Expert Witness’ Qualification Requirements.
Product Liability Law under the Third Restatement of Torts
Dr. Maxim Gots P. Eng.
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An Expert – is defined under Federal Rule of Evidence705 as any person who by “knowledge, skills, experience, training or education” has “scientific, technical or other specialized knowledge”. At the first place an Expert should be able to use scientific principles and methods involved in analyzing the design of the product or warning and identify these principles if necessary.
Section II. Categories of product defects
An Expert should feel him/herself qualified to give an expertise in next three areas:
Design. It will require analysis of structural, mechanical (including hydraulics and pneumatics), electrical components, as well as safety related behavior of alleged machinery as a unit. This part will include analysis of controls, automation and programmable devises. It will require knowledge of technological processes that alleged machinery is involved (construction, mining, industrial production).
Manufacturing. Quality Control skills will be very useful here. Knowledge in visual inspection of critical points (e.g. welding, stress concentrators, corrosion), failure analysis, material testing (including nondestructive testing methods) could be critical. Ability to track typical rejects, epidemic failures, customers’ complain is essential.
Warning. This expertise will not be limited to hazard analysis. Psychological, ergonomical, and even philosophical aspects of human behavior will be involved.
An Expert that is able to find an evidence of departure from intended design – would be the right to choose, because the liability standard for manufacturing defects is strict.
Absolute majority of Product Liability cases is based on “defective design” theory. Subparagraph (b) of Section I of Restatement of Torts (Third) states as follows, “A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design … and the omission of the alternative design renders the product not reasonably safe.”
Experience of the Expert in design of equipment similar to alleged or in close related areas of industry could indicate Expert's ability to find alternative safer design.. Some Experts may have patented inventions that could indicate ability to find an alternative solution. Knowledge of foreign (e.g. European or Australian) regulations and standards could be useful, because a manufacturer, following overseas regulations could import product of “alternative safe design” neglecting safety of North American customers.
An Expert shall be able to determine foreseeable risk for foreseeable use and prove that manufacturer neglected the risk in warning and instructions.
The best way to identify risks that a product could produce or be involved in is the product testing. An expert that has an experience in product testing has additional positive potential in product liability litigation.
Section III. Inference of product defect.
Role of an Expert is vital at this point. The Expert should be able to develop “Malfunction Theory” that would make a circumstantial evidence to support inference of product defect.
Section IV. Non-compliance with relevant safety regulations.
An Expert that is not familiar with OSHA Reg.29 shall not be chosen as an Expert Witness in product liability litigation in United States (the same for OSH Act In Ontario, Canada). OSHA recognizes limited number of industrial standards, but under the “de minimis violation” policy a standard providing measures of safety equivalent or higher than OSHA Regulation shall be treated as a mandatory.
There is a lot of ANSI, ASME, SAE, ASTM, API, AWS, ASHTOO etc. and CSA/CAN standards that should be known to an Expert because violation of mandatory safety statute or regulation renders the product defective. Expert’s knowlage should not be limited to current regulations but extended to historical regulations too, because the legislation must be applicable at the time the product was distributed.
Standards’ clauses are rarely strict and clear. An Expert should bear in mind real intend and be aware about possible interpretations of Standard clauses.
Experts skills shall allow the Lawyer explore in detail the nature and extent of the expert's training, experience, and testing of the specific product or warning and similar products or warnings.