What do butter-flavored microwave popcorn, a tire without nylon cap plies, a child restraint system, an asbestos-containing product, the chemical phosphorous pentasulfide, and an orthopedic knee implant have in common? On the surface, not much. But in the sometimes “Wild West” shootout called products liability, each has been the subject of claims for injury, each has involved the proffer of an expert’s defect causation theory, each has undergone the scrutiny of gatekeeping judges, and each has resulted in recent rulings precluding expert testimony as unreliable.
Let’s hone in on these recent decisions and peek at what is going on. Are lawyers pushing the liability envelope too far? Are experts offering opinions without doing their homework? Are experts for hire too readily finding causal connection between product and injury? Are judges probing more searchingly in executing their gatekeeping task to admit only evidence that is both relevant and reliable? The answer may be a little of the first three and a lot of the fourth. It seems as if the claimants’ lawyers and their experts are advancing “associations” between product and injury, but the courts, as they should, are demanding reliable proofs that comport with the scientific method and that meet established reliability criteria.
Microwave Popcorn
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