Sent December 8, 2001

The December issue of Trial Magazine, Journal of the Association of Trial Lawyers of America, is devoted to the theme of Premises Liability (which is the category into which the courts put slip-and-fall cases), and it is really quite good. In fact, you should visit your local library and read it, if you don’t otherwise have access to it. Two articles are particularly relevant.

1. The Daubert Rule
Although I don’t recall ever having been affected by it, in 1993 a court ruled in Daubert/Merrell Dow Phamaceuticals, Inc. that "If scientific, technical, or other specialized knowledge will assist the trier of fact [the jury] to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."

This principle has been incorporated into the federal rules of evidence. Generally judges are to apply a test for admissibility of expert testimony: Does it involve scientific, technical or specialized knowledge [that a layman wouldn’t have], and is it reliable and relevant to the case? The testimony must be more than an opinion. It must be based on scientific investigation, and its reliability must be substantiated by testing that has been subjected to peer review and publication. The theory being presented must have some general acceptance within the scientific community.

Clifford Britt, the author of the article, goes on to say that "The judge must ensure that an expert, whether basing testimony on professional studies or personal experience, employs the same level of intellectual rigor in testifying that he or she does in conducting work not relevant to litigation." He then tells lawyers how to convince judges that they need experts to help the jury understand their cases, and he gives a very helpful sidebar on how to determine the need for an expert and what questions to ask prospective experts.

He makes quite a point of the advantages of selecting experts who have already survived Daubert challenges. How to Qualify In slip/falls cases one of the first criteria is certain experience and knowledge. Having read a good book on the subject [even Pedestrian Slip Resistance] isn’t enough to make you an expert. Aside from years of experience in a safety engineering job where one has oversight of a significant fall control program that achieved significant reductions in fall rates, the next best thing to put one on the first team in the big league of slip/fall experts is membership and active participation in F13 on Safety and Footwear Traction [see http://www.astm.org].

There is more slip resistance know-how in F13 than in any other organization I know about, and I am on six ASTM committees and several ANSI committees having to do with slip resistance and fall safety. Other powerful evidence of expertise is to be certified as competent with the English XL. This becomes particularly important if the opposition’s expert is not certified. One user who was certified last June, reports that his certificate has already been worth what it cost him many times over, because (1) it helps him get more expert witness cases. And (2) in at least one case he is opposing a tribometrist who has quite a resume, and even uses the XL but isn’t certified, and his technique is not according to that of the certified users (which sort of puts him outside the pale of peer-reviewed scientific methodology.) I can’t wait to see which one the jury is more impressed by.

Is Your Methodology Scientific?
If you are an XL user, you are in the company of many heavy slip/fall experts. [Check it out at http://www.englishxl.com/users.html]. The XL [see it in action on http://www.englishxl.com/movie.mpg] was engineered for testing of wet surfaces using patented technology incorporating dynamics analogous to what happens under a person’s heel while walking, and it is the instruments the experts use. The precision, repeatability and reproducibility have been tested in official F13 workshops that were witnessed by a large number of peers, both friend and foe. (Copies of the ANOVA report by Dr. Underwood are available for the asking.)

The XL has even been widely accepted in Hawaii, which has the highest threshold for scientific acceptability in the US.

2. Slip-and-Fall Litigation
Another useful article in the December Trial contains significant advice to lawyers about how to succeed in fall cases. It is pretty good, considering it is written by lawyers, who of course, know more about the law than they do about the safety engineering aspects of pedestrian safety. The authors are John McMahan and Brent Burks, who practice in Chattanooga. They have apparently used a consultant who is competent, and they have enough experience to know how to use experts effectively in fall cases.

Fall cases are the most commonly-litigated type of personal injury, but their success rate in court is only about 50%. The reason that fall cases don’t get more respect is that most are not well prepared and the lawyers often utilize "experts" that aren’t. Lawyers who select righteous cases and hire real experts, and who put the same kind of preparation into their fall cases that they do with other more glamorous types, do very well indeed. I have seen multi-million-dollar settlements in fall cases.

The McMahan-Burke piece points out the need for selecting cases carefully. They suggest that individual homeowners and mom-and-pop businesses can’t be expected to have safety engineering staff support and generally shouldn’t be sued in fall cases. They also understand the expertise that a qualified forensic consultant can bring to bear through testimony concerning standards of care in the design, construction, maintenance and operation of facilities in the industry, and experts should be used to identify such failures to perform prudently.

They also devote considerable space to telling how valuable an expert can be in helping to overcome motions to dismiss your case and how they can defeat the open-and-obvious defense ploy that is so common. Trial is written for lawyers who specialize in plaintiff’s work, but all of the principles mentioned above are equally applicable in defense work. I do about half-and-half plaintiff/defense. If the defendant did a bad job, I can help educate him to the proper standard of care by representing the plaintiff vigorously. On the other hand, if the defendant did an adequate job on safety engineering and management, or if the plaintiff’s case against him is not well-founded, I can work with the defense to help protect against groundless litigation.

It is important for the forensic consultant to only take righteous cases that he believes in. Those who will only work for the plaintiff or only for the defense tend to be prostitutes in their own right and have trouble convincing the ladies and gentlemen of the jury that they are true scientists who are interested only in representing the truth, if they will only work one side. If you do forensic consulting, which type are you?