A New Breed of Hired Gun

...To a certain degree, this growing reliance on experts reflects the growing complexity of modern life...

...A lot of cases come down to a battle of the experts,” says William T Pizzi, a law professor at the University of Colorado at Boulder...

...The lawsuits cost Beech, on average, $530,000 per case...

...Later, the study whose “tentative” findings were the principal evidence against the spermicide was repudiated by two of its authors...

...Justice is blind all right...

...Scientists think of causation in different terms than judges do...

...And perhaps most notably, the O.J...

...You get your expert at one extreme, and I get my expert at the other...

...In principle, at least, the Daubert decision dramatically raised the standard of admissibility for scientific evidence by requiring judges to look beyond the credentials of an expert witness and to delve into the methodology behind his findings, not to mention determining whether his research has been published and peer-reviewed...

...Meanwhile, in complicated cases, judges themselves have begun appointing independent experts of their own to slog through the morass of competing testimony...

...Other experts have argued unsuccessfully that Retin-A and Primatene Mist cause, respectively, “reactive airway dysfunction syndrome” and “multiple chemical sensitivity disorder.’’ On the product-liability front, Beech Arcraft analyzed lawsuits arising from 203 airplane crashes...

...Soon, no doubt, court dockets will be full of cases in which expert witnesses are testifying against expert witnesses...

...Of course, if all else fails, there’s always the threat of malpractice to keep experts in line...

...As one cynical attorney puts it, ‘You can hire an expert to say just about anything...

...At least that’s the theory...

...Death because he so rarely met a murderer he didn’t think ought to be executed...

...Supreme Court in 1993 gives judges more latitude to exclude dubious testimony from experts peddling not-ready-for-prime-time theories about everything from handwriting analysis to repressed memories of childhood sexual abuse...

...West remains a prosecutor’s favorite even though he resigned from the American Academy of Forensic Sciences after the ethics committee recommended his expulsion...

...In place of Frye’s general-acceptance test, Rule 702 said a witness could be “qualified as an expert by knowledge, skill, experience, training, or education,” which pretty much made everybody from Linus Pauling to Doctor Mom an expert on the common cold...

...Nearly 90 percent said they found experts credible...

...By 1923, the grumbling was loud enough to compel the U.S...

...The classic illustration of the chasm between the legal and scientific definitions of causation came in the celebrated paternity suit against Charlie Chaplin, who was found to have fathered a child even though blood samples conclusively proved that he couldn’t have been the father...

...A scathing indictment of expert witnesses, Huber’s book is admittedly more polemic than even-handed policy prescription...

...He was laid off from his first job after three months, fired from his second after six months, fired from his third after less than a year andxeleased from his fourth after two years...

...Disturbingly enough, most observers agree that the evidentiary standards for expert witnesses tend to be higher in criminal cases than civil suits, which keeps a lot of junk science out of court...

...You don’t have to be a rocket scientist to know what the attorney is loolung for,” lawyer Michael Kranitz says (There are) experts on everything from cemeteries and garage doors to theater and termites, not to mention William M. jones, who bills himself as "Mr...

...qualified to say these terrible things about Volkswagen...

...In recent years, courts have found that seemingly harmless PCBs caused cancer, that an acne medication caused brain damage and that an over-thecounter painkiller led to a liver transplant...

...Consider this rogue’s gallery of prosecutors’ dreams: Dallas psychiatrist James Grigson, dubbed Dr...

...Mistich wasn’t wearing a seat belt, and as the VW rolled over, she was hurled through the rear window...

...Even so, an appellate court affirmed the $5.1 million award, arguing that “it does not matter in terms of deciding the case that the medical community might require more research and evidence before conclusively resolving the question...

...Inevitably, there’s been a backlash...

...First of all, a researcher publishing in Scientific American must meet a much higher standard of proof than an expert witness testifying in court...

...While it’s unethical, if not strictly illegal, for an attorney to tell an expert witness what to say in court or during a deposition, it would be unprofessional, if not downright stupid, for him to hire somebody whose testimony wouldn’t help his case...

...But the Agent Orange and Love Canal cases of the ’70s spawned a deluge of toxic tort litigation...

...In other words, only evidence that was generally accepted by the scientific community could be admitted in court...

...Expert witnesses understand how the game is played...

...Serologist Fred Zain, a West Virginia state trooper and later chief serologist in the Bexar County (Texas) Medical Examiner’s office, indicted for perjury for falsifying results used to convict several wrongly imprisoned defendants...

...The late Louise Robbins, a college anthropology professor whose now-thoroughly-debunked footprint “expertise” was a featured element in 20 criminal cases in 11 states and Canada...

...Michael H. West, a forensic dentist with an unprecedented, even preternatural, ability to match wounds with teeth,weapons, fingernails, whatever...

...Certainly, with fees that reach as high as $1,000 an hour, there’s more than enough money around to keep expert witnesses in a top tzx bracket...

...More recently, a federal judge ruled that a spermicide caused birth defects despite a mountain of unrefuted evidence to the contrary...

...Although all of the accidents were attributed by federal investigators to weather, poor maintenance or pilot error, each of the plaintiffs blamed the manufacturer for the crashes...

