ToolsPerhaps second only to medical malpractice litigation, product liability suits may require the largest amount of expert testimony. The U.S. Consumer Product Safety Commission regulates everything from battery acid to car seats, and it has issued voluntary regulations for dozens of products. However, voluntary guidelines, while useful, do not provide a clear legal standard for a court to base a decision upon; so product liability experts become the key in determining if and when a particular standard of care was violated with respect to product liability cases.

Product liability law allows successful litigants to prevail in cases where a particular product was defective and caused injury to a plaintiff.  Product liability experts can provide expert opinions on product design, manufacturing defect, and opine if a manufacturer’s warnings or instructions were insufficient or were sufficiently misleading to the average consumer.  Experts in product liability cases are needed at every stage of litigation. Attorneys need expert consultants to help with the investigation of a case, determine what went wrong with a particular product, and research into exactly how the case should be presented. Experts in product liability cases belong at the table from the moment a suit is contemplated and an attorney decides that filing would be beneficial. Consulting experts can help to preserve the evidence and understand, early on, the theories which will later be critical in arguing the case, outlining a specific theory of damages, and trying to recover a judgment. It is infinitely better to have an expert explain why one theory might not be feasible and suggest another than to wait until trial time and have opposing counsel debunks that theory. This preparation is invaluable, and it strengthens the entirety of the case. Furthermore, product liability suits are among the most difficult cases to prove, and they require the expertise of those most familiar with the industry to prevail, such as engineers, safety assessors, product testers, and more. Once a suit begins, an attorney and client have legal fees, court and administrative costs, and mounting discovery costs to contend with. Product liability experts, particularly at the pretrial stages, are akin to navigators for the entire case, and their input will be valuable to conduct cost-benefit analyses, weigh various options, and determine the best preparation strategies for the ultimate trial.

Clearly, however, product liability experts do not cease to be important once a suit is filed. If anything, their importance increases as trials draw closer and as settlement negotiations begin. In the case of the testifying expert, the best option is to go with a qualified and experienced expert witness.  Professionals who have been deposed and testified in cases have proven strong communication skills, and they will be able to articulate credible theories, even in the face of merciless cross-examination. An experienced expert will be familiar with the trial process, procedural and evidentiary rules, and what burden of proof a party has.

Under Federal Rule of Evidence (FRE) 702, experts can be brought in whenever they will assist the trier of fact in making a determination about an issue in a case. Product liability experts are critical during trial to perform the same functions that they performed in pre-trial preparations: to outline a sound and plausible theory of damages to a judge or jury, to account for alternative explanations, and to give their testimony the stamp of reliability that quality expert scientific testimony receives. Once an expert passes the Daubert Test, their testimony is branded with a certain amount of reliability, since their theory has the backing of the scientific community in that industry. Product liability experts are certainly giving scientific testimony, and having the right expert, who can outline the causation comprehensively and conclusively, will not only assist the arbiter of facts but will go a long way towards helping a particular party’s case.

Products liability litigation is difficult and requires constant and appropriate expertise throughout the process. Plaintiffs can only prevail in cases where a product’s manufacturer either intentionally or recklessly permits consumers to purchase a defective product that is in some way unsafe and potentially could cause injury. Attorneys in product liability cases know what they are up against, but with the right experts, used early and throughout a given case, lawyers and their clients can reap immeasurable rewards while improving product safety for the world.

By: Kat S. Hatziavramidis, Attorney-at-Law