Strictly Speaking

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June 26, 2012 Volume 9 Issue 2

RJ Lee Group has helped resolve over 3,000matters during the last 25 years. Learn how we usesound science to uncover the root cause of productfailure.

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In Strictly Speaking

Will Recent Amendment to FRCP 26 Affect

Daubert Challenges?

Notes from the Chair

Notes from the Editor

Worldwide Recall Preparation

Fight Fire with Fire: Use of Industry Treatises in

the Defense of Product Defect Claims

Increase Your DRI Membership Value

NEW! Trade Secrets and Non-Competes: A

Compendium of State Law

Committee Leadership

Committee Chair

Young Lawyer Column

Fight Fire with Fire: Use of IndustryTreatises in the Defense of ProductDefect Claimsby Brian J. Benoit

Any product liability case requires some degreeof technical savvy from the attorneys involved.Even though trained experts are retained toprovide scientific opinions for the defense,knowing enough, as an attorney, to recognize

when an expert is trying to hide a poor theory with rhetoricand proverbial "smoke and mirrors" is a necessity. In almostevery product liability case, a plaintiff must present experttestimony of a defect that led to the damages alleged. Nolonger are plaintiffs permitted to use negative corpus, looselytranslated to mean "without the body of the crime" to prove upa products case. Along with a higher threshold for proving adefect comes a need for regulation of an expert's credentialsand scientific accountability of opinions. There are a growingnumber of court opinions that cite to industry acceptedtreatises and scholarly articles when evaluating the reliabilityof an expert's opinion.

Factual Investigation

Why wait? Treatises should not be limited to the courtroomduring cross or in motion practice. A mentor of mine routinelyexplains that the best and first place to start a legal analysis isthrough review of continuing education treatises in theparticular area of law involved. Likewise, any investigationinto the facts should start with the treatise in the applicablefield or fields of expertise that pertain to your case. An expertin the area involved should be able to provide the applicabletreatises. Consultation with DRI members has also provensuccessful.

"The requirement that an expert's testimony pertain to"scientific knowledge" establishes a standard of evidentiaryreliability." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509U.S. 579 (1993). The Daubert decision and Federal Rule ofEvidence 702 set forth the requirement that opinions bebased in science, or in other words, formulated in accordancewith the scientific method. While the steps vary betweenprofessions and scholars, the basic elements to the scientificmethod are: identify the problem, gather relevant data,

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Charles A. Stewart,IIIBradley Arant Boult Cummings(334) 956-7608

cstewart@babc.com

Committee Vice ChairPatrick J. SweeneySweeney & Sheehan(215) 563-9811 patrick.sweeney@sweeneyfirm.com

Newsletter EditorJoshua H. Abramson Porzio Bromberg & Newman(212) 265-6888

jhabramson@pbnlaw.com Click to view entire Leadership

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formulate a hypothesis and subject the hypothesis toempirical testing ("scientific method." Dictionary.comUnabridged. Random House, Inc. 17 Apr. 2012.Dictionary.com http://dictionary.reference.com/browse/scientific method). An industry treatise will providethe necessary tools to know what information is relevant andmust be gathered in order to formulate a sound hypothesisthrough the scientific method.

If a lawsuit came in wherein a client's product was found inthe alleged area of origin of a fire for example, anyinvestigation by defense or plaintiff's experts should befollowed and meticulously scrutinized by NFPA 921, Guide forFire and Explosion Investigations. If allegations pertained toan alleged liquid propane leak, the Handbook of CompressedGases provides for inspection methods to check for leaks andcontaminants or defects in sealed containers. UnderwritersLaboratories and the Food and Drug Administration alsoprovide comprehensive standards for compliance withindustry accepted safety protocols for varying types ofproducts (see www.ul.org and www.fda.org). These will armcounsel with pointed questions to ask during the investigationstage and beyond. Failure to follow prescribed industry-accepted investigation techniques can lead to an opinionpredicated on faulty data.

Qualifications and Knowledge

Treatises can be utilized to determine those areas aboutwhich an expert may or may not be capable of testifying.Certain causes of action may require analyses in variousfields of expertise. It may be the case wherein an expert is notcapable of testifying as to all of the scientific elementsrequired to prove that a defect caused alleged injuries. InCalhoun v. Yamaha Motor Company, 350 F.3d 315 (3d Cir.2003) plaintiff's expert sought to testify about a jet ski'sdefective warnings and the defective design of the Jet Ski'sthrottle due to a person's tendency to clench one's handswhile under stress. While the expert was able to testify aboutthe warnings issue due to his experience in human factorsanalysis, he provided no literature or demonstrable testssupporting the idea that an individual tends to clench oneshands when under stress. Even a "supremely qualified expertcannot waltz into the courtroom and render opinions unlessthose opinions are based on some recognized scientificmethod and are reliable and relevant under the test set forthby the Supreme Court in Daubert." Clark v. Takata Corp., 192F.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 donot follow the methodologies outlined in accepted treatiseswithin their field of expertise.

