Tag Archives: expert witness

The Bygone Era of “Junk Science”

620-best-television-comedy-tv-show-ever-sanford-son.imgcache.rev1352136944844I remind myself that only a fraction of readers will be familiar with that cultural chestnut, Sanford and Son. You might ask: what’s worse, 70s era sitcoms built upon dismal racial stereotypes, or our present preoccupation with reality television showing us, in ever higher definition, how awful we really are? I digress, however; that’s a topic for a different blog.

Instead, let’s discuss “junk science.” In the majority of cases tried before a jury, the parties will desire to present the testimony of an expert in some field, such as injury or disease causation, standard of care or mental capacity. Of course, the opposition will want, if possible, to preclude this evidence. Popular techniques to preclude the evidence involve arguing either (1) that the expert is not really an expert at all; and/or (2) his opinion is not scientific–and thus likely to mislead the jury.

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held for the first time that, to be admissible, scientific evidence must be both scientifically valid and properly applicable to the facts at issue in the case.  The key here is scientific validity. To put this in historical context, the prevailing standard before Daubert derived from Frye v. United States. Under the Frye standard, expert opinion based on a scientific technique was only admissible where the technique was generally accepted as reliable in the relevant scientific community. This was also termed the “general acceptance” standard.

In theory, the Daubert Court was interested in weeding out “junk science,” though it used the term “absurd and irrational pseudoscientific assertions.” Later, in Kumho Tire Co. v. Carmichael, which extended the Daubert holding, Justice Scalia, in his concurring opinion, wrote that that a trial judge has “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Don’t call me fausse.

What is this “junk”? Justice Stevens gave one illustration, in General Electric Co. v. Joiner. He said:

“An example of ‘junk science’ that should be excluded under Daubert as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant’s future dangerousness based on the contours of the defendant’s skull.” 522 U.S. 136, 153, n.6 (1997) (Stevens, J., concurring in part and dissenting in part).

Oh, if only this worked! Alas, it would probably be about as accurate as the use of Penile plethysmography to convict sex offenders. This marginally invasive (I’m sure) test measures blood flow to a defendant’s penis to determine the level of sexual arousal as he is exposed to sexually suggestive content. That truly is “junk” science. (I couldn’t resist.) I can only assume the test, its use, or both, were conjured by someone who really liked Burgess’ Clockwork Orange.

0811868656Because I’m in a particularly philosophical mood, I’ll point out that one era’s “junk” is another era’s treasure. See, e.g., Copernican Revolution, Newtonian physics, Einsteinian Relativism, quantum mechanics, Mendelian inheritance. This phenomenon is known as a paradigm shift. Picture the egg dripping from Justice Stevens’ face when, in 2056, the last brain-researcher finally concedes that comparison of the contours of an individual’s skull is in fact the very best way to predict his propensity to inflict future harm.

In 2000, Federal Rule of Evidence 702 was amended in response to the line of cases starting with Daubert and culminating with Kumho. That rule now limits the testimony of an expert as follows:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”

Interestingly, many federal courts have resisted applying Daubert and the amended FRE 702. A sweeping article by George Mason University Law Professor David Bernstein, pointed out that, fantastically, many judges were either unaware of the amendment to one of the most important rules of evidence (really?) or they deliberately ignored it.  See, Bernstein, “The Misbegotten Judicial Resistance To The Daubert Revolution,” 89 Notre Dame Law Review 27, 50 (2013).

Preparing Your Witness For A “Reptile” Deposition

tyreIn my last post, I attempted to describe what has come to be known as the Reptile technique of discovery and trial presentation, as advocated in the book, Reptile: the 2009 Manual of the Plaintiff’s Revolution. Again, the goal with this technique is to invoke the reptilian brain of jurors, which thrives on evolution, and therefore maximizes “survival advantages” and minimizes “survival dangers.”

As Reptile becomes more common, it falls to us to ensure that our lay and expert witnesses are adequately prepared to deal with the technique during deposition. To better understand what your witness will be up against, here is an example of a Reptile examination of a medical expert concerning a doctor’s care:

“Q: Physicians are not allowed to needlessly endanger patients?

A: Correct.

Q: That’s the standard of care?

A: Yes.

Q: When diagnosing or treating, do doctors make choices?

A: Yes.

Q: Often, several available choices can achieve the same benefit?

A: Yes.

Q: Sometimes, some of those are more dangerous than others?

A: Yes.

Q: So you have to avoid selecting one of those more dangerous ones?

A: Correct.

Q: Because that’s what a prudent doctor would do?

A: Yes.

Q: Because when the benefit is the same, the extra danger is not allowed?

A: Yes.

Q: The standard of care should not allow extra danger unless it might work better or increase the odds of success?

A: Yes.

Q: So needless extra danger violates the standard of care?

A: Yes.

Q: And there’s no such thing as a standard of care that allows you to needlessly endanger a patient?

A: Yes.”

Imagine your client is a doctor. He/she treats a patient suffering from an ailment for which multiple treatment options are available. At least when I was in law school, we learned that a doctor is held to the standard of care that a similarly qualified practitioner would have performed under the same or similar circumstances. Yet, it is difficult to take issue with the “umbrella rule” that “A doctor is not allowed to needlessly endanger patients.” No one should be allowed to “needlessly endanger” anyone, right?

