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Find a Design Engineering Expert →Overview
A design engineering expert decides whether a product or system was designed through a sound process, and whether a safer alternative was available that would still do the job. The first half looks at what the designers did and knew. The second half asks what they could have done instead, at what cost, and with what new risks. This page covers the design process and alternatives. A broken part's failure mode belongs to a failure analyst, a warning's wording belongs to a human factors or warnings expert, and the law of product liability belongs to counsel and the court.
The expert reads requirements documents, design reviews, drawings and revisions, test reports, hazard analyses, failure mode studies, change orders, field complaints and competitor products. Much of the fight is about time. A design has to be judged against what was known and feasible when it was made, and a later fix may prove less than it seems.
State tests differ, and the risk-utility approach is the common frame. In Mutual Pharmaceutical v. Bartlett, the Supreme Court described New Hampshire's test, which has three factors germane to the inquiry: the usefulness and desirability of the product to the public as a whole, whether the risk of danger could have been reduced without significantly affecting either the product's effectiveness or manufacturing cost, and the presence and efficacy of a warning 1. Other states add a required showing of a safer alternative, and some use consumer expectations. Counsel should tell the expert which test applies before the work starts.
That second factor is where an engineer does most of the work. A credible alternative is more than a sketch. It has to be specified well enough to evaluate, tested where possible, priced, and checked for trade-offs, such as a guard that reduces one hazard but tempts users to remove it. Experts who name an alternative without building or analyzing it are exposed on cross-examination.
There is no single rule for design process, but the field has reference points. NIOSH's hierarchy of controls gives a preferred order for controlling hazards, and says elimination, substitution and engineering controls are more effective because they control exposures without significant human interaction 4. It adds that the most effective engineering controls are part of the original equipment design 4. That gives a design expert a structured way to ask why a hazard was left to a warning or to training. The hierarchy is written for workplace exposures, so its use for a consumer product needs explanation.
NASA's Systems Engineering Handbook shows disciplined practice for complex systems. It describes evaluating technical decision issues, identifying decision criteria, identifying alternatives, analyzing alternatives and selecting alternatives, with impacts on health and safety, technical performance, cost and schedule 5. It also says to perform and archive trade studies, and calls requirements traceability a critical factor in validating requirements 5. NASA's process is heavier than most companies need, so an expert should not treat it as a legal duty. It is useful as an illustration of what records a mature process leaves behind.
Missing records cut both ways. A company with no hazard analysis has a hard time showing it considered the risk. A company with a thorough one may have written down the hazard it later shipped. After sale, a manufacturer's knowledge can carry its own duty: a consumer product maker that obtains information reasonably supporting the conclusion that a product has a defect which could create a substantial product hazard must immediately inform the CPSC 6.
Engineering opinions face the same gatekeeping as science. In Kumho Tire v. Carmichael, the Supreme Court held that the trial judge's gatekeeping obligation applies to technical and other specialized knowledge, and that an expert must employ in the courtroom the same level of intellectual rigor that characterizes practice in the relevant field 2. Experience alone does not carry an opinion if the method cannot be explained.
Government design can be a defense. Under Boyle v. United Technologies, liability for design defects in military equipment cannot be imposed under state law when the United States approved reasonably precise specifications, the equipment conformed, and the supplier warned of dangers it knew about that the government did not 3. The fight is often over who really made the design choice.
Look for an engineer who has designed comparable products and taken them through testing and release, not only someone who has analyzed failures. Licensure varies, since many product designers work under an industrial exemption. Ask for examples of design decisions the expert made and defended.
The most effective engineering controls, NIOSH says, are part of the original equipment design.
Case Types
Design defect claims and safer alternative design disputes
Machine and equipment design disputes
Consumer product design claims
Design process and hazard analysis disputes
Patent and contract disputes over who designed what
Military and government contractor design defenses
Design change and post-sale knowledge disputes
Engineering services and design firm negligence
Qualifications
Related Specialties
FAQ
Look for an engineer who has designed comparable products and taken them through testing and release. Hazard analysis and design review experience matter, as does the ability to specify and test an alternative. Licensure varies, so weigh the practical record and ask for examples of decisions the expert made.
It should be specific enough to evaluate, tested where possible, priced and checked for new risks. A sketch or a general suggestion is exposed on cross-examination. State law decides whether an alternative is required and how it is measured, so counsel should identify the test early.
It weighs a design's benefits against its risks. In Bartlett, the Supreme Court described New Hampshire's factors: the product's usefulness to the public, whether risk could have been reduced without significantly affecting effectiveness or cost, and the presence and efficacy of a warning. Other states use different tests.
Yes. In Kumho Tire, the Supreme Court held that the trial judge's gatekeeping obligation applies to technical and other specialized knowledge as well as science. An expert must use the same intellectual rigor in court that characterizes practice in the field. State courts may apply their own rules.
For military equipment, Boyle says liability cannot be imposed under state law when the United States approved reasonably precise specifications, the equipment conformed, and the supplier warned of dangers it knew about that the government did not. The dispute is often over who made the design choice.
In general, design engineering expert fees are determined by the expert themselves, based on a variety of criteria. Among those criteria are design experience, licensure, testing needs and the volume of design records to review. Vident does have some influence over expert fees by comparing experts within a specialty, but ultimately it is a personal decision by the expert.
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