Chapter 17 How to utilize an Expert Witness in Products Liability Litigation

• Jurisdiction: New York

CHAPTER SEVENTEENHOW TO UTILIZE AN EXPERT WITNESS IN PRODUCTS LIABILITY LITIGATION Richard E. Alexander, Esq.
John C. Herbert, Esq.
Anthony R. Palermo, Esq.*
William P. Smith, Jr., Esq.
Julie S. Jordan, Esq.

I. INTRODUCTION

An “expert witness” is defined as one who possesses certain qualifications that enable him or her to testify as to a matter of science or art, which requires special knowledge or skill not ordinarily possessed by the average person ³⁰²⁶ This chapter discusses the use of an expert witness from the time of the occurrence that may give rise to suit through trial. It also provides a brief historical perspective on the use of experts

II. HISTORICAL PERSPECTIVE AND OVERVIEW

The courts in many states were reluctant under common law to allow expert testimony, particularly where the expert’s opinion went to the ultimate question to be decided by the jury. New York courts, however, in adopting an expansive view of the use of expert testimony, have long admitted such testimony, even that regarding the ultimate question to be decided by the jury. As early as 1890, the Court of Appeals observed in Van Wycklen v. City of Brooklyn ³⁰²⁷ that admissibility does not turn on whether the opinion touches the ultimate issue but whether “the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable.” ³⁰²⁸ Accordingly, the New York courts restricted expert testimony when the opinion involved an issue that could be equally resolved by jury members, using their own life experience and common sense

The Court of Appeals discussed at length the range of permissible testimony, including that encompassing the ultimate question for the jury, in the seminal case of People v. Cronin ³⁰²⁹ Since Cronin, the sanctioned range of expert testimony has expanded. Cronin squarely allows an expert opinion to go to the ultimate question before the jury in state court proceedings, and the Federal Rules of Evidence specifically permit such testimony as well. ³⁰³⁰ Recent cases reveal a tendency by federal and state courts to allow expert testimony on any issue not commonly understood by the average layperson.

Therefore, generally speaking, “expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.” ³⁰³¹ Essentially what differentiates a lay witness from an expert is that a lay witness may render only those opinions or conclusions that are rationally based on his or her perception and that are helpful to a clear understanding of his or her testimony or the determination of a fact in issue. In 2000, FRE 701 was amended to eliminate the risk that the requirements under FRE 702 would be evaded by calling an expert witness a layperson. Under this amendment, a witness’s testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. ³⁰³²

Different jurisdictions have rendered varying decisions on the question of whether an expert’s opinion must be based on generally accepted principles. Under state law, the testimony of an expert must involve a postulate that is generally accepted within the relevant scientific community. There was a split among the federal circuit courts on the issue of whether “general acceptance” was required, and the United States Supreme Court issued a definitive interpretation on June 28, 1993, with its holding in Daubert v. Merrell Dow Pharmaceuticals, Inc. ³⁰³³ The Court’s decision in Daubert was further clarified in March 1999 with its decision in Kumho Tire Co., Ltd. v. Carmichael. ³⁰³⁴ Kumho Tire interpreted the standards set out in Daubert as applying to all expert testimony, including “scientific,” “technical” or “other specialized” knowledge.

The use of experts is not foreign to attorneys engaged in complex litigation. Experts are used on questions such as damages, rehabilitation, causation, permanency of injury and prognosis. Liability experts are a practical necessity to both plaintiffs and defendants in sophisticated products liability litigation. As discussed below, with the exception of inferred defect cases, ³⁰³⁵ experts are required in order to establish, and rebut, a prima facie case.

