USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
2.8 Rules for Expert Evidence in Product Liability Cases Expert witness testimony in federal court is gov - erned by Federal Rules of Evidence 702 and 703. Amendments to Rule 702 that went into effect on 1 December 2023 clarify the standard for the admissibility of expert testimony. The Amended Rule 702 states that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the pro- ponent demonstrates to the court that it is more likely than not that : • the expert’s scientific, technical or specialised knowledge helps the trier of fact understand the evidence or determine a fact at issue; • the testimony is based on sufficient facts or data; • the testimony is the product of reliable princi - ple and methods; and • the expert’s opinion reflects a reliable applica - tion of the principles and methods to facts of the case. Rule 703 provides that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. While certain information that an expert relies on in forming their opinions may not need to be admissible, if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their proba - tive value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
The standards for appropriate preservation of evidence include reasonableness, proportion - ality and accessibility. A legal hold should be promptly implemented if it could be credibly argued that either an investigation or litigation involving the materials at issue is likely. Fed R Civ P 37 (e) governs the potential consequences if a legal hold is not properly implemented or adhered to. 2.7 Rules for Disclosure of Documents in Product Liability Cases The scope and timing of discovery in federal court is governed by Fed R Civ P 26. State court discovery rules and practice are similar to the federal rules but often have their own nuances. Rule 26 (b)(1) defines the scope of discovery as “any non-privileged matter that is relevant to any party’s claim or defence and proportional to the needs of the case” . Proportionality requires an assessment of “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant informa- tion, the parties’ resources, the importance of the discovery in resolving the issues, and wheth- er the burden or expense of the proposed dis- covery outweighs its likely benefit” . Fed R Civ P 34 governs the production of docu - ments and tangible things, whether in physi - cal documents, electronic records and data, records of communications (physical, email, text, recordings, etc), or physical objects such as the product itself. Fed R Civ P 45 addresses the procedures for obtaining documents from a non-party through the service of subpoenas. In a product case, typical non-parties include the plaintiff’s employer, prior owners of the product, and healthcare providers.
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