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Get the most from engineering experts: success at trial depends on how effectively your engineering experts present their methodology and communicate to the jury why and how a defective product injured your client. Thorough preparation of these experts is key.

Article Excerpt
Virtually every products liability case requires the assistance of one or more experts in the field of engineering. To use these experts effectively at trial, you must be prepared to confront and overcome the unique legal and practical challenges associated with their testimony.

The law views expert engineering evidence from a unique perspective. Whether an engineer's work constitutes sound practice within the engineering community is often of secondary importance to how the law evaluates the engineer's methodology. As a result, you must make sure your engineering experts are aware of the procedural and substantive law that is applicable to their testimony.

As a threshold matter, engineering experts must satisfy the jurisdiction's criteria for the admissibility of expert testimony and must support their work accordingly. In the federal courts, Federal Rule of Evidence 702 and the Daubert trilogy of cases provide the prerequisites for admissibility.] Under Daubert, expert evidence must be relevant and based on sound reasoning and methods. (2) To determine if an expert's analysis is reliable, the trial court must consider whether the underlying methodology has been tested, has been subjected to peer review and publication, has an identifiable error rate, has standards controlling the application of the technique, and has been generally accepted in the field. (3)

It is good practice for the expert to conduct his or her analyses in a manner that will satisfy a Daubert challenge. The expert should rely on materials and methods that are used by engineers working in the relevant industry. (4) These include

* industry or government treatises, studies, and other publications referencing applicable engineering principles and methods

* engineering design and performance standards related to the product at issue

* engineering reports and drawings related to the product at issue, similar products, and products with alternative designs

* patents related to the product at issue and improved designs

* engineering reports related to failures of both the product and substantially similar products

* raw test data, test reports, applicable test protocols, photographs and videotapes, and equipment calibration reports (5)

* mathematical formulas, input data, and calculations performed

* notes, photographs, videotapes, and other materials related to inspections, measurements, examinations, or analyses

* other factual information relevant to the engineer's analysis (6)

* diagrams, animations, models, charts, or illustrations of the engineer's work and the underlying engineering concepts.

The reliability of an engineer's work may also be supported by testimony from defense witnesses. The defendant's in-house engineers and testifying experts should be questioned regarding the processes they followed in drawing their conclusions about the product and the materials on which they relied in performing their work. When the engineering experts testifying on behalf of both the plaintiff and the defendant have used the same type of methodology and data, you can make the inference that the work is reliable, notwithstanding any difference in the ultimate conclusions. (7)

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