USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
Federal Standard for Admissibility of Expert Testimony Amended Rule 702 emphasises the judge’s role as gatekeeper for expert testimony and articu - lates the standard for admission of expert tes - timony. The amendment clarifies that the party offering expert testimony must establish all crite - ria 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 reli - ability 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 conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying because the former provides important, objec- tive 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 rath- er than Daubert when assessing the admissibility of expert testimony. Expert testimony is admis - sible 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 methodology or meth - odology 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 failure 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 estab - lishing punitive damages including “clear and convincing evidence” and “beyond a reasonable doubt” . A defendant bears the burden of prov - ing 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 affirm - atively claim for jury trial, and the failure to do so may waive the party’s right to a jury trial.
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