November 23, 2007

Expert Witnesses Could Become the Weakest Link in the Chain in Defending Product Liability Suits

Article reprinted with permission from the April 1, 1995 edition, page 37
Bicycle Retailer and Industry News

A Legal Viewpoint

By Steven W. Hansen

The value of expert testimony cannot be underestimated in product liability cases. And in most states it is impossible to prove that a product is defective, or non-defective, without such testimony.

In general, anyone can be an expert if they have sufficient education or knowledge beyond the common experience of jurors. With such a broad definition, almost anyone can claim to be an expert, which is apparent in the bicycle field.

Attorneys suing bicycle companies will hire an expert immediately, particularly if their knowledge about the industry is limited. Experts are generally paid, regardless of the outcome, and in most states, experts are precluded from having a financial interest in the case's outcome.

Defense attorneys need to think about experts early-on when working with their clients, especially if it is a multi-defendant case, which has the tendency to use up all the available, qualified, local experts.

Some states have laws requiring attorneys to disclose who their experts are early in a case. This can be dangerous if you disclose someone who has a negative opinion of your position. Other states require disclosure only if an expert is to be used at trial. The safest rule is to get an expert's opinion long before designation.

In-House Experts. Using in-house experts is often a good idea if the company employs someone with some engineering training or education. If no one is qualified to answer technical questions, it could be viewed negatively by the jury.

I believe strongly in designating in-house experts. Jurors often expect to hear from a company representative about the safety and testing of the product. In-house experts may also be useful in assisting outside experts, especially if the product is complex. On the other hand, an in-house expert may suffer from the stigma of being the defendant's paid spokesperson.

It is important to be careful about the type of expert you retain. Some claim to be knowledgeable in many areas. But bicycle accidents can involve a number of specialties, such as biomechanics, metallurgy, mechanical engineering, accident reconstruction and others. Beware of "know it all” experts. Also be wary of experts with no scientific training who may render opinions that defy rules of physics or gravity. Such opinions may sound good, but a an expert on the other side can make your witness look foolish.

Background Checks Vital. You cannot risk the other side finding out about adverse testimony given by your expert before you do. You need to know early-on if your expert has testified adversely on points you may want to raise as a defense.

Some experts go to great lengths to conceal their background. For example, I have seen retainer agreements that require the attorney to prevent the other side from getting information on past compensation. If an expert is preventing you from gaining access to his background, that could be a cause for concern.

Inform Your Expert. What you tell your expert early-on about the case is important. Most attorneys do a "conflict check" to see if the experts have testified against any of the parties involved. Unlike attorneys, engineers, licensed or unlicensed, have no formal ethical restrictions on litigation conflicts. Background information also gives experts an opportunity to decide if they agree with your assessment of the case. If you decide, however, not to work together, there is the danger that the opposing party would try and retain them. An ethical engineer would decline to accept such an assignment.

In a recent California case, a judge disqualified attorneys who retained an expert who had consulted earlier with the opposing side. The judge concluded that the attorneys could have learned confidential information through the expert. The expert either intentionally or unintentionally misled the attorneys into believing that he had received no prior confidential information about the case.

An attorney also can "poison" an expert with too much confidential information, rendering him useless to the other party. But this can backfire if the expert is retained by the other side and a challenge is unsuccessful.

The safest method is to formally retain experts who have received confidential information, especially those who have expressed an opinion contrary to your view of the case. Obviously, you can not retain every one, and most will charge a retainer fee.

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