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January 22, 2018

The Role of an Expert Witness in Flame-Resistant Product Liability Cases

Why do I need an expert witness for a flame-resistant product liability lawsuit? This is a question that either plaintiffs or defendants might ask. This article is intended to provide some guidelines to assist in an answer to this question.

An expert witness provides insight into technical aspects of the case and may be retained by either side to assist in the litigation. Our company has substantial experience with the lawsuits, most of which settled. In many cases, the expert witness helps to resolve the case with pertinent information of a technical nature which promotes understanding between the two sides. While an expert witness is always “working for” one side, the ethics of an expert witness are to speak the truth and explain the facts of the case to the attorney, and potentially to the court, so that the case is resolved in an honest and informed manner. In most lawsuits, there is merit on both sides and when the technical facts can be resolved or fully understood, the two sides can see the strength of their case and attempt to reach some form of compromise or reconciliation. Flame resistant product failures are very rare, but hazard assessment issues, improper care or use can lead to a failure of a fabric or designed system.

Another area in which an expert can be of assistance to a client in matters of litigation is to provide information and assistance in interpreting appropriate test methods, performance standards, specifications, common practices and best practices. Generally, attorneys are not acquainted with the wide range of technical documents and research and their and applicability to a case under consideration. The following list is provided to assist the client in the selection of the applicable document based upon the specific circumstances of the issue under consideration.

Flame Resistant Clothing Test Methods:

• ASTM F1959 / F1959M – 14e1 Standard Test Method for Determining the Arc Rating of Materials for Clothing
• ASTM F2621-12 Standard Practice for Determining Response Characteristics and Design Integrity of Arc Rated Finished Products in an Electric Arc Exposure
IEC 61482-1-1 Live working – Protective clothing against the thermal hazards of an electric arc – Part 1-1: Test methods- Method 1: Determination of the arc rating (ATPV or EBT) of flame-resistant materials for clothing (Method A for fabrics and Method B for garments)
• IEC 61482-1-1 Live working – Protective clothing against the thermal hazards of an electric arc – Part 1-2: Test methods – Method 2: Determination of arc protection class of material and clothing by using a constrained and directed arc (box test)
• ASTM F1930-17 Standard Test Method for Evaluation of Flame Resistant Clothing for Protection Against Fire Simulations Using an Instrumented Manikin
• ASTM D6413-15 Standard Test Method for Flame Resistance of Textiles (Vertical Test)
• ASTM F2894-14 Standard Test Method for Evaluation of Materials, Protective Clothing and Equipment for Heat Resistance Using a Hot Air Circulating Oven

Performance Standards/Specifications:

• NFPA 2112: 2018 Standard on Flame-Resistant Garments for Protection of Industrial Personnel Against Flash Fire
• ASTM F1506 – 17be1 Standard Performance Specification for Flame Resistant and Electric Arc Rated Protective Clothing Worn by Workers Exposed to Flame and Electric Arcs
• ASTM F1891-12 Standard Specification for Arc and Flame Resistant Rainwear
• ASTM F2733-09 Standard Specification for Flame Resistant Rainwear for Protection Against Flame Hazards
• ASTM F887 – 16 Standard Specifications for Personal Climbing Equipment
• IEC 61482-2:2009 Live Working—Protective Clothing against the thermal hazards of an electric arc—Part 2: Requirements
• NFPA 1971: 2018 Standard on Protective Ensembles for Structural Fire Fighting and Proximity Fire Fighting
• NFPA 1975: 2014 Standard on Emergency Services Work Clothing Elements
• NFPA 1977: 2016 Standard on Protective Clothing and Equipment for Wildland Firefighting

OSHA Regulations:

• 29 CFR 1910.269 and proper interpretation of this standard along with the background.
• 29 CFR 1910.132
• 29 CFR 1910.300 Series Electrical Safety Standards for General Industry
• 29 CFR 1926.400 Series Electrical Safety Standards for Construction
• 29 CFR 1926.950-968 Series Electrical Safety Standards for Generation, Transmission and Distribution
• 29 CFR 1910.269 Series Electrical Safety Standards for Generation, Transmission and Distribution

Common Practices:

• NFPA 70E Electrical Safety in the Workplace (various years) and common or best practices in electrical safety
• NFPA 2113 Standard on Selection, Care, Use, and Maintenance of Flame-Resistant Garments for Protection of Industrial Personnel Against Short-Duration Thermal Exposures from Fire and common or best practice in potential flame and thermal hazards
• IEC 61482-2:2009 Live Working—Protective Clothing against the thermal hazards of an electric arc—Part 2: Requirements

Should a matter lead to litigation, the opposition in the case will most likely engage an expert to provide an opinion(s) relevant to the issue. Your consultant, in this case, will subsequently be engaged as the client expert for opinions and trial purposes. He will be familiar with those who will serve in this capacity for the opponent and will assist your attorney in countering their opinions.

To recognize errors and omissions and to assist the court in determining negligence, either professional or statutory negligence is the real job of the expert witness for the attorneys. A real expert can assist in “digging up skeletons” from the other side and bringing the facts to bear in the case. This process helps both sides to ask for the right things to avoid unnecessary or frivolous lawsuits. The goal of the expert witness is to assist in getting, and clearly assisting in presenting of, the facts pertinent to the case for the counsel.

Expert Witnessing and Scientific Testimony: Surviving the Courtroom by Kenneth S. Cohen from CRC Press is an excellent resource for the expert witness and helps explain to an attorney how scientific testimony works from the perspective of the technical expert witness.

 

A note from the author, Dr. Bill Baitinger:

In the preparation of this document, I am indebted to my co-author, Hugh Hoagland, and M. Stacy Klausing for providing research into test methods and standard specification and for other editorial assistance in bringing the article to publication. The staff of ArcWear is available to answer questions you may have and to provide details of consulting fees appropriate to your specific cases and needs. Contact us at ArcWear, 502-333-0510 or at flashcert@arcwear.com.

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