Failure to exercise a reasonable duty of care for the safety of others may demonstrate negligence, particularly in situations where breach of that duty causes injury. In such situations, a safety expert witness scrutinizes safety measures in place at the time of injury. If reasonable safety measures were not adhered to, the victim may recover damages, including the cost of medical expenses.
A safety expert witness opines on such issues as negligence, wrongful death, standard of care, attractive nuisance doctrine, and products liability. Injuries due to lack of safety can involve an array of factors including water safety, electrical safety, products liability, and the presence or sufficiency of warning labels. Expert testimony on safety standards typically requires using biochemical and forensic engineering to reconstruct the accident.
Qualifications of a Safety Expert Witness
Safety experts are professionals such as engineers, research professors, safety consultants, and compliance officers. A safety expert witness testifies in personal injury cases including negligence claims, wrongful death and products liability disputes. They opine on industry standards for cases relating to agriculture, commodities, construction, and food, among other topics. Some safety experts specialize on topics such as safety training materials, industrial hygiene, and hazardous materials management.
Before hiring an expert witness, attorneys must be sure that the expert witness who will be testifying is sufficiently qualified to withstand the challenges to an expert’s reliability brought during cross-examination.
Federal Rule of Evidence 702 governs the admissibility of all expert testimony in federal court, including that of an expert witness. It requires that experts meet the elements articulated in the landmark U.S. Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals.
“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:
- (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- (b) the testimony is based on sufficient facts or data;
- (c) the testimony is the product of reliable principles and methods; and
- (d) the expert has reliably applied the principles and methods to the facts of the case.
Courts look at whether experts possess education, knowledge, or experience to qualify as an expert. Under the Daubert standard, the expert witness testimony must “assist the trier of fact in understanding or determining a fact in issue.” See United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005). State courts differ in the tests they use to determine admissibility of expert testimony. While most court follow the Daubert standard some still apply the Frye standard. This allows expert opinion based on a scientific technique only where the technique is generally accepted as reliable in the relevant scientific community.
Benefits of Hiring a Safety Expert Witness
An expert witness provides testimony in cases on issues such as:
- Accident Reconstruction
- Construction Defects
- Construction Safety
- Chemical Management
- Duty of Care
- Electrical Safety
- Excavation & Trenching
- Fall Protection
- Fire or Explosion
- Food Safety
- Health & Safety Regulations
- Negligent Hiring, Retention or Training
- Personal Protective Equipment
- Product Design
- Retail Safety
- Scaffolds & Ladders
- School Safety
- Swimming Pool Safety
- Warning Labels
A safety expert is often called upon in litigation of negligence claims. To prove a negligence claim, the injured party must prove the five elements required to establish a prima facie case of negligence: (1) the existence of a legal duty to exercise reasonable care; (2) a failure to exercise reasonable care; (3) cause in fact of physical harm by the negligent conduct; (4) physical harm in the form of actual damages; and (5) proximate cause; a showing that the harm is within the scope of liability.
The testimony of a safety expert is very important in establishing these elements.
Consider a slip-and-fall case where the plaintiff alleges that a store owner failed to use ordinary care to maintain, modify, repair, correct, inspect or warn the general public of dangerous condition and that such failure to exercise reasonable care was the proximate cause of the plaintiff’s injury. In such a case, a safety expert can measure and analyze floor plans, testifying on whether the safety policy and flooring in question met industry standards. The expert can discuss whether certain factors, such as moisture from spilled drinks, affected the slip resistance of a particular flooring surface.
In O’Connor v. Litchfield, expert witness testimony that a lack of safety cones on wet floor of station constituted unreasonable risk of harm persuaded the trial court to find that a party failed to meet his statutory duty to provide safety employment. 864 So.2d 234 (La.App. 1 Cir. 12/31/03).
An important way an expert witness can bolster a trial team’s case is by performing accident reconstruction during pre-trial preparations. Safety experts have the knowledge necessary to analyze factors causing the injury – be it environmental, negligence, or product defect. They can also reconstruct how and why injury occurred.
For example, NASCAR consulted with fencing and car safety experts following the violent Nationwide Series crash at Daytona International Speedway that injured 28 fans in March 2013. Structural engineering experts opined on the safety of the crossover gate that was penetrated as a result of a multi-car accident. They also made recommendations to ensure the safety of NASCAR fans. Experts also focused on the construction of the destroyed car and how it came apart following the collusion with the crossover gate.
A safety expert witness considers the causes of an accident, including design and operation, environmental conditions, force or speed of motion, and the injured party’s behavior. Accident investigation requires a highly specialized and knowledgeable expert witness to communicate such technical elements to a judge or jury.
Additionally, a safety expert can determine if the plaintiff’s negligent or reckless behavior contributed to or caused the injury. If expert witness testimony demonstrates that there was contributory negligence by the injured party, the plaintiff may be limited or even barred from recovering damages. It all depends on the jurisdiction. Certain jurisdictions still follow the common law in having contributory negligence be an absolute bar to recovery.
Generally, products liability claims succeed where the finder of fact determines that the plaintiff was injured or suffered losses, the product is defective, the defect is the cause of the injury and the way in which the plaintiff used the product was intended or reasonably expected by the manufacturer.
