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Seven Criteria for Selecting a Product Liability Expert

Product liability litigation serves to resolve claims by a plaintiff against the producer of a product – and sometimes that producer’s suppliers, distributors and retailers as well – for losses associated with a product failure. Product liability lawsuits range from the highly celebrated, such as the famous (or infamous) McDonalds hot coffee case, to less publicized and more typical cases involving the malfunctions of consumer products in the home or the failure of industrial equipment in the workplace.

In the United States, product liability laws are established by the individual states, and the laws vary widely from place to place. Common product liability claims against manufacturers are negligence, strict liability, breach of warranty and the violation of specific consumer protection laws. Liability claims typically cite at least one of the following as the cause of mishaps leading to an injury or other loss: a design defect, a manufacturing defect or a failure by the manufacturer to adequately warn the user about product-related hazards.

Identifying the cause of a loss-producing incident on behalf of a plaintiff or refuting liability for an alleged cause on behalf of a defendant is typically a technical undertaking, requiring one or more specialized experts. Historically, an expert has been defined as anyone with knowledge of a specific subject that exceeds the knowledge of an “ordinary person”. Recently, however, the landmark Daubert and Kuhmo rulings by Federal appeals courts have established a gatekeeper role for lower court judges to guard against the entry of “junk science” in the courtroom. This has raised the bar for technical experts, requiring them to be more actively engaged in their casework than in earlier times, before the Daubert and Kuhmo rulings, when experts could and sometimes did rest on the laurels of a reputation established by their prior work.

How then is one to objectively judge the merits of an expert when seeking one for help in a product liability case? There are a handful of criteria worth considering. Following is a list of seven considerations, presented in no particular order, since the relative weight of each criterion will change, depending upon the specific facts or circumstances of a particular case.

1. Technical credentials – Education is the cornerstone of a technical expert’s curriculum vitae. A degree in a relevant subject earned at a nationally recognized university will give an expert some measure of immediate credibility. If the expert has one or more advanced degrees, that is even better. Typically, a well educated expert will be best equipped to guide his or her client through the technological issues of a product case. A record of an excellent education will also tend to elevate the quality and value, as perceived by the judge and jury, of all but the simplest observations, calculations and tests made by an expert.

Licensing by a state board, while usually not essential for an expert, further enhances credibility. A license is not an automatic outcome of education, but a credential that requires additional and continuing effort and expenditures by the licensee to be achieved and maintained. A license identifies the expert as one who regards himself or herself as a professional in a chosen field, and a license also imposes on the licensee explicit ethical responsibilities which enhance credibility.

Membership in professional societies may or may not enhance an expert’s technical knowledge. Merely paying annual dues to an organization and receiving a monthly magazine in return does little to add to one’s technical expertise. On the other hand, active involvement in a technical society’s committee activities and participation in its continuing education and certification programs is an excellent means for an expert to keep abreast with that which is state-of-the-art in a particular industry or technology.

2. Relevant experience – Experience generally complements education. In certain instances knowledge can only be gained through experience. The hands-on skills of an experienced welder, for example, are very different from a degreed metallurgist’s more cerebral understanding of metal behavior; and the two types of knowledge may not be interchangeable. That does not say, however, that experience which is useful in a particular product liability case can only be gained in the specific industry involved. An expert need not have worked in the water heater industry for many years in order to have a valid understanding of how a water heater works and what the practical consequences of a thermostat malfunction may be. A basic knowledge of physics is often all that is required to understand many products and their possible malfunctions, and such knowledge may have been gained and validated by experience in a variety of industries.

Where an expert has been employed can say as much about the expert as where he or she went to school. A stable work history that includes experience at a university or government research laboratory or employment with a Fortune 500 manufacturer lends credibility to the expert’s résumé. So does experience with any of a number of well recognized iconic technological institutions such as NASA or NASCAR. Service as a military officer or experience in law enforcement also lends gravity to an expert’s c.v.

