Under Federal Rule of Evidence 702 and
similar State rules, an expert is a witness
“qualified…by knowledge, skill,
experience, training or education” to
give testimony that will be helpful to
the jury; consider Mona Lisa Vito on
“General Automotive Knowledge” in
the movie My Cousin Vinny...
April 2020 SPRAY 21
Most of what we call civil litigation today is actually discovery.
Few civil cases—indeed, fewer than 2%, according to recent
surveys—actually go to trial. Discovery is where the action is. It’s
usually the most time-consuming, the most expensive and the
most contentious stage of the litigation. Although designed to
prevent surprise at trial, it may also become a war of attrition and
a fight for settlement leverage.
In our model case, discovery quickly undermined the narrative in
the complaint. In the records of the University of North Carolina
Hospital burn center, where the boy was airlifted and treated, we
found the notation, “Patient was reportedly playing with a lighter
with a friend who dared him to set his shirt on fire, which he did,” and
similar notations. We now had the central theme of our case: a little
boy who’d played with fire. In deposition, his mother agreed that she’d
heeded the product instructions, waiting 15-20 minutes after applying
the sunscreen before allowing her son to go outside. We now
had a critical fact—the drying time—to use in assessing the product’s
flammability and whether the accident could be replicated.
The boy’s mother also conceded that she’d read and understood
the flammability warning on the product container. (“Do
not use in the presence of a flame or spark. Keep away from
sources of ignition…”) Further—in depositions of the boy, his
friend and his father—conflicting stories emerged: the accident
happened outside…or in the house; the boys found the cigarette
lighter on a dirt road…or it was Mom’s own lighter on the kitchen
table; the sunscreen was allowed to dry for less than five minutes
(Dad’s testimony), or 12 minutes (the boy’s testimony) or had
never been sprayed on the boy in the first place (the friend’s
testimony); the boy was burned when he held the cigarette lighter
under his shirt…or by a spark.
Expert Testimony
Several issues in a product liability case are invariably beyond the
knowledge and experience of the ordinary juror:
• Was the sunscreen defectively designed?
• Could it have ignited several minutes after application?
• Were the warnings on the product adequate?
Each side presents expert testimony to assist the jury in understanding
and deciding these issues. Indeed, the “battle of the
experts” may become the central focus of the dispute.
Who may give expert testimony? Under Federal Rule of Evidence
702 and similar State rules, an expert is a witness “qualified…
by knowledge, skill, experience, training or education”
to give testimony that will be helpful to the jury (think Albert
Einstein on physics or Mona Lisa Vito on “General Automotive
Knowledge” in the movie My Cousin Vinny).
In our model case, plaintiff retained a chemist who opined that
the hydrocarbon components in the sunscreen posed a fire risk
even after drying. He added that the product packaging did not
adequately warn consumers about this risk.
We responded with a fire protection engineer. He first
determined that isobutane, the propellant and only flammable
liquid in the sunscreen, would have evaporated immediately and
would not have been present on the boy’s skin at the time of the
accident. He also attempted to duplicate the boy’s accident in a
laboratory. Covering a simulated skin surface with material from
cotton T-shirts similar to the one worn by the boy, he compared
the flammability of the cotton with and without sunscreen applied
to the skin. He found no difference in fire behavior. He also
Expert witness for the defense was a fire protection engineer who determined
the isobutane propellant (and only flammable liquid in the sunscreen) would
have evaporated immediately and would not have been present on the boy’s
skin at the time of the accident. He also attempted to duplicate the boy’s accident
in a laboratory. Covering a simulated skin surface with material from
cotton T-shirts similar to the one worn by the boy, he compared the flammability
of the cotton with and without sunscreen applied to the skin. He found no
difference in fire behavior.
20th Century Fox