In This Episode…

We sat down with product safety expert, Gary Bell, and discussed what he refers to as the role of intangibles, “I call them the emotional balance and the role of the intangibles, the things that you’re going to run into and how to keep your head straight.” Being in the right mental state is crucial in the role of the expert. He remarks, “[the] expert has to play between confidence and hubris, emotion and empathy.”

Additionally, we talked about the practical differences among locations. Gary states, “Attorneys prep their experts in different ways . . . a lot depends on the jurisdiction and the court that you’re in.” Other topics are empathy instead of sympathy, maintaining expertise, and underestimating opposition.

Episode Transcript:  

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Gary Bell, Product Safety and Liability Prevention Consultant

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host Noah Bolmer, and today I am excited to speak with Gary Bell. Gary is a highly sought-after product safety and liability prevention consultant with over 30 years of experience in Consumer Product Safety. He specializes in liability prevention and the legal concept of duty. He has worked as an expert with counsel for both plaintiff and defendant sides, and Gary holds an M.S. in operations management and a B.S. in Earth Science. Gary, I appreciate you taking the time to join me today for the Discussions at the Round Table.

Gary Bell: Thank you for having me, Noah. I hope to shed some light and share some good experiences with the folks.

Noah Bolmer: You have been in product safety and liability for over 30 years now. How did you get into that field?

Gary Bell: I started back in 1979. My background before that was in quality assurance and quality control, and the company hired me to look at some product safety issues. It was a good fit because you are concerned about preventing defects as a quality person. As I got to know the background of this area and product liability prevention, I learned if there are no defects, there is no product liability. I read where the restatement of torts called out three types of defects: the design defect, the manufacturing defect, and the warnings defect. It was a natural fit for me. Attorneys do the law, and I look at the issues from the defect and the defect prevention standpoint. I have given many depositions, and as you said, I testify for both plaintiffs and defendants. I hold steady to principles and ideals, and it does not matter which side of the fence the case is on. If I can represent my feelings and principles, I will make it defendant vs. plaintiff.

Noah Bolmer: I have been asked several times about the difference between working with a plaintiff and a defendant. Are you telling me that it is the same either way?

Gary Bell: I think it is the same. The plaintiff is more direct regarding filing issues, whereas the defense usually goes through the insurance companies and other things. There is a little more structure, but regardless of which side of the case, I represent the same position and try to fight for what I think is right.

Noah Bolmer: I would like to hear about your first engagement. With experience going back to the 70s and before, it is unsurprising that you have been tapped as an expert. How did that kick-off go?

Gary Bell: The first one was successful but scary. We had good experts, and I was the company representative. We were in a case where the experts played well to the jury. The plaintiff’s experts, maybe not so well. It was successful. I want to talk about the pitfalls I call the emotional balance and the role of intangibles. What will you run into, and how to keep your head straight in these things?

Noah Bolmer: Walk me through that.

Gary Bell: First, I am an expert witness for a business. I find that most people I have talked to in companies where I work have said after getting off the stand, “Wow, I never want to do that again. Do not ever ask me.” We do this time after time, and there is a balancing act that an expert has to play between confidence and hubris, emotion and empathy. That is the key; emotions can lead people to where they expect them. The emotions that come are an area where I constantly have to stay tuned in. I have three points along that line. The first is that as a technical expert, you have engineers, doctors, and technical experts, and you like to think you are dealing with rationality, logic, and technical accuracy. But in trial situations, those things do not always matter. There are two cases I would like to compare and contrast. The first one was the second case after winning the first one.

Noah Bolmer: Let me back up and ask you what period we are in. Are we in the 70s? Are we in the 80s?

Gary Bell: We were in the 80s, but the principles hold today. The first case involved an industrial product sold and used widely. It had a relatively clean track record with no injuries. In this case, the product was installed in a school, and the contracting company that installed it got it wrong. They did not follow the instructions, and the teacher at the school decided to check and make sure that this product was safe for his students.

Noah Bolmer: Okay.

