Antitrust attorneys

On both a national scale and in California courts, product liability cases increasingly require the use of expert witness testimony on both sides, to determine whether a specific manufacturer should incur liability in court for an alleged product defect.  A product liability expert witness can be the key in such cases, because many jurors’ most probing inquiry in such cases often and inaccurately revolves around the issue of whether the product conforms to the standards of a particular industry.  The actual legal standard for product liability cases dealing with negligence is whether or not the product was “state of the art” at the time it was manufactured.


“State of the art” does not mean that a product does or does not conform to a basic, industry-wide standard.  However, plaintiffs who either mischaracterize “state of the art” to mean “did the product meet basic industry standards?” or who permit defense experts to characterize “state of the art” in this manner are likely to lose their cases.  This is because many juries believe that a product that meets some industry standard, about which experts testify, should not result in a finding of liability by the manufacturer.

It is important to fully understand what exactly is being tested in product liability cases because of the errors litigants and attorneys make in determining what type of expert testimony is most beneficial to their case.  Two factors should be considered when retaining an expert witness in product liability cases: (1) The expert’s credibility, and (2) The substance of the expert’s testimony.

FIRST: Credibility: The most recent trend is to for courts to consider, in product liability litigation, how “directly-related” a testifying expert witness is to the issues that they seek to prove.  Whereas in some medical malpractice cases, courts prefer medical expert witnesses who have a more distant relationship with a patient, it is the opposite with product liability litigation.  In fact, if the product is seen as the “patient,” courts look favorably upon experts who have quite a bit of direct experience in testing that product, design of similar products, etc.  The Sixth Circuit Court of Appeals recently addressed this issue, in its 2012 ruling in Raymond v. Lawrence.  The question in Lawrence was whether litigation-related research, rather than direct professional experience, fulfills the requirements of Rule 702 of the Federal Rules of Evidence. The Sixth Circuit’s interpretation favored expert witness who had more specific experience with a product in question or its engineering and design, rather than experts who derived most or their expertise from litigation-related research only.  In other words, when seeking experts in product liability cases, it helps to have expert witnesses who have direct experience in the specific field discussed and/or with the particular product at issue.

SECOND: Substance: The key, in retaining expert witnesses who heavily influence juries in product liability cases is simple.  The focus should be on the product itself, not on the manufacturer’s behavior.   A defendant/manufacturer can concede that they did/do not comply with certain “industry standards” in the field but still prevail in court, if they prove the product was created as safely as possible, based on the abilities of the engineering field to assess product-safety, at the time the product was manufactured.  It isn’t relevant whether a manufacturer used the “appropriate” or “best” techniques; the state of engineering knowledge should be sufficient at the time the product was manufactured.

California law clearly states that when questioning whether or not a product was “state of the art” or not, the Court should look to technological feasibility, not what the “industry custom” appeared to be, particularly not the current custom since the product was manufactured before current standards existed.  The “state of the art” doctrine permits expert evidence that pertains to the limits of scientific, mechanical, or physical feasibility at the time the product was manufactured.  See, e.g., McLaughlin v. Sikorsky Aircraft, 148 Cal. App.3d 203 (1983), See also Rawlings v. D. P. Oliver, Inc., 97 Cal. App.3d 890 (1979).

The bottom line, in selecting the best testimony for a product liability case is: (1) that the product liability expert witnesses have direct experience working with a particular product/type of product, and (2) that the substance of expert testimony and a litigant’s strategy center on what “state of the art” truly means, rather than discussing abstractions or merely mentioning industry standards.

By: Kat Hatziavramidis, Attorney-at-Law