The rub here is the word “needlessly.” Sure, if there is a 100% fail-safe, side-effect-and-risk-free treatment option, then the choice for the doctor should be simple. In the real world, however, nothing is “risk-free.” Every treatment has risks and benefits which must be weighed and evaluated. And the jury must understand this. Practicing medicine is not a game of darts. The problem with the above set of questions, however, is that they (purposely) leave no room for the crucial weighing of risks and benefits. The Reptile strategy works best when jurors sense at a primitive level that the defendant doctor is out there, on the loose, preying upon unsuspecting patients, and the only way to stop him is by returning a monster jury verdict.†

The challenge for your witness, then, will be to ensure that she does not get boxed in by questions that leave out the weighing of risks and benefits. Remember I generally take an “activist” role in defending depositions, which means I will do everything within my (albeit limited) power to prevent my witness from being bullied into answering an unfair question. Thus, to a question like, “Physicians are not allowed to needlessly endanger patients?” I would object that this question is vague, ambiguous, unintelligible, overly broad and presents a hopelessly incomplete hypothetical. I would challenge the examiner to be more specific about what he/she means by “needlessly” and “endanger.” I would hope that, even if the examiner ignores my invitation to re-frame the question (as I expect she will), the judge will later agree that, in the real world of ailments and treatment options–and assuming the doctor did not perform surgery drunk–the phrase “needlessly endanger” is functionally meaningless.

Let’s assume, however, that the examiner ignores my objections and the court overrules them. The witness needs to be prepared to deal with this kind of question. And I believe she can learn, with practice, not to get boxed-in by questions that are frankly absurd. First, as I noted in my objection, the question is vague, ambiguous and unintelligible. The deponent should refuse to answer any question until she feels the meaning is crystal clear. I submit that “needlessly endanger” is far from crystal clear. If the examiner steadfastly refuses to break down or define what she means by “needlessly,” then the deponent should re-frame the question in her answer in a way that makes it reasonable. I’m no doctor–I don’t even play one on TV–but I believe the following answer beats “correct” any day:

“Q: Physicians are not allowed to needlessly endanger patients?

A: Correct. If you mean in prescribing treatment or medication, must a doctor consider and balance the risks and benefits of all treatment options available and known to him, I would agree with that. Otherwise, I don’t understand your question.”

Your witness must refuse to be drawn into empty over-generalizations. She needs to be prepared to endlessly reframe unfair questions, lest she will commit herself to enormous, sweeping “rules” or standards which have no real relevance or application to the concrete facts of the case. This actually holds true in any kind of deposition. The only difference with Reptile is that the questions will be cunningly tailored to prey upon jurors’ unconscious fears that doctors like your client are out there “needlessly endangering” patients like the juror and his/her family, and must be stopped. If your client did not “needlessly endanger” the plaintiff, but simply prescribed one among many accepted treatments, then the jury must–absolutely must–understand the balancing of risks and benefits that physicians undertake every time they prescribe a treatment. They can still conclude the doctor breached the applicable standard of care, but they should only do so based on an informed application of the appropriate standard to the specific facts.

†Let me say here that, while my practice does not include suing doctors for alleged malpractice, I do not have a built-in bias against plaintiffs or their lawyers.

Your Expert’s First Role In Any Case

ioLitigating any case is stressful business. But I had a real nail-biter some time back. It was a product liability case and my client was a small mom-and-pop outfit that supplied a component which had been materially altered, mis-installed, and ultimately caused a rather horrendous accident.

Legally, it should not have been a difficult case to defend. The problem I found myself having was grasping exactly how the alteration and mis-installation had ultimately impacted my client’s component. Any product liability lawyer will tell you this was crucial to the defense. The technical issues were pretty complex, at least for me (a philosophy major, not an electrical engineer), and no matter how hard I tried to understand, no matter how much I thought I’d finally “got it,” I would struggle anytime I tried to explain how the alteration and mis-installation had fouled up my client’s product.

In any other case, I would have relied on our technical liability experts to teach me all of the technical details I need to know. The problem here was that my client was defending the case on a shoestring budget. If we weren’t careful, this case would bankrupt his company. He insisted that he would serve as the primary expert, since he was an engineer who’d invented the component in the first place and nobody knew the technology better. The obvious issue with this was he has no cloak of independence. His testimony would be viewed by the jury as completely self-serving; his opinions suspect as such. The less obvious issue that I had with this plan was the fact that, while my client was undoubtedly a first-rate engineer, his teaching skills were less than stellar. If he couldn’t teach me, how could I expect him to educate the jury? Meanwhile, my opponent was retaining expensive, experienced testifying experts from Exponent, etc.

I typically wouldn’t hire anyone as an expert who couldn’t help me understand, since (1) my comprehension of the technical details is absolutely crucial to my ability to confront the plaintiff and her experts, both in discovery and at trial; and (2) our expert’s ability to educate someone of less-than-genius-level intelligence (i.e., me) is going to be needed in order to help the jury understand why my client can’t be liable. The importance of an expert’s ability to educate the trial lawyer, as well as the lawyer’s responsibility to conduct his/her own outside learning, is discussed by Professor McElhaney, in Litigation. He says:

“The first job for the [expert] witness is to explain everything to you [the trial lawyer]. You have to keep asking questions and demanding answers until you are satisfied. Do not just rely on the witness, either. Read as much additional literature as you have time for; it is not just background information. Learned treatises that support the witness are admissible under Rule 803(18) of the Federal Rules of Evidence.” (p.62)

Our case ultimately settled, and I breathed a deep sigh of relief, but not before spending several near-sleepless nights worrying how I was going to overcome the challenges of sufficiently understanding the technology to deal with both the plaintiff’s and defense liability experts. It was a learning experience in several ways. I learned to quickly recognize when I’m having difficulty grasping the complex technical concepts necessary to effectively defend (or build) a case. I learned that, regardless of budget constraints, it will not suffice to rely on testifying experts who, though knowledgeable in the subject matter, cannot effectively teach it to a complete novice. I learned that selection of experts is not a discussion to put off having with a client until the time for expert retention, but should be addressed at the outset, to ensure the client has an opportunity to think about how an appropriate, qualified expert can be identified and compensated, even with severe budget constraints.

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