Gary Bell: He did something reckless and had a couple of fingers amputated. We were sued. In this case, looking at it from the logic, reality, and technical accuracy standpoint, the company should have never been held liable. It was a good product that had a good track record. It was installed incorrectly by a third party, but things went off the rails. First, the installation company was not well known. We were a well-known and well-respected name in this kind of business product, but people in the general consumer products and those on the jury probably never heard of this company. All they knew was we were a big company that was a division of another big company, and we must have deep pockets. Second, the third-party installation company had vanished by the time the case went to trial. That was the empty seat at the trial, which lawyers will tell you not to do. Third, I think the injured teacher and his wife were beautiful. I wanted them as my neighbors. I referred to it as Ozzie and Harriet going to trial. For those younger than yourself, Ozzie and Harriet had a TV show in the 50s. They were an idyllic middle-class couple with two teenage sons; everyone smiled and was happy. Life was good in middle America. They were lovely people. Well, here you have a man who was a teacher that was severely injured. We do not have any blame here, but what does the jury do? They come back with the settlement for the teacher. It stung. Based on science, you think, how could we possibly lose this? Let me compare that with the second case.

That was a case where the product was a widely sold consumer product. Everybody knew the name. The company had a good reputation and a good product. The product allegedly failed and caused severe injury. Unlike in the first case where there were two amputated fingers, harm was very apparent. We had a plaintiff talking about a closed head injury and traumatic brain injury. It did not seem to add up with the facts presented in the case. It was a situation where the medical proof was in contrast to two amputated fingers. Anyone could see you had medical experts up there talking about these injuries in terms and situations that were not always clear to the jury. I think it is beyond the scope of many people’s knowledge. This case was in the mid-1990s when people knew about closed head injury issues through football injuries, et cetera. It was not evident to the plaintiffs that rather than Ozzie and Harriet, I would say that the whole case seemed to have a sinister feel. Not to cast dispersions, but it did not feel right sitting there. It took about 90 minutes for the jury to select a foreman, have lunch, and come to a defense verdict. You could see that was a quick decision on their part too. The lesson I learned, and new experts should remember, is that the technical expert may rely on fact and science, but people guided by emotions populate the world. People often see what they want to believe, no matter how hard they try. In your presentation, your expert report, and even your deposition, some issues can trump where you are and overwhelm your objective scientific position. It can be disappointing and can happen. That is my first lesson.

Noah Bolmer: Are there any attorney strategies you can use that help prepare for that? As you said, there is a dichotomy between a case you feel should go one way and one you believe should go another. As an expert, you are supposed to be neutral and state what you are an expert on, but do you have any strategies for making that work in the real world? Are there things attorneys can do to help prepare you and remove the mindset of what is right or wrong, and put you more into telling the truth about the subject matter on which you are an expert?

Gary Bell: My advice is to let the attorney lead the discussion. They know how far they can take it in different jurisdictions and trial settings. That is perhaps one of the more frustrating things I have seen between being an insider versus an outsider. Attorneys will prepare you in different ways. I think much depends on the nature of the expert. I think the best preparation is when I go out to dinner with an attorney and, he casually asks me, “What do you think?” I tell him what I know. He gives me the facts as he sees them. He gets to know me first before the preparation, where you sit down and have to learn the lines. Some preparations go like that. I think the attorney has to trust the expert they hire. Trust that they are representing the position the attorney wants to take. Trust the expert will comport and present the objectives of the case in a clear, consistent way. I hate to get pushed into a corner of saying that and do not say that.

Noah Bolmer: Does that happen?

Gary Bell: It can and has. It is not to say that the attorney is telling me what to say. It is the attorney telling me how I should say it. Some are more controlling than others.

Noah Bolmer: Okay.

Gary Bell: The principal truth is never in doubt. Why am I there testifying? But it is sometimes a function of how you say it.

Noah Bolmer: When you were talking about preparation and what works and what does not work. How does that pertain to cross-examination? How is the preparation for being an expert in front of the other guy’s side?

Gary Bell: When people ask me, I say tell the truth. You try to answer yes or no. Do not be afraid to say you do not know. For me, it boils down to that simple of a thing. The fourth point is to listen carefully to the question. Sometimes the attorney will stop, and you wait and listen to see if a corollary issue comes along. Wait and be patient. Always tell the truth. Answer yes or no if you can, and do not be afraid to say I do not know.

Noah Bolmer: That is a big one. One thing I have heard from many experts I have interviewed is not to offer more than is asked.

Gary Bell: Exactly.

Noah Bolmer: What does it mean to you to remain an expert in product liability? It is a broad field. There is federal, state, and local jurisprudence. There is a large amount of expertise to maintain. How do you maintain that expertise?

