Technological advancements and continuous developments impact (and mostly ease) many daily living activities. We get groceries delivered via apps on the fridge, and a slim wrist gizmo can alert us when it is time to go for a walk or take medications. The latest technological developments will impact the personal injury litigation realm as well.
When it comes to a plaintiff’s damages, attorneys resort to expert witnesses specializing in fields such as life care planning, plastic surgery, or prosthetics, all to provide contrasting opinions on what the plaintiff will likely need (or not need) in future care. The battle of the experts is not an uncommon portion of trial. But while greatly renowned in their specialties, are these professionals well-versed in today’s technological advancements to question and diminish plaintiffs’ claimed damages? Can the economist assess the cost and need of smart garments for an amputee plaintiff? Can the life care planner reduce the cost of attendant care – usually the biggest overall expense – by proposing AI or smart gadgets for a plaintiff with a spinal cord injury? And, if so, is the best presentation of these issues just using the same categories of experts who are “cross-trained” in technology? Or should there be a separate class of experts who focus on addressing case-specific technological advancements?
Consider an example: Retailers and designers have launched new adaptive clothing lines, combining fashion and function. They offer clothing designed for people with disabilities, who find it difficult to dress independently or are sensitive to certain textures and materials. Plaintiffs with limb or burn injuries may fall into this target consumer group. Where plaintiffs seek to recover full-time assistive care as part of their damages due, in part at least, to their inability to dress themselves, magnetic closures, one-handed zippers, easy on/off shoes are just a few examples of adaptive apparel hitting retailers. With such trends becoming more common and more attainable, which expert could best help the defense? If the expert has never heard of adaptive apparel, is a thorough, zealous defense being asserted?
In the federal court realm, Fed.R.Evid. 703 may shine some light on the iExpert testimony. The rule permits experts to rely on opinions of other experts. But the expert must, in the end, be giving his or her own opinion. Therefore, a lead testifying expert in the field could gather opinions from more tech-savvy individuals to provide counsel with a formulaic approach for damages. Soon, however, defense counsel should begin to demand that lead experts also be iExperts. Innovative attorneys and their experts will need to match the ever-emerging new technology to better serve their clients. In turn, the tech-savvy experts will need to integrate with or become the lead experts themselves.