A case against CASE.

Imagine the federal judge trying the case without a jury is stuck. The case is laden with confusing scientific issues with which the judge has little experience. A reexamination of the experts' trial testimony leaves many unanswered questions. The judge decides to appoint an expert and calls a Washington, D.C.-based science association for a list of screened "neutral" experts.

This scenario will become a reality in September, when federal judges will be able to retrieve lists of experts in medical, scientific, or technological fields through an American Association for the Advancement of Science (AAAS) pilot program called Court-Appointed Scientific Experts (CASE). CASE organizers said it will provide an institutional link between judges and experts, who judges are empowered to appoint under the rarely used provisions of Federal Rule of Evidence 706.

ATLA opposes the project, arguing that there is no demonstrated need for court-appointed experts, that "neutral" experts do not exist, and that the appointment of sanctioned experts can undermine the constitutional decision-making role of judges and juries.

The AAAS and some CASE advisory board members announced the launch of the five-year test project at a May press conference in Washington, D.C. Proponents cited a need for such a program because courts are dealing with an increasing number of lawsuits involving science and technology, and scientific evidence is playing a larger role in trials.

Mark Frankel, AAAS project director, said, "Judges increasingly need the assistance of independent experts who can help courts resolve these cases in a principled manner."

The American Association for the Advancement of Science is administering the project and guiding the development of policies and procedures. AAAS will not submit any lawsuits for CASE referral.

The project is open only to federal civil lawsuits in which a judge concludes that the traditional system of pitting defense expert against plaintiff expert might fail. Federal judges can either call or send a written request to CASE, whose administrators will determine if the lawsuit contains a broad scientific or technological issue.

Depending on the request, the program will provide an expert or a panel of experts culled from recommendations of mainstream experts in a specific field, other science associations, and universities. Although CASE managers assert that the experts' employment histories will be reviewed and screened for conflicts of interest, they admit that they will screen only for the most obvious conflicts and not the deeper institutional conflicts.

More details about recruiting and screening were unavailable because CASE is currently assembling committees to develop these procedures. These committees will be responsible for completing procedures, questionnaires, and policies before the project's launch in September.

Positions are currently being filled for four committees: a professional standards subcommittee, a recruiting/screening panel, an education committee, and an evaluation subcommittee.

The professional standards group will establish conflict-of-interest guidelines for the recruiting panel to use when screening experts. The education committee will develop promotional materials that inform experts about the judicial system and CASE. The evaluation subcommittee will create a survey and code of conduct for the Federal Judicial Center to follow when it conducts its evaluation of the CASE project.

Open process

Judge Pamela Ann Rymer, chair of the nine-person CASE advisory committee and a Reagan appointee to the Ninth Circuit, said judges would keep the expert selection process open to both parties. Both parties would be charged "reasonable fees" for the experts' services.

Although ATLA urges judges to trust themselves and the jury system, if a judge is determined to appoint a CASE expert, ATLA suggests members should consult with the judge about the selection and should be allowed to depose, obtain discovery from, and examine the expert as if he or she were retained by the opposing side.

It would be up to the judge to define the court-appointed expert's role in the trial. For example, the expert could comment on the qualifications and testimony of party experts, offer an independent assessment of the technical dispute in the case, and even assist in the damages or penalty phase of the trial.

This past June, judges attending the National Workshop for Federal District Judges in San Francisco learned about the expert referral service. CASE plans on attending the July workshop in Baltimore and the September workshop in Chicago to promote the project.

The role of experts in litigation has been in the spotlight since 1993, when the U.S. Supreme Court instructed judges to act as "gatekeepers" by carefully evaluating scientific evidence before admitting it. (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).)

In 1997, Supreme Court Justice Stephen Breyer seemed to ask for a referral service in his concurring opinion in General Electric v. Joiner. He referred to an amicus brief, submitted in support of the defendants by Marcia Angell, published in the New England Journal of Medicine. It argued for better use of judges' inherent authority to call on experts recommended by scientific organizations, "such as the National Academy of Sciences or the American Association for the Advancement of Science." (118 S. Ct. 512, 521.)

Speaking at the AAAS 150th anniversary celebration in February 1998, Breyer said, "I believe in this age of science we must build legal foundations that are sound in science as well as laws."

