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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.

In today's legal system, you not only need the best lawyers money can buy--but also the best expert witnesses

Carmen Mistich was tootling down St. 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. Mistich wasn't wearing a seat belt, and as the VW rolled over, she was hurled through the rear window. Two months later, she died as a result of her injuries.

The accident could have happened anywhere, anytime. But this being America, the most litigious nation on the planet, Mistich's heirs hit Volkswagen with a product liability lawsuit. And this being the '90s, 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.

Never mind that she wasn't wearing a seat belt; that the Volkswagen performed better than most cars in its class in a federal study of seat anchorage systems; 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. A no-brainer, right? Hardly. As one cynical attorney puts it, "You can hire an expert to say just about anything."

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

And who exactly was Byron Bloch, and why was he qualified to say these terrible things about Volkswagen?

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. from a third school. 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 and released from his fourth after two years. 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.

Despite the defense's strenuous objections, Bloch was permitted to testify as an expert witness. "He has been qualified by courts across the land," the judge ruled, "and I do not presume that all of them were incorrect." 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. Justice is blind all right. And sometimes, it would seem, deaf and dumb.

The Mistich case highlights one of the most vexing currents in the American legal system: the growing reliance on expert witnesses, and the absence of clear-cut standards regarding their expertise. "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 the psychological impact reformers had hoped to see. Fewer people are including reliance on welfare in their plans for the future.

There is also good news from some states that are acting to soften the law's horrible features. For example, New York and 39 other states have asked for at least partial waivers of the requirement that food stamps for the unemployed be limited to 90 days.

The bad news is that way too little is being done about providing health care for the working poor, including those who leave welfare and then lose their Medicaid when they get jobs as we urge them to do.

At least Bill Clinton has proposed health insurance for the 5 million children of the working poor. But Republicans are opposing even this modest program. Their position seems to be, in the words of my friend Matthew Miller, "that insuring kids is just the camel's nose under the tent, the beginning of the slippery decline into socialism. Why, if we insure poor kids today, they argue, look out: Before long, every American may have decent healthcare coverage!"

The problem is not going to go away. Indeed, according to a recent study reported by Elisabeth Rosenthal in The New York Times, the problem is growing: "One quarter of New York City residents under 65 now have no health insurance at all: the exact figure is 24.8 percent, up from 20.9 percent five years ago....The number of children without insurance has gone up twice as fast as the number of adults."

One state, Massachusetts, has done something about the problem. It has enacted the Massachusetts Children's Medical Security Plan, which insures children whose parents earn too much to qualify for Medicaid but too little to pay for private health insurance. The program, financed by a 25-cent-a-pack increase in the cigarette tax, was enacted over the veto of the state's Republican governor, William Weld.

Some tapes of Lyndon Johnson's phone conversations were recently made public by the LBJ Presidential Library. Two of them, recorded on the same day in 1964, will make you weep. In one, Johnson is talking to one of the most powerful hawks in the Senate, Richard Russell, then the chairman of the Armed Services Committee.

Johnson mentions a sergeant he knows who he realizes might have to serve in Vietnam: "Thinking about sending that father of those six kids in there...and what the hell we're going to get out of his doing it? It just makes the chills run up my back."

Russell: "It does me, too. We're in the quicksands up to our neck, and I just don't know what the hell to do about it."

How then, could LBJ, with Russell's support, proceed to send more than 58,000 men to die in Vietnam? A clue may be found in something Johnson said to his national security advisor, McGeorge Bundy, that same day: "They'd impeach a president, though, that would run out, wouldn't they?"

A measure to allow casino gambling in New York state was defeated in late January. As you might expect, a coalition of religious groups played a major role. But some of their allies could not exactly be described as selfless. Prominent among them was that great moralist, Donald J. Trump, who it is suspected was not enthusiastic about having competition for his own casinos in New Jersey.

Have you heard about the danger you're in from those drivers with one hand on the steering wheel and the other holding a cellular telephone? As they hear their boss tell them they're fired or a lover advising them to buzz off, the risk of an accident increases fourfold, according to a study published by The New England Journal of Medicine. I have a solution. No talkee while car movee. If you want to use the phone, pull the car off the road and make your call.

Galileo's Revenge: Junk Science in the Courtroom.

A scathing indictment of expert witnesses, Huber's book is admittedly more polemic than even-handed policy prescription. 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. They allow that, naturally, there are exceptions, but that these problems are often self-correcting. For example, after being stung by a series of particularly ugly misconduct cases, forensic scientists voluntarily raised their expert witness standards. Equally, if not more important, a landmark product liability case decided by the U.S. 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.