Gary Bell: That is a good point. You are a good host because you keep leading into a good segway for me. I keep engaged by participating in Technical Standards Committees. There are several that I am involved with right now. I have been a member of many of them as my career has progressed. It is a great way to meet people, keep them advised and apprised of what is happening, and make things happen in those areas. I was the chairman of the ANSI Z535 Committee for about 20 years.

Noah Bolmer: Is that where you guys said the colors for safety are red and orange and whatnot? Is that correct?

Gary Bell: That is correct. The ANSI Z535 Committee started at a time when the duty to WARN was a very nebulous concept. We feel that we have the best practice standards for how to convey information to the end user. I saw and heard a lot of research. Over several years, we developed the standard that is still under development today. Keeping engaged in those sorts of activities is a primary way of staying in the game if you will. It leads to another point that I was going to make. That is, I think litigation is like unarmed warfare. There is an old saying, the enemy of my enemy is my friend. Let me give you two examples of this before we talk about standards committees. It is important, especially if attorneys are listening, that you get on these committees. There are many depending on the scope of the committee, maybe. Many competitive companies are involved and that can raise questions about antitrust, since the hydro level, an SME’s decision in 1984. I am on an Underwriters Laboratory (UL) committee. I am on several with the ASTM and they all start their meetings with the reading of antitrust rules and guidelines, and the staff member who is there says, “Hey, you guys go off the rails, we shut down the meeting and oh by the way, there is no rump sessions after the meetings.” These meetings are helpful to a company because they keep you refreshed as to what the latest safety requirements are. But sometimes I say the enemy of my enemy is my friend. I was a member of the national fire code committee for several years and a few other committees with several competing companies. I got to know the guys and developed a cordial professional relationship. It turned out, one of them retired. He was the director of engineering for that company. My company got into a lawsuit, and it involved a piece of equipment that was mutual to both companies. His company and mine made this type of product. Well, he just retired, and I said, “You know old Henry over there would make a pretty good expert witness if we could get him.” Keep in mind Henry was kept under retainer by the company that he retired from, and so he had a relationship. We talked to Henry, and he said, “Well, let me talk it over with my boss and his boss said, “OK because we are all under the same regulations. We all try to follow the same standards. We are all together in the safety area.” What you say in defense of my company is also going to be a defense of his company. When Henry showed up on the witness list as the retired Chief Engineer for this competitor to speak on behalf of our product design that had to be a little swatting to the plaintiffs’ attorney, to say the least. So, my point is that you never know when good relationships through technical committees can be beneficial.

In another case I was involved with, we had a spate of silicosis lawsuits down in Texas and there were about 60 defendants identified in this grouping of lawsuits, and there was a group that was referred to as a respiratory protection equipment group.  We were part of that group. I gave a deposition in a couple of those cases and there were about a dozen attorneys in the room. Some of the attorneys did not care about us. Some were very adversarial and what I found was that our marketplace competitors circled the wagons around me. They threw me questions that I could answer truthfully. For example, what should be done before someone uses a piece of equipment to assure it is working properly?

Noah Bolmer: Oh right, trying to use you for that. I got you.

Gary Bell: They are using me to benefit from their position. It benefits my position and sometimes certain people can get less than loving their company’s competitors and sometimes those competitors can be a real help to you when you least expect it. It is always good to not be negative about somebody just because they happen to be on the other side of the fence today. They may be your best ally the next day, I have another expert witness friend on the first cases where we won. UMI had there were two expert witnesses in an area. Both represented opposing views, and both were on the ANSI committee. Over time, I asked our witness, “Do you still testify against him?” They said, “Well, no. Sometimes we testify together. Sometimes we are on the same page” So when you try to go for what is right, what you feel is technically correct. You cannot look at competitors as enemies. They may not. They could be your friend someday the other.

Noah Bolmer: As an expert, how important is it to be on the winning side?

Gary Bell: That is one of the things that I find frustrating as the inside guy. You know how strongly it went. What were your highs, what were your lows on the outside? Sometimes I get a call from an attorney whose case was settled saying, “Thank you. You were a help. Thank you.” You never know. It is like the Dominion vs. Fox case. We all know how much money they got. But now all the pundits want to know what happened. Why did they wait to settle on the courthouse steps? What were the financial calculations here? Was there a risk of shareholder loss or something like that? So, I think that one of the emotional frustrations and things that I have grown to accept is that as the outside expert, you are not always going to see all those good inside snippets. Another thing I would like to say is to never underestimate your opponent. That is a tenant from a guy named Sun Tzu. He was a Chinese philosopher back about 500 BC. The Art of War and his document are still being read at the military academies. I read it when I was an officer in the Air Force.