...Experts, by definition, are the only witnesses permitted to testify about their opinions, and their opinions carry substantial weight...

...Less partisan observers say expert witnesses are an integral cog in the American judicial machine, and the vast majority of them, testifying in prosaic cases that generate no media buzz, are competent...

...This liberalized attitude was codified in the Federal Rules of Evidence adopted in 1975...

...that the accident, on its face, had all the makings of a textbook fatality: massive, fast-moving truck smashes into a tiny, nearly stationary car...

...When in doubt, judges tend to err on the side of admitting too much testimony rather than too little, then letting the jury decide whether it makes sense...

...According to one study, physicians’ insurance companies paid $18 million for medical experts to defend malpractice cases in 1992...

...And this being the OS, they were able to find not one, not two, but three experts willing to testify that Mistich died because the design of her car’s seat anchorage system was flawed...

...In my mind, the new standard is superior to the old one,” says Joseph L. Peterson, professor of criminal justice at the University of Illinois in Chicago...

...But more than ever, we’re seeing expert testimony on subjects that never before required it...

...Also, since the monetary stakes are usually lower on the criminal side, very few cases degenerate into trial by highly paid expert...

...Who knows how many others he consulted on...

...If, during cross-examination, an attorney can demolish an “expert” who claims that fill-in-the-blank (cellular telephones, photocopy machines, power lines) causes cancer, so be it...

...Never mind that she wasn’t wearing a seat belt...

...The question of causation in a tort case isn’t purely a scientific issue...

...Because who knows...

...Malpractice suits of this sort are on the rise, with a recent $42 million judgment against an accounting firm sending fear and trembling through the world of hired guns...

...By 1989, he had testified about the “future dangerousness” of one-third of the inmates on Texas’s death row...

...Although expert witnesses generally can’t be sued by the people they testifiy against, there’s nothing stopping their own employers from taking them to court...

...Frye worked reasonably well for several decades, largely because scientific evidence figured so rarely in court cases...

...According to a study conducted by The National Law Journal and LexisNexis, 71 percent of jurors polled said that experts influenced their verdicts...

...But this being America, the most litigious nation on the planet, Mistich‘s heirs hit Volkswagen with a product liability lawsuit...

...Third, the dozens of law review articles published about Daubert spotlight the widespread disagreement about the ramifications of the decision...

...First of all, the decision applies only to federal courts, and to date, it’s been adopted by fewer than half the states in the Union...

...Equally, if not more important, a landmark product liability case decided by the US...

...And sometimes, it would seem, deaf and dumb...

...A New Breed of Hired Gun In today's legal system, you not only need the best lawyers money can buy-but also the best expert witnesses BY PRESTON LERNER CARMEN MISTICH WAS TOOTLING DOWN St...

...Second, even in courts where it has been adopted, most judges have interpreted it as applying only to “hard” scientists, which means that it will have no effect on the vast majority of the experts who testify...

...A key witness in nearly 20 capital cases, he uses a controversial blue light to examine wounds invisible to the naked eye-and, apparently, all other forensics experts...

...When an attorney representing a family killed in an airplane crash calls up an engineer who specializes in metal fatigue, the dialogue pretty much writes itself...

...For example, after being stung by a series of particularly ugly misconduct cases, forensic scientists voluntarily raised their expert witness standards...

...I remember one case in which a prison inmate who claimed he was no longer using drugs tried to get another prison inmate who was a drug addict qualified as an expert on drug addiction...

...This somehow seems fitting: What goes around, comes around...

...Last but not least, there are those who question the ability of judges to make any more sense of esoteric scientific testimony than juries...

...According to court records, he’d been dismissed from one collegiate engineering program, was placed on academic probation by the electrical engineering and industrial design departments at a second college, then ended up getting a B.A...

...A no-brainer, right...

...As a result, several programs have been created to turn jurists into quasi-Mr...

...Among the most disturbing predictions is that Daubert will open the door to even more goofball science since it no longer requires a general consensus of the scientific community...

...It’s a political and social issue as well,” says Christopher Mueller, a law professor at the University of Colorado at Boulder...

...Partly on the strength of Bloch‘s damning testimony, the Mistich family won its suit against Volkswagen and was awarded damages in excess of $2 million...

...Truck...

...When he embarked on a career as a consultant/expert, often testifying against Volkswagen, he hadn’t worked on a single job involving automobiles, much less engineering...

...But while they’re required to tell the truth and nothing but the truth, they’re also being paid by one of the interested parties, and it would be naive to think that this has no effect whatsoever on their testimony...

...that the Volkswagen performed better than most cars in its class in a federal study of seat anchorage systems...

...The Mmich case highlights one of the most vexing currents in the American legal system: the growing reliance on expert witnesses, and the absence of clearcut standards regarding their expertise...

...Wizards...

...As recently as 30 years ago, the typical tort action involved a fender-bender at Fifth and Main, and the typical expert witness was a physician testifying in a medical malpractice suit...

...For centuries, for example, the time-honored method of impeaching eyewitnesses was to question their credibility under cross-examination: You wear glasses, don’t you, Mr...

