More often than not, a Texas personal injury attorney will need to employ an expert in a complex personal injury case, especially those involving complex auto accidents or product liability cases. The United States Supreme Court has decided several landmark decisions that define acceptable experts and their testimony. Those cases include Daubert v. Merrel Dow Pharmaceuticals and Kumho Tire Inc. v. Carmichael . However, the plaintiffs’ bar is discovering that more experts are being disqualified at an alarming rate.
Many times, once the plaintiff’s expert has been disqualified, the defendants will win on summary judgment, because the plaintiff can no longer prove causation. Texas has tightened standards in some cases. For example, some Texas courts have taken the position that a substance alleged to be cancerous, such as benzene, must have evidence indicating a 100% increase in the cancer rate over the general population. In other cases, judges have been known to exclude animal studies of product exposure as being unreliable despite the fact that animal studies are routinely used in Food and Drug Administration (FDA) and Occupational Safety and Health Administration (OSHA) risk assessments.
In the past, courts often looked favorably on the local certified engineer or registered professor to testify on behalf of the injured plaintiff. That is no longer the case. These days, especially in the area of products liability and testimony regarding a defective product, the only acceptable expert will be one who was involved in the design of a similar product.
In addition, a test of basic scientific principles by a local expert may not be acceptable to the court on account that the test is not recognized by the scientific community and has not been deemed a reliable test in a peer reviewed journal.
As you can see, it is very likely that experts and their scientific evidence which the courts once accepted, could now be excluded. Once a court excludes an expert, then defense lawyers take the exclusion order to other courts where that expert will testify and try to use the order to disqualify the expert again.
To properly navigate this growing system of expert exclusion, a San Antonio and Texas products liability attorney must have experts who were previously employed in a similar industry (for example, the pharmaceutical industry) and who were involved in the design of a similar product. Rigorous research is needed to make sure the peer publications are strong enough to back the expert opinion and that his method of research is accepted as a reliable. The more scientific evidence published by the expert in a journal of his / her peers, the more likely, the expert will be Daubert-proof.