Practice Tip: 30 Days Before Trial — Testing Your Expert's Knowledge

Failure-to-Warn

In a failure-to-warn case, the expert should explain how warnings are conveyed from manufacturers to users and the reasons for the warnings.

Alternative Design

The expert must be ready to testify as to the feasibility of an alternative design and the cost for it.

Notice of the Defect

If statistics concerning the type of accident that the plaintiff had are available, the lawyer can prepare to argue that the manufacturer had notice of the defect in question.

Voir Dire

If you have chosen an expert who has testified about the defects in many different types of products, then you must be ready to prepare him for a possible voir dire. During this portion of his testimony, the defendant may be trying to prevent the court from qualifying the expert at trial. Such questions as “Have you ever designed such a machine, sold such a machine, used such a machine” have often been used in an attempt to prevent the expert from qualifying. He must be ready to defend his position as a professional engineer and state that the principles of engineering are the same for any product, notwithstanding the fact that he has never worked for a company or designed or manufactured or sold this particular product.

Subpoenas

Last but not least, the lawyer should go over the subpoenas that he intends to serve, keeping in mind that a manufacturer, which is not located in the state but is doing business in the state, is amenable to service of a subpoena for testimony by persons employed out-of-state by that manufacturer. See 23/23 Communications Corp., et al. v. General Motors Corporation, 172 Misc, 2d 821, 660 NYS2d 296 (NY, 1997).

In the March 2003 Practice Tip, I discussed two of those individuals with whom the trial lawyer should meet within the 30 days prior to trial: the client and the physician. This month's tip discusses meeting with the engineer. For ease of reference, all individuals are deemed male. For purposes of the discussion, the case concerns injury caused by a defective machine. When the lawyer prepares the engineering expert, the plaintiff should be present. There are several issues about which he must be prepared to testify:

How the Device Works

The expert must know how the device in question works. This will also test your expert's comprehensive knowledge of the device in general. Many experts come into court knowing why a device was defective but not really knowing how it worked in the first place. The expert must understand how the plaintiff alleges the accident occurred. An expert can quickly lose all of his credibility if he cannot explain how the device is designed to work or how the accident occurred. The expert must also explain, very clearly, why the device was defective. A design defect case is very difficult for a juror to understand, especially if the defect claimed is failure to properly warn.

Failure-to-Warn

In a failure-to-warn case, the expert should explain how warnings are conveyed from manufacturers to users and the reasons for the warnings.

Alternative Design

The expert must be ready to testify as to the feasibility of an alternative design and the cost for it.

Notice of the Defect

If statistics concerning the type of accident that the plaintiff had are available, the lawyer can prepare to argue that the manufacturer had notice of the defect in question.

Voir Dire

If you have chosen an expert who has testified about the defects in many different types of products, then you must be ready to prepare him for a possible voir dire. During this portion of his testimony, the defendant may be trying to prevent the court from qualifying the expert at trial. Such questions as “Have you ever designed such a machine, sold such a machine, used such a machine” have often been used in an attempt to prevent the expert from qualifying. He must be ready to defend his position as a professional engineer and state that the principles of engineering are the same for any product, notwithstanding the fact that he has never worked for a company or designed or manufactured or sold this particular product.

Subpoenas

Last but not least, the lawyer should go over the subpoenas that he intends to serve, keeping in mind that a manufacturer, which is not located in the state but is doing business in the state, is amenable to service of a subpoena for testimony by persons employed out-of-state by that manufacturer. See 23/23 Communications Corp., et al. v. General Motors Corporation, 172 Misc, 2d 821, 660 NYS2d 296 (NY, 1997).