Expert Witness Could Be Crucial in Court

April 1, 2001
THE good news about accidents: The rate for utility fleets six per one million miles traveled is less than half of the rate for the American public. The

THE good news about accidents: The rate for utility fleets — six per one million miles traveled — is less than half of the rate for the American public.

The bad news: There could be litigation.

And the key could turn out to be the expert witness a company hires to lend credence to the attorney's case.

That's the message that Mark Leonard and Steve Tuskan tried to drive home in their session, “Accident Investigation and Product Liability.” Leonard and Tuskan, formerly accident investigators for U-Haul International, are senior engineers for Exponent Failure Analysis Associates at their Test and Engineering Center in Phoenix.

They said accident reconstruction is very important — not only to determine what happened, but also why it happened. To do that, any fleet, manufacturer, or distributor involved in a lawsuit needs a reliable, informed expert for every facet of the case.

“Oftentimes attorneys or insurance people get in the habit of using the same guy for everything,” Tuskan said. “They might get a mechanical engineer for everything from latches to hydraulics to electrical issues to human factors and biomechanics.

“You can say, ‘Wait, I want to be involved. I want to look at this guy's credentials. Does he have industry knowledge? Is he involved with associations like the NTEA?’ Otherwise, you're paying for that knowledge. You're sending him to school. You hire this expert and the attorney gets billed. And guess what? You get billed. And you're educating this expert about your industry. You have to realize that there are experts out there in every field you can imagine.”

He said a company should not hire a “yes man” as its expert, but instead someone who will give the bad news along with the good.

He encouraged the attendees to realize they are experts, too, because they know the design history. Therefore, they need to make themselves part of that litigation team.

“You've probably forgotten more about that product than this person will ever know,” he said.

Said Leonard, “You need company representatives. You need to find somebody in your company you are comfortable with to testify. Attorneys don't make it a pleasant experience. Answer the question asked. If the attorney asks, ‘Is the sky blue?’ what's your answer? ‘Yes.’ That's it. Don't expound on it.”

Tuskan offered this from Richard S. Kuhlman's 1986 book, “Killer Roads: From Crash to Verdict”: “The expert(s) who best understands the legal issues and the lawyer(s) who best understands the technical issues have the best chance of winning.”

How Did This Happen?

The case is going to revolve around one key question: Why did the accident happen? Leonard said a monkey can be trained to determine that a truck ran into a telephone pole at a certain speed. The contentious issues are determining who was at fault, whether the equipment was designed improperly or used outside its specifications, and whether the proper warnings were in place. He said a company must determine those answers in-house.

He said the accident must be investigated immediately.

“I can tell you that down the line, if you try to go back and get physical evidence through police photos, it will cost you probably three times as much as it would to send somebody there and get information,” Leonard said.

Reconstruction Must Be Thorough

Accident reconstruction is two things: an application of fundamental engineering principles to analyze a problem; and a thorough, systematic, and detailed engineering and scientific process. It isn't “seat-of-the-pants” or “back-of-the-envelope” activity.

He said computer analysis — either simulation (mathematical calculations based on physical laws) or animation (artwork that has no obligation to physical laws) — is a very effective tool in the courtroom because jurors can actually see what is being discussed.

He said it's important to immediately obtain the basic documents — police report, photos, statements, repair records, medical records — and then have an initial meeting in which goals and objectives are established, theories are developed, strengths and weaknesses are listed, and technical issues are identified and prioritized.

A strong safety and accident prevention program will bolster the case. That includes safety policy, safety program, vehicle selection, service intervals, analysis, testing, reports, warnings and instructions, recalls, and customer training.

“I've worked with numerous clients who basically have no safety program in-house,” Tuskan said. “Nothing. Not a safety policy. Not a safety program. Not a safety manual. Now those aren't all key. But that sends a message to the expert and to the jury that safety is important to you as a corporation. It may not be something that is key in the case, but the underlying theme is that you, as a manufacturer, have evaluated safety and set up these programs.”

Vehicle selection is critical because add-ons only add to confusion and probably won't be maintained properly because they're not on the maintenance schedule. Tuskan suggested eliminating things that are potential liability issues — such as a cigarette lighter in an ambulance.

On accident record and recalls, he said: “When you're purchasing a chassis, you will live with that chassis. It may have Ford, GM, or Chrysler on it, but when you're sued, that becomes your truck. So look at recalls and accident records and whatever the public perceives this vehicle as.”

Service is just as important. Tuskan said that when he was with U-Haul, they had 80,000 trucks and 100,000 trailers — an extensive inventory that was difficult to monitor.

“We had one instance where there were issues with power steering,” he said. “By the time we looked at the entire fleet, it was a much bigger issue than we originally thought. You have to make sure your customers are looking at the entire fleet — not just microscopically at one truck — so they can evaluate trends within the fleet and get that information back to you guys.”