Developing An In-House Expert, A Helpful Tool in Defending Product Liability Claims
In my 30 years of trying product liability cases, I have seen many instances in which the use of an in-house expert witness has been extremely successful. There is no stronger evidence than a person testifying about a product he or she developed and tested before it went on the market. The cost, time, and training materials, although somewhat steep at first, is minor by comparison to the kind of savings both in claim prevention and in claim defense that such in-house expert or experts can provide.
One In-House Expert or Many?
It is always a nice question as to how many in-house experts a company should have in place to defend its products. While going with one expert has many advantages, including restricting the amount of time devoted to training and preparation, and honing the expertise of one particular person to be a good testifier, there are also disadvantages. If you use one in-house expert for all your products, they will develop cross-product knowledge about claims and issues that have arisen with those products. While this can be helpful in many ways, it also can prove fruitful to the plaintiff’s side in cross-examination. Too much testifying by one person can also turn your in-house amateur into an alleged professional testifier. The purpose behind using an in-house expert is to avoid that kind of label, and one has to be careful in selecting in-house experts as to whether one of them will testify so many times that they become the equivalent of an outside witness. Probably a nice compromise is to designate an in-house person to testify at your trials for each product line. This will give them some depth and an opportunity for gaining experience, and at the same time be much less injurious to their credibility. Another alternative is to have a designated expert in-house for each aspect of the product in production, from design, manufacturing, quality control, and in-house and outside testing. Depending on how your company is organized and where each of these functions is conducted, this may make more sense and be easier for you to function in that fashion. This may also be more comfortable for your in-house expert as it is rare to find a person with experience and abilities across all those various disciplines.
Training the In-House Expert
Serious thought has to be given to how to train an in-house expert in being prepared to deal with litigation. At a minimum they should:
- Meet periodically with outside and in-house counsel to discuss legal issues arising with respect to the products and those issues, implications, and the product design, manufacturing, and distribution;
- Attend seminars designed for in-house personnel on product liability and other legal issues; and
- Complete training on record keeping and record writing, preferably put together by attorneys with experience in dealing with electronic discovery and in dealing with technical issues that can arise in written documents during the trial of a case.:
Many of these programs are available through the Defense Research Institute (DRI), Product Liability Advisory Council (PLAC), and through the Sporting Goods Manufacturer’s Associations (SGMA’s) Legal Information Group and Legal Task Force. Many of these programs are done as webinars or telephone seminars and can be done at relative low cost with little disruption in the work schedule. The SGMA’s programs, for example, tend to be webinars that occur during the lunch hour. Many other organizations are also trying this technique.
Use of the In-House Expert at Trial
The main function of an in-house expert is to operate as a spokesman and a symbol for the company in the handling of a product liability case. By showcasing a company’s expertise in designing products that perform well and are safe to the consumer, your in-house expert can close a lot of the gaps that can exist in corporate records, particularly if a product is considerably aged before the accident happened. Your in-house expert can provide continuity and credibility to the quality control programs in your company, and can successfully demonstrate to the jury that the company’s interest in safety and product quality is a long-term interest, and that it is not something developed just for this litigation. In-house experts can also have substantial knowledge of competitor’s products and the relative quality, strength, and safety of your company’s products as opposed to the competition. They can also pick apart outside experts hired by the plaintiff and present a very credible picture as a person who has actually designed and built products. Very few plaintiff’s experts have ever done that.
There is a certain amount of “ownership” that an in-house expert brings to a case which resonates with the jury. Often, in-house experts have had in-house experience in life. This contrasts them strongly with plaintiff’s experts who are often academics or persons who have expertise in a million things. Your in-house expert is going to testify as to something he or she knows about because they do it every day. The outside expert hired by the plaintiff will probably have opined about scores of products and hundreds of issues over their life as an expert witness. The in-house witness will be focused and fully experienced in depth in the product which is the subject of the case.
In coming editions, we will re-visit these issues and discuss other ways to prepare in-house experts and to help them become a strong part of defending your product.