risks associated with its use. But an interesting and unexpected battleground can arise from a tag-a-along consumer protection claim. Here is the scenario: Plaintiff, in an individual action, sues defendant-manufacturer for injuries allegedly sustained in connection with the use of defendant’s product. Plaintiff sues under traditional product liability theories as well as under the state’s consumer protection statute, which proscribes deceptive and misleading trade practices. In particular, plaintiff alleges a consumer fraud has occurred because she has been injured by a product that, she claims, had been sold in connection with deceptive sales practices; in this case, certain allegedly false or misleading advertisements.

Plaintiff has testified at her deposition that she has not seen or heard the advertisements in issue. Nevertheless, she proposes to admit the advertisements because, she points out, the state consumer protection statute under which she is suing does not require that she relied on the alleged misleading sales practice. (While the majority of courts hold that proof of actual reliance is not required under the state consumer protection statute, proof of reliance is required in some jurisdictions. Be sure to check your particular state’s consumer protection statute and interpreting case law.) Compare Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000) (no reliance required) and April v. Union Mortgage Co., 709 F. Supp. 809, 812 (N.D. Ill. 1989) (same) and Podolsky v. First Healthcare Corp., 58 Cal. Rptr. 2d 89, 98 (Cal. App. 1996) (same), with Pauley v. Bank One Colo. Corp., 205 B.R. 272, 276 (D. Colo. 1997) (reliance required) and TEX. BUS. & COM. CODE ANN. �17.50(a)(1)(B) (same). If the plaintiff succeeds, she would enjoy an evidentiary advantage, in that the potentially damaging advertisements will go to the jury and presumably influence their determination of liability on the product claims.