November 23, 2007

Inspections, Tests and Testimony Are Crucial Concerns for Experts Used in Product Liability Suits

Article reprinted with permission from the May 1, 1995 edition, page 25
Bicycle Retailer and Industry News

A Legal Viewpoint

By Steven W. Hansen

Expert testimony can make or break a legal defense, as I wrote in a previous column. But the impact of that testimony depends upon how well defense attorneys use their expert witnesses.

Inspections. Site and product inspections are two of the most important rolls for your expert witness, outside of testifying. Product inspection often occurs under supervision of plaintiff's attorney, as the plaintiff retains custody of the bike. Plaintiff's attorney will deny requests to alter the bike without a court order. I always accompany my experts and occasionally bring an in-house expert to help spot peculiarities. If the plaintiff's attorney demands to accompany you, then be careful to keep him from eavesdropping on your plans during the inspection.

Avoid joint inspections by several experts. They can be confusing, making it easy for information to be picked up by the wrong person. Experts also may know one another, creating a tendency for collaboration. This can cause problems if one defendant later decides to target another with information gathered during inspection. Collaboration can always occur later when all parties have solidified their positions. Remember, information divulged to an expert during inspection, regardless of its source, usually results in the loss of attorney-client privilege.

Testing. On-site accident reconstruction or in-lab testing can challenge your expert's scientific abilities and real-world experience. These are areas where costs skyrocket. Outside specialists or labs sometimes must be used along with specialized equipment. There is a fine line between standard equipment, that should be provided free to the client, and specialized, or experimental equipment, that costs extra. As with doctors, it is always nice to get second opinions. However, too many experts may cause conflicts.

If experts must rent or buy equipment, how knowledgeable can they be in properly using it? Always ask that question. You need to get a budget from experts early so the expenses can be weighed in relation to your client's potential exposure.

To properly defend a case, many defendants are forced to do far more testing than the plaintiff. Development of technical information, which goes beyond that acquired by a plaintiff, is a way your expert can discredit a plaintiff's expert. Just be careful your tests don't aid the plaintiff's case.

Destructive testing of the evidence also can be problematic. The plaintiff's attorney will usually have an expert present and, if the results are less helpful than you hoped, the findings could be used against you. It's best to test a sample first.

Accident re-creations and video depictions can be convincing or prejudicial. It is disheartening when expensive tests and re-creations are ruled inadmissible by a judge. Attorneys and experts must work together closely. This is where an expert's previous court experience can prove invaluable. Conversely, an attorney's working knowledge of products and his experience in the industry are important.

In a recent precedent-setting case in California, a manufacturing company sued its own expert, an accountant, for professional negligence. The accounting firm argued it was immune from suit, but the court agreed with the manufacturer. It found that the expert could be sued just like the manufacturer's attorney.

Testifying. Much of the success of an expert depends upon preparation and timing before depositions, which usually are done close to trial. Normally, I dislike experts putting their opinions in a formal report that can tie them down.

Always try to depose a plaintiff's expert witnesses first, or at least get a report, if one is available, so you get a better idea of the plaintiff's theory. Plaintiffs dislike being pinned down. Their experts often will be vague or claim they are unsure what testing they may perform prior to trial. This uncertainty must be eliminated if at all possible.

Testifying at deposition and trial are learned skills that improve with practice. Some experts are naturals, while others never get it. If your expert is new to litigation, you may want to spend more time in preparation. If your experts hold up poorly on cross-examination, or they are unable to express themselves well on direct examination, the efforts spent in testing will be diluted.

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