Posted on: 8/16/2012
Brian Jeffrey Benoit, Wiedner & McAuliffe
View Latest Articles
Any product liability case requires some degree of technical savvy from the attorneys involved. Even though trained experts are retained to provide scientific opinions for the defense, knowing enough, as an attorney, to recognize when an expert is trying to hide a poor theory with rhetoric and proverbial "smoke and mirrors" is a necessity. In almost every product liability case, a plaintiff must present expert testimony of a defect that led to the damages alleged. No longer are plaintiffs permitted to use negative corpus, loosely translated to mean "without the body of the crime" to prove up a products case. Along with a higher threshold for proving a defect comes a need for regulation of an expert's credentials and scientific accountability of opinions. There are a growing number of court opinions that cite to industry accepted treatises and scholarly articles when evaluating the reliability of an expert's opinion.
Why wait? Treatises should not be limited to the courtroom during cross or in motion practice. A mentor of mine routinely explains that the best and first place to start a legal analysis is through review of continuing education treatises in the particular area of law involved. Likewise, any investigation into the facts should start with the treatise in the applicable field or fields of expertise that pertain to your case. An expert in the area involved should be able to provide the applicable treatises. Consultation with DRI members has also proven successful.
"The requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert decision and Federal Rule of Evidence 702 set forth the requirement that opinions be based in science, or in other words, formulated in accordance with the scientific method. While the steps vary between professions and scholars, the basic elements to the scientific method are: identify the problem, gather relevant data, formulate a hypothesis and subject the hypothesis to empirical testing ("scientific method." Dictionary.com Unabridged. Random House, Inc. 17 Apr. 2012. Dictionary.com http://dictionary.reference.com/ browse/scientific method). An industry treatise will provide the necessary tools to know what information is relevant and must be gathered in order to formulate a sound hypothesis through the scientific method.
If a lawsuit came in wherein a client's product was found in the alleged area of origin of a fire for example, any investigation by defense or plaintiff's experts should be followed and meticulously scrutinized by NFPA 921, Guide for Fire and Explosion Investigations. If allegations pertained to an alleged liquid propane leak, the Handbook of Compressed Gases provides for inspection methods to check for leaks and contaminants or defects in sealed containers. Underwriters Laboratories and the Food and Drug Administration also provide comprehensive standards for compliance with industry accepted safety protocols for varying types of products (see www.ul.org and www.fda.org). These will arm counsel with pointed questions to ask during the investigation stage and beyond. Failure to follow prescribed industry-accepted investigation techniques can lead to an opinion predicated on faulty data.
Qualifications and Knowledge
Treatises can be utilized to determine those areas about which an expert may or may not be capable of testifying. Certain causes of action may require analyses in various fields of expertise. It may be the case wherein an expert is not capable of testifying as to all of the scientific elements required to prove that a defect caused alleged injuries. In Calhoun v. Yamaha Motor Company, 350 F.3d 315 (3d Cir. 2003) plaintiff's expert sought to testify about a jet ski's defective warnings and the defective design of the Jet Ski's throttle due to a person's tendency to clench one's hands while under stress. While the expert was able to testify about the warnings issue due to his experience in human factors analysis, he provided no literature or demonstrable tests supporting the idea that an individual tends to clench ones hands when under stress. Even a "supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based on some recognized scientific method and are reliable and relevant under the test set forth by the Supreme Court in Daubert." Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999). An expert may have a c.v. two miles long, but it means nothing if his or her opinions do not follow the methodologies outlined in accepted treatises within their field of expertise.
Certain areas of expertise require an expert to conduct certain inquires before rendering an opinion. NFPA 1033, Standard for Professional Qualifications for a Fire Investigator sets forth specific criteria for the knowledge required of a fire investigator and procedures to be used in a fire investigation to render a competent opinion according to NFPA, the National Fire Protection Association.
An expert may not have the information necessary to render an opinion about a specific defect. Treatises must be utilized at deposition to commit an expert to rendering opinions only within his or her expertise and knowledge of the facts. This should prevent the expert from voicing scientific opinions that are outside of his or her knowledge and/or expertise. The testimony is, after all, on the record. A qualified fire investigator, public or private, may have sufficient information to evaluate the area of origin of a fire by virtue of his or her presence at the scene, through taking and observing photographs and interviewing eye witnesses. That does not mean however that the investigator is capable of rendering an opinion as to how a defect in a product actually created a situation capable of causing the fire at issue. This is where the treatise, NFPA 921 can come in handy at deposition:
Q. What is NFPA 921?
A. NFPA 921 is a guide to fire investigation.
Q. And do you regard NFPA 921 as an authoritative resource in the field of fire investigation?
A. I think it is one of many, but, yes.
Q. All right. Is it something that you might turn to for guidance?
Q. In investigating a fire?
Q. And 921 defines point of origin --and I'll quote -- "The exact physical location within the area of origin where a heat source and a fuel interact resulting in a fire or explosion," close quote.