...There’s an expert testifying in every field you can possibly imagine,” says Steven Babitsky, editor of The Expert Witness Journal...

...Things get murkier on the civil side, where the line between expert and advocate is often blurred...

...At the federal level, the rules of the game were comprehensively rewritten by the U.S...

...And then there’s the economist who testified in 154 Los Angeles-area cases from 1990 to 1994...

...Funny, because legal critics have been complaining about expert witnesses-about their unreliability and their willingness to say whatever they were paid to say-ever since these pointy-headed hired guns started testifying...

...The first one says, Yes, it definitely happened this way.’ The second says, ‘No, it couldn’t possibly have happened that way.’ What’s the jury supposed to do...

...Two months later, she died as a result of her injuries...

...Bernard Highway just outside New Orleans when a full-size pickup truck traveling at least 40 mph faster than her Volkswagen plowed into the back of her car...

...Truck...

...Though it may sound unseemly, witnessshopping is a key to success in many cases, especially civil suits...

...When you’ve got $3 billion product liability lawsuits being decided on the strength of junk science that’s just wildly out of whack with objective reality, and when you’ve got people being sent to Death Row because some lunatic shrink says he can predict “future dangerousness” on the basis of some criteria known only to him, then, yeah, you’ve got a problem,” says Peter W Huber, author of Galileo’s Revenge: Junk Science in the Courtroom...

...Supreme Court in the Daubert case, one of several suits alleging that the morningsickness medication Bendectin caused birth defects...

...They allow that, naturally, there are exceptions, but that these problems are often self-correcting...

...Now, experts are being hired to discuss the unreliability of eyewitness testimony...

...the worst seat anchorage system ever...

...In practice, though, the situation is more complicated...

...In some courts, by way of contrast, a statistical correlation between a product and a disease may be enough to justify a finding of causation even if nobody understands the mechanism by which the disease develops...

...Jones...

...By their very nature, product liability suits turn on complicated questions of causation that can’t be resolved simply by resorting to common sense...

...As Carol Henderson, a former federal prosecutor now teaching law at Nova Southeastern University, puts it: “If experts are professionals, they ought to be held accountable just like any other professionals...

...Hardly...

...Simpson civil trial featured no shortage of expert testimony, including much-publicized debate over whether a photo of Simpson wearing the notorious Bruno Magli shoes had been doctored...

...the weakest, minimalist seat anchorage ever put in a production car...

...State systems should be pressured to adopt tougher expert witness standards, and “soft” science should be held to standards at least as exacting as the more traditional disciplines...

...from a third school...

...The fact that there aren’t many full-time expert witnesses out there is less a function of propriety than the realization that holding down a day job makes their resume look more credible...

...The result...

...Judges generally responded by adopting a more relaxed standard toward the admission of expert testimony...

...The star witness in the case against Volkswagen was a self-proclaimed automobile design expert named Byron Bloch, who testified that the Volkswagen seat was “a unique aberration in design...

...Still, for these efforts to have any significant impact, Daubert will need to be expanded in jurisdiction as well as interpretation...

...Around the same time, a new breed of “soft” scientists appeared with novel and often untestable theories about human behavior and the causes of disease...

...Despite the defense’s strenuous objections, Bloch was permitted to testify as an expert witness...

...The accident could have happened anywhere, anytime...

...Twice reprimanded by the American Psychiatric Association, he’s since been expelled from the organization...

...A scientist demands what Mueller calls Rube Goldberg-style linear causation: A marble rolls into a lever, which strikes a match, which lights a cherry bomb, which then explodes...

...And who exactly was Byron Bloch, and why was he PRESTON LERNER is a Los Angeles-basd journalist, novelist, and playwright...

...There has even been talk, though no action, of establishing so-called science courts with panels of judges drawn from the ranks of eminent scientists...

...He has been qualified by courts across the land,” the judge ruled, “and I do not presume that all of them were incorrect...

...Expert witnesses are worried,” Babitsky says...

...Maybe fax machines will turn out to cause cancer...

...Daubert gives us a road map for what should be admitted and what should be excluded.’’ While a step in the right direction, Daubert will no more end expert witness abuse than a balancedbudget amendment will make the deficit disappear...

...Cause and effect are clear-cut...

...Supreme Court to adopt what’s known as the Frye standard, which established a general-acceptance test for admitting expert testimony...

...This isn’t to suggest that most, or even many, experts lie on the witness stand...

...Second, our adversarial system of jurisprudence seems-at least to lay peopledesigned to elicit a legalistic notion of truth rather than objective truth...

...Even as our culture is being dumbeddown, the number of experts is skyrocketing: The nation’s largest referral service, Technical Advisory Service for Attorneys, now has 24,000 experts on its rolls, up from 10,000 in 1987 Within the 758 pages of California’s The Legal Expert Pages, browsers can find experts on everything from cemeteries and garage doors to theater and termites, not to mention William M. Jones, who bills himself as “Mr...

...If not, well, them’s the breaks...

...One of the questions we hear at our seminars is, ‘Where can I get liability insurance...

...Finding the right expert witness is a how-to staple of bar journals and other trade magazines, and why not...