3. Methodology – While education and experience indicate an expert’s potential, education and experience serve only as foundation and prelude for what the expert will do in a particular case. The expert must, in fact, do something; so it is reasonable to ask when evaluating a prospective expert, “What can you do in this case, and how will you do it?” As discussed earlier, the Daubert and Kuhmo rulings preclude the modern expert from saying, “This is so or that is so, because, trust me, I’m an expert.” In its gatekeeper role, the court can and will ask, “What have you done to demonstrate that what you say is so?” In response, the expert is obliged to describe specific, documented work – testing, analysis, measurement, or perhaps a survey relevant technical literature – which supports the expert’s opinions. Here the expert can routinely expect to see his or her methodology challenged as failing to meet vaguely defined Daubert criteria such as peer review or adherence to a predetermined testing protocol. While these challenges may reveal as much about the opposing counsel’s ignorance of the true intent of the scientific method as they do actual shortcomings in the expert’s work, such challenges go with territory, and the expert must be experienced and mature enough to take them in stride and respond to them effectively.

4. Access to tools – Given an expert’s obligation to do and document work to support his or her opinions in a case, the greater the variety of tools the expert has available, the more versatile and creative the expert can be in exploring and quantifying the behavior of a product in a given circumstance. The first essential tool the expert must possess is a solid grasp of the underlying science in a case – which could be physics, chemistry, electrical or mechanical engineering. Beyond that, access to state-of-the-art mechanical, optical and electronic measuring devices, cameras, computers, software and data logging equipment will enhance and leverage the expert’s investigative and analytical skills. Ready access to other ancillary resources such as dedicated and secure laboratory, machine shop and evidence storage facilities will further enhance the expert’s capabilities.

5. Communication skills – The impact of an expert’s opinions will only be as powerful as the expert is effective in communicating the meaning and relevance of his or her opinions and the work which supports them. Communication by the expert culminates with effective, credible testimony on the witness stand, but it begins long before that with clear, jargon-free discussions with the client as arguments in the case are first developed and with the preparation of an effectively written expert report if that is required. Along the way, the expert should be mindful that members of the jury may need a variety of different kinds of explanations to ultimately grasp the facts of the case, and so the effective expert will be open to and actively seek non-verbal means such as diagrams, animations, models and functional, physical demonstrative aids to help convey the substance of his or her opinions.

6. Testifying experience – However impressive an expert’s education and experience may be, however knowledgeable in his or her field and however effective the expert may have been (or still may be) as a researcher, teacher, design engineer or corporate executive, specific additional skills are required if an expert is to be consistently successful in testifying. The courtroom is neither a laboratory nor a classroom, and the successful expert must understand that truth is pursued in the deposition room and in the courtroom in a different way and according to slightly different rules than those which apply elsewhere. While an expert can certainly be successful the first time he or she testifies, and indeed every expert was a neophyte once, most experts will agree that testifying, like all activities, becomes more efficient and more effective with practice and experience.

7. A teammate’s perspective – Some product liability cases are straightforward enough that a single expert will have all the skills, experience and tools necessary to address all the issues in the case and to prepare all the demonstrative aids necessary to support his or her testimony. More often than not, however, the plaintiff will argue a product liability case on several fronts to increase the likelihood that at least one of the claims against the product will be accepted by the jury. That tactic makes it difficult for a single expert, on either the plaintiff’s or the defendant’s side, to address all possible issues in the case. A case involving asphyxiation from the exhaust of an engine, for example, might be argued both as a design defect and as a failure to warn. In such a circumstance, it is unlikely that a single expert could effectively speak to the separate toxicity, mechanical design and warnings issues that might be raised. Therefore, a quality expert will be skilled within his area of expertise, but will also know the limits of that expertise. The effective expert will be honest with the client from the start about the extent of his or her comfort zone, will not overstep or be coaxed to testify outside that zone and will be ready and willing to work with other experts, as necessary, to build a successful team for the client.