Q. All right. Now, in this case, based upon a reasonable degree of scientific and engineering certainty, did you ever determine a point of origin?
A. No, I did not.
Testing of Hypotheses
Analysis of recent opinions that exclude expert testimony based on Daubert and FRE 702 seem to focus on the testing, or lack of testing of a hypothesis. "Testing, which is actually performed, must be appropriate and must analytically prove the expert's hypothesis." Presley v. Lakewood Engineering and Mfg. Co. 553 F.3d 638 (8th Cir. 2009). In Presley, Plaintiff's expert sought to admit testimony regarding a fire spread theory within an electric space heater. The District Court, after conducting a Daubert hearing on the issues, excluded Plaintiff's expert's opinion "because [Plaintiff's expert] failed to apply reliably the standards of NFPA 921 to his theory."
There are numerous industry publications which prescribe the proper methods for conducting forensic tests. Formerly the American Society for Testing and Materials, ASTM promulgates standards for the manufacture and forensic investigation of products and component parts. ANSI, the American National Standards Institute also provides standards and guidelines by which products and components are utilized and tested. Searchable at www.ansi.org and www.astm.org, these standards should be evaluated in conjunction with the investigation into facts and standards by which your product may be adjudged and in evaluation the methods and reliability of testing of hypotheses.
For example, if an expert purported to testify that a company's recliner was defective because it caught fire after a cigarette was inadvertently dropped onto it, defense expert and counsel should confirm that any exemplar testing adhered to the standards set forth in ASTM E1353 - 08ae1 Standard Test Methods for Cigarette Ignition Resistance of Components of Upholstered Furniture. Other resources for testing protocol include Underwriters Laboratories standards and as discussed, ANSI standards. The scientific method does not permit the formulation of a test to achieve the desired result. The tests must use the objectively gathered data, through accepted methods and conducted objectively by professionals in the area of expertise.
Use at Trial
"Let the jury decide" is the unfortunate outcome of all too many Daubert challenges. If a jury will be deciding the reliability of an opinion as to defect, then the jury should be made aware of the industry standards and practices used to gather evidence and develop and test those hypotheses. Jurisdictions are split however as to the extent industry treatises may be used at trial.
There are four predominant schools of thought in permitting the use of industry treatises. The first is where the expert expressly relied on the treatise. Second, an expert who has relied either specifically or generally on a treatise may be cross examined generally on the bases of such treatise. Third, experts may be cross examined on a treatise with which they deem authoritative. The final school thought allows cross examination where an authoritative treatise is used to test the qualifications of an expert (see 31A An. Jur. 2d. Expert and Opinion Evidence § 105.).
The admissibility of an industry treatise at trial will invariably depend on the expert's use of the treatise throughout the investigation. Industry standards that are favorable should be made a record of at any point possible, which includes at deposition, in motion practice, interrogatories, production responses, Rule 26 disclosures, etc. Utilize any opportunity to shed light on the proper means and methods to arrive at a scientifically reliable opinion.
- Identify the applicable treatise or treatises that pertain to the causes of action as soon as possible, whether at the claim or lawsuit stage.
- Utilize your own experts to identify the particular treatise and sections of a treatise that are most important to your case.
- Evaluate plaintiff's expert's methods, opinions and credentials according to recognized standards in the industry (and make sure your expert adheres to the same).
- Recognize prior case law that cites to the applicable treatise and evaluate the opinions for use in motions to exclude, mediation and settlement discussions.
Brian J. Benoit is an associate with the law firm of Wiedner & McAuliife, Ltd. His nationwide practice focuses on product liability in the areas of consumer products, fire and casualty and gas and chemical explosions. Brian is a regular author of the products liability column for the Illinois Association of Defense Counsel and Defense Research Institute. Brian has also presented to the National Fire Protection Association and Defense Research Institute on the use of NFPA in litigation and expert deposition tactics.