1. Strictly Speaking
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June 26, 2012 Volume 9 Issue 2
RJ Lee Group has helped resolve over 3,000
matters during the last 25 years. Learn how we use
sound science to uncover the root cause of product
failure.
DRI Resources
Join the DRI Community
In Strictly Speaking
Will Recent Amendment to FRCP 26 Affect
Daubert Challenges?
Notes from the Chair
Notes from the Editor
Worldwide Recall Preparation
Fight Fire with Fire: Use of Industry Treatises in
the Defense of Product Defect Claims
Increase Your DRI Membership Value
NEW! Trade Secrets and Non-Competes: A
Compendium of State Law
Committee Leadership
Committee Chair
Young Lawyer Column
Fight Fire with Fire: Use of Industry
Treatises in the Defense of Product
Defect Claims
by Brian J. Benoit
Any product liability case requires some degree
of technical savvy from the attorneys involved.
Even though trained experts are retained to
provide scientific opinions for the defense,
knowing enough, as an attorney, to recognize
when an expert is trying to hide a poor theory with rhetoric
and proverbial "smoke and mirrors" is a necessity. In almost
every product liability case, a plaintiff must present expert
testimony of a defect that led to the damages alleged. No
longer are plaintiffs permitted to use negative corpus, loosely
translated to mean "without the body of the crime" to prove up
a products case. Along with a higher threshold for proving a
defect comes a need for regulation of an expert's credentials
and scientific accountability of opinions. There are a growing
number of court opinions that cite to industry accepted
treatises and scholarly articles when evaluating the reliability
of an expert's opinion.
Factual Investigation
Why wait? Treatises should not be limited to the courtroom
during cross or in motion practice. A mentor of mine routinely
explains that the best and first place to start a legal analysis is
through review of continuing education treatises in the
particular area of law involved. Likewise, any investigation
into the facts should start with the treatise in the applicable
field or fields of expertise that pertain to your case. An expert
in the area involved should be able to provide the applicable
treatises. Consultation with DRI members has also proven
successful.
"The requirement that an expert's testimony pertain to
"scientific knowledge" establishes a standard of evidentiary
reliability." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). The Daubert decision and Federal Rule of
Evidence 702 set forth the requirement that opinions be
based in science, or in other words, formulated in accordance
with the scientific method. While the steps vary between
professions and scholars, the basic elements to the scientific
method are: identify the problem, gather relevant data,

2. Strictly Speaking
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Charles A. Stewart,III
Bradley Arant Boult Cummings
(334) 956-7608
cstewart@babc.com
Committee Vice Chair
Patrick J. Sweeney
Sweeney & Sheehan
(215) 563-9811
patrick.sweeney@sweeneyfirm.com
Newsletter Editor
Joshua H. Abramson
Porzio Bromberg & Newman
(212) 265-6888
jhabramson@pbnlaw.com
Click to view entire Leadership
Seminar
Nursing Home/ ALF
Litigation Seminar
September 20-21, 2012
Las Vegas, Nevada
formulate a hypothesis and subject the hypothesis to
empirical testing ("scientific method." Dictionary.com
Unabridged. Random House, Inc. 17 Apr. 2012.
Dictionary.com http://dictionary.reference.com/
browse/scientific method). An industry treatise will provide
the necessary tools to know what information is relevant and
must be gathered in order to formulate a sound hypothesis
through the scientific method.
If a lawsuit came in wherein a client's product was found in
the alleged area of origin of a fire for example, any
investigation by defense or plaintiff's experts should be
followed and meticulously scrutinized by NFPA 921, Guide for
Fire and Explosion Investigations. If allegations pertained to
an alleged liquid propane leak, the Handbook of Compressed
Gases provides for inspection methods to check for leaks and
contaminants or defects in sealed containers. Underwriters
Laboratories and the Food and Drug Administration also
provide comprehensive standards for compliance with
industry accepted safety protocols for varying types of
products (see www.ul.org and www.fda.org). These will arm
counsel with pointed questions to ask during the investigation
stage and beyond. Failure to follow prescribed industry-
accepted investigation techniques can lead to an opinion
predicated on faulty data.
Qualifications and Knowledge
Treatises can be utilized to determine those areas about
which an expert may or may not be capable of testifying.
Certain causes of action may require analyses in various
fields of expertise. It may be the case wherein an expert is not
capable of testifying as to all of the scientific elements
required to prove that a defect caused alleged injuries. In
Calhoun v. Yamaha Motor Company, 350 F.3d 315 (3d Cir.
2003) plaintiff's expert sought to testify about a jet ski's
defective warnings and the defective design of the Jet Ski's
throttle due to a person's tendency to clench one's hands
while under stress. While the expert was able to testify about
the warnings issue due to his experience in human factors
analysis, he provided no literature or demonstrable tests
supporting the idea that an individual tends to clench ones
hands when under stress. Even a "supremely qualified expert
cannot waltz into the courtroom and render opinions unless
those opinions are based on some recognized scientific
method and are reliable and relevant under the test set forth
by the Supreme Court in Daubert." Clark v. Takata Corp., 192
F.3d 750, 759 n.5 (7th Cir. 1999). An expert may have a c.v.
two miles long, but it means nothing if his or her opinions do
not follow the methodologies outlined in accepted treatises
within their field of expertise.
Certain areas of expertise require an expert to conduct
certain inquires before rendering an opinion. NFPA 1033,
Standard for Professional Qualifications for a Fire Investigator
sets forth specific criteria for the knowledge required of a fire
investigator and procedures to be used in a fire investigation
to render a competent opinion according to NFPA, the
National Fire Protection Association.