Much of what he says applies to trial time and objectively trying to understand where your opponent is coming from. I see some people say, “Oh. He is a jerk.” The attorney does not know what they are doing or that the expert is a “jerk” etc. Let’s take the time to understand where they come from, what they are trying to say, and how it may shape your position. I think most importantly it helps strengthen your position. I hate it when people just plant a flag that says, “This is a dumb case. That’s a money-grubbing attorney and the witness doesn’t know anything.” I think that is a very dangerous position. I think a corollary to that is the preparation of the expert. I have given many presentations to groups at universities, and I find that the more I prepare and the more nervous I am before the presentation, usually the better it goes.  I think when you get to the point where you think. You know it. When you think you have got it in the bag and can mail it in, that is a dangerous position. It says your heart is not in it. You are not doing the work. You think you got it in the bag. That is when maybe you ought to quit doing what you are doing. I hear some people retire from sports saying that my heart just was not in it anymore. So, it was time to retire.

Noah Bolmer: When you say the more you prepare, what preparation are the nuts and bolts that help you get ready for a case? Especially where you do not necessarily know the law. Let’s say that this is a slightly different jurisdiction than you are used to. Somewhere that you do not know everything up and down.

Gary Bell: First, I do not know the law period. I do not pretend to be an attorney. What I depend upon is reading all the discovery materials that the attorney will send me. Sometimes it may not seem like a medical report is germane to my analysis of the adequacy of materials. At the same time, it gives you empathy and curiosity that makes you understand that this case is not whimsical fiction and that someone went through hell and then some to reach the medical level of improvement that they have reached.  I think things like a medical report may not affect my opinion, but it does affect my understanding and my empathy. I think those are important not to put an emotional flag in the situation, but understanding and curiosity help you understand the case.

Noah Bolmer: Absolutely. When you talk about emotional curiosity and investing yourself into the case, is that ever counterproductive? I hear some people say never get involved, never become emotionally involved in a case just answer the questions and leave. It does not matter if you want to lose. Then, I heard other opinions, like what you have stated, which is that it does improve understanding on both sides and makes you a better expert. I would like to get into that just a little.

Gary Bell: I think when I say empathy it is not to be confused with sympathy. Sympathy means you are looking at it and are ready to get out the crying towel and weep big alligator tears because you feel bad. Empathy is objectively understanding the other side’s position and what I am preaching here is that the opposite is to say that side is wrong. Initially, you want nothing to do with it. I have a person in mind. I won’t say his name, but when something bad happens it is like, “Oh. They are full of beans. They are wrong.” It is like, wait a minute. Maybe we better understand what is going on here. It is not about getting emotionally involved in the case, but it is to break down the wall preventing you from understanding what the case is about and where the other side is coming from. There was a movie called The Fog of War and I cannot think of the guy’s name. He was the Secretary of Defense during Vietnam. He went back there years after he said, “If only we would have had empathy.” He contrasted the Cuban Missile Crisis and the outcome there with having the empathy to understand where Khrushchev was coming from, and the morass that we got into in Vietnam by not taking the time to understand with empathy, where the Vietnamese were coming from. The conclusion was if we had just taken the time to do that maybe we would not have wound up where we did. That is where I am going. Sympathy and empathy are two different things.

Noah Bolmer: Before we wrap up, is there any other advice that you would like to share with prospective experts or even attorneys?

Gary Bell: I had two points. First, do the work. Never assume that you can skate based on what you think you know and never, never underestimate your opposition. Secondly, it is better to be empathetic than to become intractably attached to an emotion-based concept. That is where I am going with empathy. Some people get so dug in on an issue that they do not try to understand what is going on in the big picture. They dug a hole deeper and deeper for themselves.

Noah Bolmer: Thanks again to Gary Bell for chatting with me here today.

Gary Bell: Thank you, Noah. It is my pleasure.

Noah Bolmer: This is Noah Bolmer and I look forward to you joining us again for another Discussion at the Round Table.

Gary Bell, Product Safety and Liability Prevention Consultant

Gary Bell, is a consumer product safety consultant with special expertise in the "duty to warn" area. He led the development of ANSI Z535 standards in signage and labels. He has served on numerous standards panels and subcommittees, including for Underwriter Labs and the American Society for Testing and Materials (ATSM).