Certain areas of expertise require an expert to conductcertain inquires before rendering an opinion. NFPA 1033,Standard for Professional Qualifications for a Fire Investigatorsets forth specific criteria for the knowledge required of a fireinvestigator and procedures to be used in a fire investigationto render a competent opinion according to NFPA, theNational Fire Protection Association.

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An expert may not have the information necessary to renderan opinion about a specific defect. Treatises must be utilizedat deposition to commit an expert to rendering opinions onlywithin his or her expertise and knowledge of the facts. Thisshould prevent the expert from voicing scientific opinions thatare outside of his or her knowledge and/or expertise. Thetestimony is, after all, on the record. A qualified fireinvestigator, public or private, may have sufficient informationto evaluate the area of origin of a fire by virtue of his or herpresence at the scene, through taking and observingphotographs and interviewing eye witnesses. That does notmean however that the investigator is capable of rendering anopinion as to how a defect in a product actually created asituation capable of causing the fire at issue. This is wherethe 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 resourcein 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 forguidance?

A. Yes.

Q. In investigating a fire?

A. Yes.

Q. And 921 defines point of origin --and I'll quote -- "The exactphysical location within the area of origin where a heat sourceand a fuel interact resulting in a fire or explosion," closequote.

Q. All right. Now, in this case, based upon a reasonabledegree of scientific and engineering certainty, did you everdetermine a point of origin?

A. No, I did not.

Testing of Hypotheses

Analysis of recent opinions that exclude expert testimonybased on Daubert and FRE 702 seem to focus on the testing,or lack of testing of a hypothesis. "Testing, which is actuallyperformed, must be appropriate and must analytically provethe expert's hypothesis." Presley v. Lakewood Engineeringand Mfg. Co. 553 F.3d 638 (8th Cir. 2009). In Presley,Plaintiff's expert sought to admit testimony regarding a firespread theory within an electric space heater. The DistrictCourt, after conducting a Daubert hearing on the issues,excluded Plaintiff's expert's opinion "because [Plaintiff'sexpert] failed to apply reliably the standards of NFPA 921 tohis theory."

There are numerous industry publications which prescribe theproper methods for conducting forensic tests. Formerly theAmerican Society for Testing and Materials, ASTM

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promulgates standards for the manufacture and forensicinvestigation of products and component parts. ANSI, theAmerican National Standards Institute also providesstandards and guidelines by which products and componentsare utilized and tested. Searchable at www.ansi.org andwww.astm.org, these standards should be evaluated inconjunction with the investigation into facts and standards bywhich your product may be adjudged and in evaluation themethods and reliability of testing of hypotheses.

For example, if an expert purported to testify that a company'srecliner was defective because it caught fire after a cigarettewas inadvertently dropped onto it, defense expert andcounsel should confirm that any exemplar testing adhered tothe standards set forth in ASTM E1353 - 08ae1 Standard TestMethods for Cigarette Ignition Resistance of Components ofUpholstered Furniture. Other resources for testing protocolinclude Underwriters Laboratories standards and asdiscussed, ANSI standards. The scientific method does notpermit the formulation of a test to achieve the desired result.The tests must use the objectively gathered data, throughaccepted methods and conducted objectively by professionalsin the area of expertise.

Use at Trial

"Let the jury decide" is the unfortunate outcome of all toomany Daubert challenges. If a jury will be deciding thereliability of an opinion as to defect, then the jury should bemade aware of the industry standards and practices used togather evidence and develop and test those hypotheses.Jurisdictions are split however as to the extent industrytreatises may be used at trial.

There are four predominant schools of thought in permittingthe use of industry treatises. The first is where the expertexpressly relied on the treatise. Second, an expert who hasrelied either specifically or generally on a treatise may becross examined generally on the bases of such treatise. Third, experts may be cross examined on a treatise withwhich they deem authoritative. The final school thought allowscross examination where an authoritative treatise is used totest the qualifications of an expert (see 31A An. Jur. 2d.Expert and Opinion Evidence § 105.).

The admissibility of an industry treatise at trial will invariablydepend on the expert's use of the treatise throughout theinvestigation. Industry standards that are favorable should bemade a record of at any point possible, which includes atdeposition, in motion practice, interrogatories, productionresponses, Rule 26 disclosures, etc. Utilize any opportunity toshed light on the proper means and methods to arrive at ascientifically reliable opinion.

Practice Points

Identify the applicable treatise or treatises that pertainto the causes of action as soon as possible, whetherat the claim or lawsuit stage.Utilize your own experts to identify the particulartreatise and sections of a treatise that are mostimportant to your case.

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Evaluate plaintiff's expert's methods, opinions andcredentials according to recognized standards in theindustry (and make sure your expert adheres to thesame).Recognize prior case law that cites to the applicabletreatise and evaluate the opinions for use in motionsto exclude, mediation and settlement discussions.

Brian J. Benoit is an associate with the law firm of Wiedner &McAuliife, Ltd. His nationwide practice focuses on productliability in the areas of consumer products, fire and casualtyand gas and chemical explosions. Brian is a regular author ofthe products liability column for the Illinois Association ofDefense Counsel and Defense Research Institute. Brian hasalso presented to the National Fire Protection Association andDefense Research Institute on the use of NFPA in litigationand expert deposition tactics. Back...