III. USE OF EXPERTS IN VARIOUS STAGES OF LITIGATION

A. Pretestimonial Expert

Liability experts can be of considerable assistance even before suit has been brought. An expert with appropriate hands-on experience within a given industry can help develop and assess theories of liability, including the applicability of regulations, standards, relevant standards of care, state of the art at the time of manufacture, custom and usage and other factors that are considered in the typical risk-utility analysis employed in design defect cases. ³⁰³⁶

Experts can assist in identifying potential parties for direct or impleader practice and in assessing the similarities and differences among models of a product—an issue that frequently arises during discovery, as well as at trial. ³⁰³⁷ They can assist in identifying the information that should be sought through interrogatories and document demands, and in preparing for depositions of both important fact witnesses and expert witnesses.

In the pretrial area, expert input is frequently essential in making a motion for summary judgment. Manufacturers who have engineers on staff may utilize their own employees as experts in connection with a motion for summary judgment. In Zambotti v. Reading, ³⁰³⁸ the court specifically rejected the proposition that an affidavit from an in-house engineer was entitled to no probative value since it was “merely a self-serving document prepared by an employee of the defendant.” The Fourth Department said:

• Every affidavit submitted by a party is self-serving in the sense that it is submitted to serve the interests of that party. Moreover, the fact that the affiant is an employee of the party who submits the affidavit does not affect its admissibility on a motion for summary judgment. The affidavit of defendants’ expert in support of the motion was sufficient to show that there was no defect in the circular saw used by plaintiff and that it was designed in compliance with the accepted standards.³⁰³⁹

It is familiar law that once the moving party has established its entitlement to judgment as a matter of law (as the defendant had in Zambotti), the opposing party must tender proof, in admissible form, demonstrating the existence of a question of fact. ³⁰⁴⁰ In the products liability context, state and federal law are settled that conclusory affidavits by liability experts in opposition to a motion for summary judgment are insufficient. ³⁰⁴¹

B. Testimonial Expert

1. Liability—Required to Prove Specific Defect

Expert testimony is required in all cases where the defect is not one that can be inferred from the performance of the product. In a design defect case, the plaintiff must prove “that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.” ³⁰⁴² Thus, the plaintiff’s expert is required to demonstrate that the state of the art for such products was such that this product was not reasonably safe and that it could have been designed in a safer manner.

A corollary to the general rule is that expert testimony is not required, even in a design defect case, if the product defect is one where jurors may draw conclusions from their own knowledge or experience. For example, as the Second Department noted in Rosen v. Salem Truck Leasing, Inc.: ³⁰⁴³

• An expert witness is required to support a claim of departure from safe practice only where the issue involved transcends the realm of knowledge that lay persons possess, such as standards of medical care. The structure and safety of a (ladder-like) step frame at the rear of a truck that is used to mount the truck is certainly within the realm of experience that a juror can use to decide the issue of dangerous condition.³⁰⁴⁴

It is generally accepted in a “second collision” case, where the plaintiff must prove injury enhancement due to product defect, that expert testimony is required. In Cornier v. Spagna, ³⁰⁴⁵ the First Department observed that, under the “crashworthiness” or second collision doctrine, the plaintiff is required to prove that the injuries were more severe than they would have been had the product been properly designed. Jurors are not permitted to speculate as to the enhancement; competent proof is required.

Since the cause of action of strict products liability is indistinguishable from a cause of action for implied warranty of merchantability, ³⁰⁴⁶ where expert testimony is required to establish strict products liability, it also should be required to demonstrate breach of implied warranty of merchantability.

2. Liability—Not Required to Prove General Defect

In some instances, it is not necessary for a plaintiff to establish a defect by expert proof; the existence of a defect sometimes may be established circumstantially, by evidence from which it could be inferred that the product did not perform as intended. ³⁰⁴⁷

3. Liability—Proof of Proximate Causation

Proof of proximate causation in a design case requires expert testimony, except in those cases where the cause in fact is a matter within the experience of the average juror. In Voss, for example, where the plaintiff’s hand was cut by a saw blade, the Court of Appeals rejected a defendant’s argument that expert testimony on causation was required, stating that “the jury could have found proximate causation from its consideration of the

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