USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers Graham and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
standard for admission of expert testimony. The amendment clarifies that the party offering expert tes - timony must establish all criteria by a preponderance of the evidence. In other words, an expert’s methods must be “more likely than not” reliable. The new language also emphasises the judge’s role in limiting an expert’s opinion to that which reflects a reliable application of the principles and methods to the facts of the case, because jurors may lack the specialised knowledge to make that determination. Courts assess several factors in determining reliability of an expert’s methodology, including: • whether the theory is testable; • whether the theory is subject to peer review and publication; • whether there is a known or potential error rate; and • whether the theory is generally accepted in the field. Courts applying the Daubert standard typically apply additional factors identified by the Ninth Circuit Court of Appeals in Daubert on remand: “whether the experts are proposing to testify about matters growing naturally and directly out of research they have con - ducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying because the former provides important, objective proof that the research comports with the dictates of good science” ( Daubert v Merrell Dow Pharm Inc , 43 F3d 1311, 1313 (9th Cir 1995)). Frye Standard Some state courts apply the Frye standard rather than Daubert when assessing the admissibility of expert testimony. Expert testimony is admissible under Frye if the expert’s methodology is generally accepted by experts in that particular field. See Frye v United States , 293 F 1013 (DC Cir 1923). Experimental meth - odology or methodology that is not well recognised is generally not admissible. 2.9 Burden of Proof in Product Liability Cases The plaintiff who asserts a product liability action bears the burden of proving their claims against the
defendant(s). Each element of the claim must be proven by a preponderance of the evidence. The fail - ure to prove any element of a cause of action by a preponderance of the evidence is fatal to the claim. In some states, there is a heightened burden of proof for establishing punitive damages including “clear and convincing evidence” and “beyond a reasonable doubt”. A defendant bears the burden of proving the affirmative defences they raise during the lawsuit. In some states, plaintiffs are required to prove the existence of a feasible alternative design. See Evans v Daikin North Am , LLC (D Mass 2019). 2.10 Courts in Which Product Liability Claims Are Brought Product liability cases are typically brought in district court in the federal system and in the state trial courts. Product liability cases are most often tried before juries; however, the parties can agree to proceed with a bench trial before a judge. Some states require the plaintiff to affirmatively claim for jury trial, and the fail - ure to do so may waive the party’s right to a jury trial. In a jury trial, the judge will preside over the trial and rule on all motions, including those for a directed ver - dict. A directed verdict motion asserts that the plaintiff has failed to meet their burden of proof at trial. 2.11 Appeal Mechanisms for Product Liability Claims There are no unique appellate procedures for prod - uct liability cases. In federal court cases, a party may appeal a final decision to a regional Circuit Court of Appeal. A decision is final when the court enters a final judgment (either through ruling on a dispositive motion or following a verdict). See Fed R Civ P 58. In some instances, a party may appeal a district court’s ruling through an interlocutory appeal. The Federal Rules of Appellate Procedure and local rules of indi - vidual Circuit Courts of Appeal govern the appeal pro - cess. The appellate court will issue a ruling based on its review of the record, the parties’ appellate briefs, and oral argument. To challenge an appellate court ruling (or a state supreme court’s ruling if there is a federal question), a party can file a writ of certiorari to the US Supreme
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