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The Litigation Consulting Report

Product Liability Demonstratives - Defects and Failure to Warn

Posted by Ken Lopez on Tue, Oct 18, 2011 @ 10:45 AM

Demonstratives can frequently be used very effectively in product liability litigation, in which the issue is whether a product was manufactured negligently, causing harm – or in some cases, whether a product that was manufactured and used properly still caused harm to a consumer that leads to liability on the part of the manufacturer or seller.

The demonstrative below shows that in order to get the same alcohol consumption as six regular beers, a consumer would have to drink 15 light beers – which, taken together, have more calories than the six regular beers. This "compensation" effect is an issue in some product liability cases.

demonstratives product liability demonstrative evidence 

As a popular website notes “People tend to drink more light beers than regular beers. It is because the consumer will have the need or urge to drink more light beer because drinking a single bottle of such won’t give the same effect as drinking a bottle of regular beer . . . because the alcohol may have been reduced significantly, the drinker tends to take in more light beer just to achieve that certain ‘drunk’ effect.” 

The demonstratives below introduce the subject of “pack years” to the jury. In tobacco litigation, the number of “pack years” is relevant to the diseases caused by tobacco. A pack year is the number of cigarettes smoked annually by a person who smokes a pack a day, every day. If someone smokes two packs a day, he or she consumes a “pack year” in just six months.

By using a size comparison to the Golden Gate Bridge, the demonstrative shows how many cigarettes are included in 30 pack years or 50 pack years and how large a volume those cigarettes would occupy. 

A person who has smoked two packs of cigarettes per day for 10 years is considered to have a 20 pack-year smoking history. While the risk of lung cancer is increased with even a 10 pack-year smoking history, those with 30 pack-year histories or more are considered to have the greatest risk for the development of lung cancer.

The demonstrative below was introduced in litigation concerning MTBE, a gasoline fuel additive that is often noted as a pollutant of ground water. It shows how small a percentage of ground water samples were actually shown to be polluted by MTBE at a level that is considered possibly dangerous to humans. The number of harmful readings appears as one tiny dot, or three tiny dots, in a large green field of safe levels of this chemical. This demonstrative graphic effectively summarizes the testimony of an expert.

MTBE contamination demonstratives 

The demonstrative exhibit below shows that neglecting to use a booster seat is an unsafe practice – just as riding a bicycle without a helmet and other protective devices is also unsafe.

booster seat demonstratives

The demonstrative below arranges preferred scientific tests in descending order of accuracy. We used a vertical printed trial board format to emphasize the preeminence of epidemiological testing in this case. While plaintiffs attempted to make the case that laboratory and animal testing were sufficient, the epidemiological science favored our defense position.

demonstratives epidemiology science
When complexity must be simplified and laypersons are called upon to decide whether a product has caused harm, demonstratives are a must.  Simple is best.  Fewer is more. However, getting to simple and arriving at fewer almost always requires lots of hard work and creativity which takes time. Often the demonstratives presented at trial are just the tip of the iceberg compared to what was prepared. This reflects effective litigation consulting.


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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Science, Automobile Litigation, Product Liability, Information Design

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

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Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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