At least that's the theory. In practice, though, the situation is more complicated. First of all, a researcher publishing in Scientific American must meet a much higher standard of proof than an expert witness testifying in court. Second, our adversarial system of jurisprudence seems--at least to lay people--designed to elicit a legalistic notion of truth rather than objective truth. 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. 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. If not, well, them's the breaks.

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

Experts, by definition, are the only witnesses permitted to testify about their opinions, and their opinions carry substantial weight. According to a study conducted by The National Law Journal and Lexis-Nexis, 71 percent of jurors polled said that experts influenced their verdicts. Nearly 90 percent said they found experts credible.

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. By 1923, the grumbling was loud enough to compel the U.S. Supreme Court to adopt what's known as the Frye standard, which established a general-acceptance test for admitting expert testimony. In other words, only evidence that was generally accepted by the scientific community could be admitted in court.

Frye worked reasonably well for several decades, largely because scientific evidence figured so rarely in court cases. 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. But the Agent Orange and Love Canal cases of the '70s spawned a deluge of toxic tort litigation. 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.

Judges generally responded by adopting a more relaxed standard toward the admission of expert testimony. This liberalized attitude was codified in the Federal Rules of Evidence adopted in 1975. 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.

The result? Even as our culture is being dumbed-down, 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. Truck." "There's an expert testifying in every field you can possibly imagine," says Steven Babitsky, editor of The Expert Witness Journal. "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."

To a certain degree, this growing reliance on experts reflects the growing complexity of modern life. By their very nature, product liability suits turn on complicated questions of causation that can't be resolved simply by resorting to common sense. But more than ever, we're seeing expert testimony on subjects that never before required it. 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. Jones? Now, experts are being hired to discuss the unreliability of eyewitness testimony.

Finding the right expert witness is a how-to staple of bar journals and other trade magazines, and why not? Though it may sound unseemly, witness-shopping is a key to success in many cases, especially civil suits. 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. Expert witnesses understand how the game is played. 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. "You don't have to be a rocket scientist to know what the attorney is looking for," lawyer Michael Kranitz says.

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. 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 tax bracket. According to one study, physicians' insurance companies paid $18 million for medical experts to defend malpractice cases in 1992. And then there's the economist who testified in 154 Los Angeles-area cases from 1990 to 1994. Who knows how many others he consulted on?

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

Consider this rogue's gallery of prosecutors' dreams:

Dallas psychiatrist James Grigson, dubbed Dr. Death because he so rarely met a murderer he didn't think ought to be executed. By 1989, he had testified about the "future dangerousness" of one-third of the inmates on Texas's death row. Twice reprimanded by the American Psychiatric Association, he's since been expelled from the organization.

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

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

Things get murkier on the civil side, where the line between expert and advocate is often blurred. "The question of causation in a tort case isn't purely a scientific issue. It's a political and social issue as well," says Christopher Mueller, a law professor at the University of Colorado at Boulder. "Scientists think of causation in different terms than judges do."

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. Cause and effect are clear-cut. 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. Because who knows? Maybe fax machines will turn out to cause cancer.

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. More recently, a federal judge ruled that a spermicide caused birth defects despite a mountain of unrefuted evidence to the contrary. Later, the study whose "tentative" findings were the principal evidence against the spermicide was repudiated by two of its authors. 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."

In recent years, courts have found that seemingly harmless PCBs caused cancer, that an acne medication caused brain damage and that an over-the-counter painkiller led to a liver transplant. 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 Aircraft analyzed lawsuits arising from 203 airplane crashes. 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. The lawsuits cost Beech, on average, $530,000 per case.

And perhaps most notably, the O.J. 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.

Inevitably, there's been a backlash. At the federal level, the rules of the game were comprehensively rewritten by the U.S. Supreme Court in the Daubert case, one of several suits alleging that the morning-sickness medication Bendectin caused birth defects. 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. "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. "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 balanced-budget amendment will make the deficit disappear. 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. 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. Third, the dozens of law review articles published about Daubert spotlight the widespread disagreement about the ramifications of the decision. 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.

Last but not least, there are those who question the ability of judges to make any more sense of esoteric scientific testimony than juries. As a result, several programs have been created to turn jurists into quasi-Mr. Wizards. Meanwhile, in complicated cases, judges themselves have begun appointing independent experts of their own to slog through the morass of competing testimony. 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.

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

Of course, if all else fails, there's always the threat of malpractice to keep experts in line. 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" Although expert witnesses generally can't be sued by the people they testify against, there's nothing stopping their own employers from taking them to court. 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. "Expert witnesses are worried," Babitsky says. "One of the questions we hear at our seminars is, `Where can I get liability insurance?"'

Soon, no doubt, court dockets will be full of cases in which expert witnesses are testifying against expert witnesses. This somehow seems fitting: What goes around, comes around.
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Author:Lerner, Preston
Publication:Washington Monthly
Date:Apr 1, 1997
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