3. Strictly Speaking
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DRI Publications
Product Liability
Cases and the Duty
to Warn
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An expert may not have the information necessary to render
an opinion about a specific defect. Treatises must be utilized
at deposition to commit an expert to rendering opinions only
within his or her expertise and knowledge of the facts. This
should prevent the expert from voicing scientific opinions that
are outside of his or her knowledge and/or expertise. The
testimony is, after all, on the record. A qualified fire
investigator, public or private, may have sufficient information
to evaluate the area of origin of a fire by virtue of his or her
presence at the scene, through taking and observing
photographs and interviewing eye witnesses. That does not
mean however that the investigator is capable of rendering an
opinion as to how a defect in a product actually created a
situation capable of causing the fire at issue. This is where
the treatise, NFPA 921 can come in handy at deposition:
Q. What is NFPA 921?
A. NFPA 921 is a guide to fire investigation.
Q. And do you regard NFPA 921 as an authoritative resource
in the field of fire investigation?
A. I think it is one of many, but, yes.
Q. All right. Is it something that you might turn to for
guidance?
A. Yes.
Q. In investigating a fire?
A. Yes.
Q. And 921 defines point of origin --and I'll quote -- "The exact
physical location within the area of origin where a heat source
and a fuel interact resulting in a fire or explosion," close
quote.
Q. All right. Now, in this case, based upon a reasonable
degree of scientific and engineering certainty, did you ever
determine a point of origin?
A. No, I did not.
Testing of Hypotheses
Analysis of recent opinions that exclude expert testimony
based on Daubert and FRE 702 seem to focus on the testing,
or lack of testing of a hypothesis. "Testing, which is actually
performed, must be appropriate and must analytically prove
the expert's hypothesis." Presley v. Lakewood Engineering
and Mfg. Co. 553 F.3d 638 (8th
Cir. 2009). In Presley,
Plaintiff's expert sought to admit testimony regarding a fire
spread theory within an electric space heater. The District
Court, after conducting a Daubert hearing on the issues,
excluded Plaintiff's expert's opinion "because [Plaintiff's
expert] failed to apply reliably the standards of NFPA 921 to
his theory."
There are numerous industry publications which prescribe the
proper methods for conducting forensic tests. Formerly the
American Society for Testing and Materials, ASTM

4. Strictly Speaking
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promulgates standards for the manufacture and forensic
investigation of products and component parts. ANSI, the
American National Standards Institute also provides
standards and guidelines by which products and components
are utilized and tested. Searchable at www.ansi.org and
www.astm.org, these standards should be evaluated in
conjunction with the investigation into facts and standards by
which your product may be adjudged and in evaluation the
methods and reliability of testing of hypotheses.
For example, if an expert purported to testify that a company's
recliner was defective because it caught fire after a cigarette
was inadvertently dropped onto it, defense expert and
counsel should confirm that any exemplar testing adhered to
the standards set forth in ASTM E1353 - 08ae1 Standard Test
Methods for Cigarette Ignition Resistance of Components of
Upholstered Furniture. Other resources for testing protocol
include Underwriters Laboratories standards and as
discussed, ANSI standards. The scientific method does not
permit the formulation of a test to achieve the desired result.
The tests must use the objectively gathered data, through
accepted methods and conducted objectively by professionals
in the area of expertise.
Use at Trial
"Let the jury decide" is the unfortunate outcome of all too
many Daubert challenges. If a jury will be deciding the
reliability of an opinion as to defect, then the jury should be
made aware of the industry standards and practices used to
gather evidence and develop and test those hypotheses.
Jurisdictions are split however as to the extent industry
treatises may be used at trial.
There are four predominant schools of thought in permitting
the use of industry treatises. The first is where the expert
expressly relied on the treatise. Second, an expert who has
relied either specifically or generally on a treatise may be
cross examined generally on the bases of such treatise.
Third, experts may be cross examined on a treatise with
which they deem authoritative. The final school thought allows
cross examination where an authoritative treatise is used to
test the qualifications of an expert (see 31A An. Jur. 2d.
Expert and Opinion Evidence § 105.).
The admissibility of an industry treatise at trial will invariably
depend on the expert's use of the treatise throughout the
investigation. Industry standards that are favorable should be
made a record of at any point possible, which includes at
deposition, in motion practice, interrogatories, production
responses, Rule 26 disclosures, etc. Utilize any opportunity to
shed light on the proper means and methods to arrive at a
scientifically reliable opinion.
Practice Points
Identify the applicable treatise or treatises that pertain
to the causes of action as soon as possible, whether
at the claim or lawsuit stage.
Utilize your own experts to identify the particular
treatise and sections of a treatise that are most
important to your case.

5. Strictly Speaking
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Evaluate plaintiff's expert's methods, opinions and
credentials according to recognized standards in the
industry (and make sure your expert adheres to the
same).
Recognize prior case law that cites to the applicable
treatise and evaluate the opinions for use in motions
to exclude, mediation and settlement discussions.
Brian J. Benoit is an associate with the law firm of Wiedner &
McAuliife, Ltd. His nationwide practice focuses on product
liability in the areas of consumer products, fire and casualty
and gas and chemical explosions. Brian is a regular author of
the products liability column for the Illinois Association of
Defense Counsel and Defense Research Institute. Brian has
also presented to the National Fire Protection Association and
Defense Research Institute on the use of NFPA in litigation
and expert deposition tactics.
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