In products liability cases involving product design and products defect of items such as automobile components, construction tools, household appliances, and swimming pool filters or water slides, a safety expert assists a plaintiff or defendant in demonstrating whether a product met industry standards. They can also prove an alternative design, and analyze whether any superseding negligent acts broke the chain of causation.
For example, in a case involving a kitchen worker who brought legal action against the manufacturer of a meat grinder, the appeals court found that the proposed testimony of a safety expert witness was improperly excluded. The court found that the licensed engineer who had more than 30 years of experience working with machine safety and warning systems was qualified to provide expert witness testimony regarding product design and adequacy of warning labels. In Romero v. ITW Food Equipment Group, LLC, the court held that the safety expert’s professional qualifications and experiences rendered him qualified to reliably testify to the design and warning defects. 2013 WL 5817670 (D.D.C. Oct. 30, 2013) Moreover, the court noted that such testify “is of course highly relevant to Plaintiff’s strict liability claim; indeed it is the evidentiary centerpiece of the case.”
Examples of the Persuasiveness of a Safety Expert Witness
Case Example: How a Safety Expert Witness Helped a Plaintiff Win
Wielgus v. Ryobi Technologies, Inc. 893 F.Supp.2d 920 (N.D.III. 2012)
This products liability case involved a plaintiff who was injured by a table saw. He alleged that the defendants were liable under claims of negligence, breach of implied warranty and strict liability under Illinois law (R.84). This was because they failed to include available safety measures, namely a flesh-sensing technology and an independent riving knife. He sought to prove that the saw was thus unreasonably dangerous when it left the control of the defendants in 2005 and that a feasible alternative existed at that time.
The testimony of the plaintiff’s expert witnesses greatly held the plaintiff establish the elements of his claims. It resulted with the defendants entering a confidential settlement agreement with the plaintiff.
At trial, the plaintiff called two safety experts. Defendants sought to bar their testimony on the grounds that their opinions were not reliable or sufficiently supported by the facts. However, the court ruled that Stephen Gass, the inventor of the flesh-sensing technology and Darry Robert Holt, a mechanical engineer specializing in table saw safety, were both qualified to testify.
Gass testified that the table saw could have been redesigned to incorporate flesh-detection technology. As a result, had the technology been utilized, the plaintiff’s injury would have been minor. He also opined that including the technology would have only slightly raised the product’s price, by only $100-$150. The court ruled that the inventor of the proposed safety alternative was clearly the most qualified safety expert to opine on the technology’s incorporation into the table saw model that caused the injury.
Holt’s testimony focused on design defects in the BTS10S which caused the plaintiff’s injuries. He ran tests on saws equipped with flesh-sensing technology. Demonstrating that the plaintiffs’ injuries could have been prevented had the saw had been equipped with flesh-sensing technology.
The court found that Holt’s 35 years of consulting experience on product safety and expertise on table saws qualified him to testify as an expert witness in the case at bar. Holt was also allowed to opine that the defendants failed to engage in an industry-acceptable risk/hazard assessment, which would have concluded that the table saw’s guard assembly was not fit for use.
Case example: How a Safety Expert Witness Helped Exonerate a Defendant
Benniefiel v. Stine, L.L.C. 112 So.3d 997 (La.App. 3 Cir. 4/3/13)
A store customer alleged that she was injured as a result of the store owner’s negligence. An expert witness helped to demonstrate their innocence.
The plaintiff testified that in loading the Christmas tree she purchased from the defendant store owner, a paper flew off the dashboard of her car. In retrieving it from the temporary fence which partitioned the store owner’s lot from the parking lot, the fence fell. As a result, the plaintiff sustained injuries to her knees and arms.
However, the defendant’s safety expert pointed out that the fence was intended to separate people from the traffic. He opined that “the fence was reasonably safe for its intended purpose [of preventing people from walking into traffic], had utility, and was consistent with industry custom and practice,”. This is especially true in light of the fence’s four block design being the customary design used by other businesses. The expert focused on the fact that the fence did not itself contribute to the accident; instead, the fence fell following the plaintiff leaning onto the fence and putting their full weight on it. He testified “that it should be obvious to someone in Plaintiff’s position that the fence was a temporary structure not meant to be leaned on.”
The plaintiff’s expert witness “testified that the fence was a display to show goods and that it would not be realistic to think that no one would ever touch it,”. However, the court was more swayed by the testimony provided by the defense’s expert witness.
How to Hire a Safety Expert Witness
After determining the subject matter expertise that will best help to prove your case theory, The Expert Institute encourages attorneys to thoroughly vet their expert witness.
A safety expert should meet certain education and expertise standards. Lawsuits pertaining to safety generally involve specialized issues that may not be familiar to all types of safety experts. It is generally recommended to hire an experienced and knowledgeable specialist, rather than someone with generalized experience. A safety expert should have a relevant background and work experience. Hiring an engineer to evaluate a construction defect is a great trial tactic; however, if that engineer has little experience pertaining to steel erection, then he may lose credibility on cross-examination. The court may then rule the proffered testimony to be inadmissible.
Before hiring your next safety expert witness, it is to best to meet and speak with the expert to assess their qualifications, subject matter expertise, and ability to explain complex and technical language and theories. The Expert Institute always provides an opportunity for clients to discuss their case with each expert they consider hiring. We offer this service for no charge. It is critical that an attorney hire an expert witness who can communicate detailed, scientific matters to the trier of fact in simplified terms.