"An informed decision-making process is going to require a working knowledge of science and technology.... Judges don't have any ability to survey the scientific community," said Rymer at the May press conference. "We certainly hope the project will shed light on how the worlds of science and law intersect."

Some light has already been shed. In the Joiner opinion, Breyer referred to a 1993 Federal Judicial Center report about judges' appointment of experts under Rule 706. In the survey, of the 385 responding judges, 86 said they had appointed an expert and found this helpful.

Two-thirds of the judges who appointed experts used them in cases dealing with improper medical care, injuries resulting from products liability, or exposure to toxic chemicals. The study estimated experts were appointed for 225 cases.

Judges said they appointed experts when they needed technical expertise, when the parties' experts failed to present credible expert testimony, or when the judge could not make a reasonable determination on the disputed issues of fact.

Judges who had never used Rule 706 said they failed to recognize the need for expert assistance, respected the adversarial system, infrequently had difficult cases, or had trouble selecting an unbiased expert or getting the parties to agree to a compensation plan to pay the expert. One judge said asking the parties to pay for the expert makes it hard on lawyers to justify the expense when the expert could hurt their case.

Myths and misconceptions

During the May press conference, Richard Meserve, a Washington, D.C., attorney and CASE advisory board member, said junk science was rampant, and well-educated witnesses are given "extraordinary powers" when presenting evidence that addresses critical issues in the case. He added that jurors use rudimentary means to judge scientific evidence. For example, a juror will listen to technical testimony but make a decision based on the expert's tone of voice or style of dress, Meserve said.

At the press conference, Ned Miltenberg, ATLA assistant director for Legal Affairs, asked Meserve to cite studies supporting these assertions. Meserve replied that there were no studies. He said he relied on his own experience and anecdotes he had heard.

Meserve's comments typified some of the misconceptions ATLA says are embodied in the court-appointed expert project. In a policy paper titled "Myths and Misconceptions About `Neutral' Experts," ATLA argues against four assertions that form the ideological foundation of CASE.

The myths and misconceptions center on these four points:

First, CASE supporters contend that harmony exists between scientists and certainty in their views is the rule, not the exception. ATLA argues that scientific approaches are often profoundly different and disagreements among scientists can be prolonged. The policy paper cites the Daubert opinion, which stated, "There are no certainties in science." (509 U.S. 579, 590.)

Second, the program is based on the theory that a large number of "independent," "neutral" experts are available. ATLA warns that experts portraying themselves as independent invariably have a bias because scientists are influenced by culture, education, gender, race, and research funders. Federal research money has been replaced by funding from corporations that often "seek to control the agenda of sponsored research and the dissemination of its results," the policy paper said.

Third, CASE proponents assert that many judges and juries are incapable of critical decision making regarding scientific evidence. ATLA's paper points to an amicus brief written for the Supreme Court case Kuhmo Tire v. Carmichael (1998 WL 734434 (Oct. 19, 1998)) that noted that judges believe juries can make good judgment calls when a scientific or technical issue is involved. The paper also explains that the consensus among empirical researchers is that jurors are "quite capable of winnowing scientific wheat from nonscientific chaff."

Fourth, those recommending the use of court-appointed "neutral" experts say these experts will improve the judicial system. In response, ATLAs paper suggests that CASE might well undermine the jury system. The paper cites an Oregon Law Review article by University of Illinois law professor Ellen Deason: "An appointed expert is not necessarily any less biased in her approach to the issues than a party expert: therefore, her testimony should not automatically be accorded more weight. Furthermore, excessive deference may carry with it some independent costs. For example, confidence in the decision-making process is undermined if the decision-maker seems to be deferring excessively, even if the deference is given to an unbiased source." (Ellen Deason, Court-Appointed Expert Witnesses: Scientific Positivism Meets Bias and Deference, 77 Or. L. Rev. 122 (1998).)

ATLA agrees the courts are seeing an increasing number of cases involving difficult scientific and technological issues. Busy judges who may have little scientific training or experience may feel pressured to appoint "independent" experts. However, ATLA's paper states, succumbing to that pressure encroaches on jurors' constitutional role as triers of fact and undermines "the adversarial process that has stood at the heart of the Anglo-Saxon judicial system for more than 800 years."

Members can obtain the policy paper, "Myths and Misconceptions About `Neutral' Experts," by contacting Robyn Soares in the ATLA Legal Affairs Department at [phone], ext. 438.