Will Blog Comments Support Cross-Examination?

It has been held in a US case that allegations made in comments on blog posts are not sufficiently reliable to be used in cross-examination. In this case an expert was testifying in a product liability case that the defendant’s products had never caught fire before (as the plaintiff’s had). The plaintiff’s counsel wanted to point to a number of comments in blogs about fires in some of the same manufacturer’s products. The court denied the right to use those examples.

Is that right? How much reliability do you need? Are blog comments the cross-examiner’s Wikipedia? (It was not suggested that the comments had been inserted by or on behalf of the plaintiff…)

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Comments

  1. John,

    Maybe enough that there’s a valid basis for believing the alleged incident actually occurred and involved a version of the product in issue or one sufficient similar, which wasn’t the case here, based on the information in the link.

    If you’re referring to the summary at your link, it indicates the expert testified “there were no other reports of fire involving the Defendant’s product at issue” not that there’d been no fires at all. He’d have no way of knowing that (absent omniscience). In any event, the basis of the proposed cross would have been described, back in pre-Web days, as anonymous, unsubstantiated, unattributed, gossip that somebody had overheard while eavesdropping in a shopping mall, or waiting in a line somewhere.

    Apart from that? One more apparent problem with the plaintiff’s case is nicely – in the traditional meaning of “nice” – painted by the next summary, at the link sites home page, of another issue on which the plaintiff lost. This one’s worth quoting, because it’s about the plaintiff’s expert and provides seems to provide a good explanation for why the plaintiff was attempting to use gossip to discredit the defendant’s expert.

    “As an additional basis for excluding burn testing of a home theater component, the court ruled that the party offering the expert failed to show that the testing conforms to reliable principles and methods. The expert did not know the temperature or the amount of heat produced by the propane flame source that he used to ignite the exemplar. He admitted that the propane source would not create the same amount of heat or temperature as the power source that he identified as the ignition source. He kept no notes or contemporaneous records that could potentially show the soundness of his methodology. The party offering the expert failed to satisfy its burden of demonstrating that the expert’s testimony is based upon a reliable methodology.”

    In any event, for those interested in the games manufacturers, insurers, and their lawyers (sometimes) play, here’s a link to the decision we’re discussing and a link to the defendant’s earlier, unsuccessful, motion to dismiss.

  2. Addendum:

    John – I didn’t read the case decisions (people who know me just gasped), first, just enough of the first few paragraphs to know I’d found the correct decisions, so I am relying on the summaries at the first website. They seem to have been taken from WL so there’s some reason to believe they’re reliable enough (g).

    I’m still on an extended vacation.

    DC

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