Product Liability Litigation in the Age of Daubert and Lanigan

By Attorney Eric J. Parker

Like the very products they address, the laws governing defective product liability are constantly evolving. New products, employing even newer technologies, have given rise to failures and resulting injuries that, just a decade ago, were all but unimaginable. Unlike the product failures of yesteryear, which included failed automotive airbag deployment, tire tread failures, and children’s pajamas that burn, the products of the 21st century now involve defective vision-correcting lasers, design errors in computer microprocessor and semiconductor manufacturing, and cellular tower radiation. Just who the courts now allow to testify as “expert witnesses” in these more complex cases has become the subject of intensive debate in courtrooms throughout the United States, including the nation’s highest court.

To successfully prosecute a defective product liability case in nearly every jurisdiction, including Massachusetts, the plaintiff’s product liability attorney must be prepared to prove several required “elements” of the claim to succeed at trial. While the nature of these elements may vary somewhat from state to state, the outcome of a product liability case in virtually every jurisdiction typically hinges on the quality of the expert witness testimony offered at trial. Just what is meant by “quality expert testimony” was the subject of a major U.S. Supreme Court opinion in the case of Daubert et ux., individually and as guardians ad litem for Daubert, et al. v. Merrell Dow Pharmaceuticals, Inc., as adopted by the Massachusetts Supreme Judicial Court in the case of Commonwealth v. Lanigan, 419 Mass. 15 (1994) and In Re: Case of Canavan, 48 Mass. App. Ct. 297 (1999).

In essence, the Daubert case held that just because someone holds himself out as “an expert” does not, by itself, qualify that person to testify as to theories and opinions that may be honestly held, but do not have the support of the relevant scientific community most qualified to render such opinions.

Take, for example, the case of a 28-year-old woman in her fourth week of pregnancy who undergoes an emergency MRI resulting from a minor motor vehicle accident. Two weeks later, the woman miscarries, leading to deep feelings of personal loss and depression. The woman retains a Massachusetts product liability lawyer to investigate two distinct theories as to the cause of her miscarriage: first, that the MRI machine may have somehow caused the resulting miscarriage and, second, if not the MRI, then the car accident itself was to blame. The woman’s product liability attorney then sets out to locate a qualified medical expert to obtain an opinion as to whether the most likely cause of the miscarriage was the MRI or the initial trauma suffered in the motor vehicle accident. After much searching, the woman’s product liability lawyer locates a physician, who, based on his knowledge, training and experience as a board certified obstetrician, with more than 30 years of experience treating pregnant women, is prepared to offer his “expert opinion” that the MRI or the trauma caused by the car accident were the most likely causes of the plaintiff’s fetal demise.

In response, the defense turns to its own board certified obstetrician of comparable experience, education, and training, who is prepared to testify in court that in his “expert medical opinion” neither the MRI nor the trauma of the motor vehicle accident had any causal connection to the woman’s miscarriage. He bases his opinion on reams of medical data, which demonstrate that one in four pregnancies results in miscarriage during the first trimester, despite the absence of MRI exposure, physical trauma, or any other known cause. The defense expert also points to numerous articles in leading obstetrical journals and medical textbooks that further support his opinions. At trial, in a pre-Daubert era, the two witnesses would taken turns on the witness stand, subject to the rigors of intense cross-examination by opposing counsel, after which the jury would simply decide which of the opinions they found more credible. But in the post-Daubert era, the rules have changed.

What Daubert and its Massachusetts companion, Lanigan, did was prescribe a new and heightened standard for the admissibility of expert trial testimony — one that requires substantially more in the way of corroboration and general acceptance in the relevant scientific, engineering, or other professional communities. In short, the decisions sought to keep “junk science” from the ears of less experienced jurors, a goal few would seek to challenge. Unfortunately, it is how the new standard has come to be utilized by opposing counsel that remains suspect.

In our earlier example of the woman’s miscarriage, the plaintiff’s expert based his opinion on the fact that the MRI or the trauma of the accident were both likely causes of the resulting fetal demise. But other than his own clinical experience and “gut sense,” there was little, if any, broad scientific or medical support for his opinions. While he did qualify as an expert, capable of offering expert testimony at trial, his opinions did not pass muster under the strict requirements of Daubert and Lanigan.

According to the language of the decision issued by the U.S. Supreme Court in the Daubert case, for an expert opinion to be regarded as reasonably reliable, it should: (1) be based on a theory or technique that has been subject to scientific testing; (2) be an opinion that has been subjected to peer review or publication; (3) be an opinion that accepted test results generally confirm; and (4) be an opinion that is generally accepted within the relevant scientific community. But how should such a standard be applied to cases involving relatively new product technologies that result in a serious injury? Take, for example, a case where a man undergoes treatment for laser vision correction, and the laser – a technology only recently approved for such use – results in the patient’s permanent loss of correctable vision. The likelihood that the patient’s product liability lawyer would be capable of meeting the standard under the Daubert and Lanigan cases by providing published articles or other peer review summaries, where no similar prior incident had yet been reported, is slim. This could, in fact, create an insurmountable hurdle for the plaintiff, and effectively serve as a bar to compensation.

There is no dispute that “junk science” has no place in the courtroom. Unfortunately, the standards put in place by the Commonwealth’s highest court provide large corporations that design and manufacture defective products with yet another mechanism for denying justice to innocent victims.

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About Attorney Eric J. Parker

Eric J. Parker is the Managing Partner and co-founder of the Boston-based trial firm Parker Scheer LLP, with offices in Massachusetts and Nevada. Mr. Parker has 20 years of active experience as one of Massachusetts’ leading civil trial lawyers, and holds the highest peer-review rating awarded to any attorney for professional skill and ethics. Mr. Parker is a member of the American Association for Justice (formerly the Association of Trial Lawyers of America), as well as the American, Massachusetts, and Boston Bar Associations. Mr. Parker is an elected member of the American Board of Trial Advocates (ABOTA; Elected Vice President, Massachusetts Chapter, January 2007), and is a certified member of the Million Dollar Advocates Forum. In 2007, Mr. Parker was appointed to the Editorial Board of Massachusetts Lawyer Weekly, the leading weekly legal newspaper serving the Commonwealth of Massachusetts. Mr. Parker has been named a Massachusetts Super Lawyer by the publishers of Boston Magazine, every year since the distinction was first created. Mr. Parker’s legal practice focuses on plaintiff-oriented tort litigation, including product liability, motor vehicle tort, medical and dental malpractice, premises liability claims, workplace sexual harassment and assault, aviation-related injuries, and wrongful death. Mr. Parker is a Graduate of Vassar College and received his Juris Doctor degree from Suffolk University Law School. In addition to his legal practice, Mr. Parker is also an FAA Certified Private Pilot, and was a founding member of the Board of Trustees of the Media And Technology Charter High School (MATCH) located in Boston (Chairman 2001-2005), the goal of which is to provide inner city high school students with a successful college education.