“As various pundits have observed over time, there are three kinds of lies: lies, damn lies, and statistics.” David S. Osterman and Earyn J. Edwards write in DRI’s For the Defense. “Accident statistics published by the government and other third-party sources have been admitted as evidence to prove generalized product risk and notice” in product liability and other catastrophic accident lawsuits, they explain. “Product liability defendants need to be prepared to address the uses and abuses of such information.”
In their article, Dave and Earyn, members of the firm’s Product Liability practice, discuss the sources of such information—including, notably, the Consumer Product Safety Commission (CPSC)—and the problems, limitations, and admissibility of third-party accident data.
Jurors are likely to place an undue emphasis on government statistics,” Dave and Earyn write. “Unfortunately, a plaintiff’s expert will do his or her best to manipulate available data to make the point that a defendant ‘knew or should have known’ about the particular product risk at issue. Defendants, therefore, need to be prepared to challenge the admissibility of other accident data, particularly from third-party sources, such as the CPSC and [the National Electronic Injury Surveillance System] NEISS. To do so effectively, however, it is important that counsel understand the source of the data to develop successful challenges to the reliability and admissibility of the underlying data. Defendants will want to engage their own expert (including, if necessary, a non-testifying consultant) to help review the NEISS data to help prepare for the opposing expert’s deposition and trial cross.”
David S. Osterman is a partner in the firm’s Princeton office, and concentrates his practice on handling complex civil actions and class action litigation with respect to manufacturers, retailers, and distributors of a variety of products. He has defended a wide range of product liability and catastrophic injury cases, including cases involving consumer, pharmaceutical, and industrial products; toxic torts; and complex commercial disputes. Dave is certified as a civil trial attorney by the New Jersey Supreme Court and has tried more than 50 cases to verdict in five states. Earyn J. Edwards is an associate in Goldberg Segalla’s Princeton office. She concentrates her practice on counseling and defending clients in a variety of general liability matters, with a particular focus on mass tort, product liability, and breach of contract claims. Her background includes representing clients in complex multidistrict litigation claims alleging wrongful death, breach of express warranty, design defect, and failure to warn.