Author Archives: T.C. Kelly

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

spray polyurethane foam

Court Excludes Expert Testimony Linking Insulation to Disease

Richard and Monica Beyer sued Anchor Insulation after Anchor insulated their home with spray polyurethane foam (SPF). The Beyers alleged that the SPF was a defective product. A federal judge in the District of Connecticut agreed to admit expert testimony that the SPF was defective and improperly installed, but did not allow the Beyers’ expert witness to testify that the SPF harmed the Beyers’ health.

SPF Installation

The SPF that was used in the Beyers’ home begins as two liquids stored in two separate drums. The liquids are pumped through separate hoses that are joined in a single nozzle. The liquids mix as they are sprayed from the nozzle, forming a foam that expands and hardens into an insulating material.

Anchor used liquids manufactured by two different companies. Both companies train installers to make sure the liquids are mixed in equal proportions, and both caution installers not to mix their products with products manufactured by a different company. Anchor allegedly ignored that caution by mixing products from the two manufacturers rather than buying both products from the same manufacturer.

According to warnings that come with the product, each liquid can cause respiratory problems while being sprayed. The resulting foam is relatively safe, but it can also cause respiratory problems if it is chipped or ground into dust and its particles are inhaled.

The Beyers submitted evidence that Anchor’s installers failed to follow recommended procedures by mixing liquids from two different manufacturers, by spraying the foam in thicker layers than the manufacturers recommend, and by spraying new layers before the earlier layers have a chance to cure. A visual inspection revealed that the foam shrunk as it hardened, pulling away from the surfaces onto which it had been sprayed. One of the manufacturers examined the foam and concluded that it had been contaminated by mixing products.

Eleven months after the SPF installation, Anchor agreed to remove it. Anchor did so by grinding the insulation into fine particles. The home filled with dust from the foam as a result of Anchor’s efforts.

Beyers’ Alleged Illness

The Beyers complained that they began to experience a variety of symptoms soon after the SPF installation, including prolonged headaches, fatigue, difficulty breathing, heart palpitations, memory loss, and boils. Some of those symptoms are consistent with literature that addresses exposure to the chemicals used to create the SPF.

Richard Beyer’s treating physician diagnosed a respiratory disorder after his exposure to the SPF. Anchor’s physician confirmed that Richard Beyer had a pre-existing condition of asthma that worsened after his exposure to SPF. Neither of those physicians opined that SPF exposure exacerbated Richard Beyer’s asthma.

Expert Testimony Regarding Physical Harm

Anchor challenged each of the Beyers’ three experts. Anchor contended that their testimony was inadmissible and that without the testimony, the Beyers could not establish that their product was defective or that the product caused their physical injuries or damage to their property.

The Beyers relied on Dr. Yuh-Chin Tony Huang to establish that the Beyers’ physical ailments were caused by SPF exposure. Dr. Huang is a professor of medicine who specializes in pulmonology. Dr. Huang opined the Beyers likely developed chemical sensitivities to the SPF based on the fact that they were exposed to it and that their symptoms are consistent with symptoms caused by SPF chemical compounds.

The court noted that the Beyers must prove both general causation (SPF is capable of causing their injuries) and specific causation (SPF actually did cause their injuries). Epidemiological studies are usually used to prove general causation. Dr. Huang based his opinion as to general causation on a peer-reviewed article that he co-authored regarding the health effects associated with the faulty application of SPF in residential homes.

Dr. Huang candidly admitted that his research established a likely association between SPF and respiratory ailments, but that an association does not prove causation. Dr. Huang’s article reported symptoms of thirteen individuals exposed to SPF compounds, but it did not compare those individuals to a control group. Dr. Huang described the article as an expanded case report rather than a study. The trial court found that Dr. Huang’s article raised questions about the link between SPF and respiratory diseases but, given the small population and the absence of a control group, the report could not establish general causation.

Nor did the court believe that the causation evidence was bolstered by warnings that the chemical manufacturers provided. Those warnings caution people who use the chemicals to wear respirators because the chemicals might cause respiratory problems, but an abundance of caution in issuing product warnings cannot be taken as proof that a product is dangerous.

The court determined that Dr. Huang could not establish specific causation because he wrote his report before examining the Beyers. While he relied on other physicians’ reports as the basis for his conclusions, he admitted that a physician cannot determine the cause of symptoms without assessing whether those symptoms are real, which requires talking to the patient.

In addition, Dr. Huang did not explain how or whether he ruled out alternative explanations for the symptoms, including Richard Beyer’s preexisting asthma. For all those reasons, the court excluded Dr. Huang’s testimony on causation “as insufficiently reliable for a jury’s consideration.”

Expert Testimony Regarding Property Damage

The Beyers relied on two chemists to testify that Anchor sold a defective product because its SPF was made from two liquids that should not have been mixed, and that it applied the SPF improperly. Anchor did not challenge their qualifications to testify, but contended that one of the experts relied on a nontestifying (consulting) expert for his opinions without exercising independent judgment.

The court was critical of the testifying expert for adopting part of the consulting expert’s report verbatim. The court nevertheless allowed the expert to testify to the extent that he independently verified information in the consulting expert’s report. Subject to those limitations, the expert was permitted to testify that Anchor’s product was defective and was installed incorrectly.

The court did not admit the expert’s opinions about remediation of the home, because the testifying expert testified that the consulting expert was more knowledgeable about remediation and that he adopted the consulting expert’s report for that reason. In addition, while the expert was permitted to testify that improper installation contributed to product failure, he was not permitted to testify that the installation was contrary to industry standards, since he had no expertise with regard to those standards.

The second chemical engineer was qualified to testify about the dangers that arise from exposure to the chemicals used to create the SPF. The court did not allow the engineer to testify that Anchor failed to give the Beyers appropriate warnings because whether the Beyers were warned was a question of historical fact that was beyond the expert’s knowledge. He was permitted, however, to testify about possible sources of chemicals in air samples that the other engineering expert found.

Court’s Decision

In the end, the exclusion of expert testimony about the health consequences of SPF precluded the Beyers from bringing a personal injury claim. Their expert evidence did allow them to bring a claim that improper SPF installation damaged their property. The Beyers were therefore allowed to bring the property damage claim, but not the personal injury claim, to trial.

Texas flag and gavel

Texas Court Concludes Expert is Qualified to Testify that Electrical Transformer Started a Fire

The Texas Court of Appeals was recently asked whether a witness who had no engineering degree could provide expert testimony about the cause of a fire started by an electrical transformer and about the public utility’s duty to maintain the transformer. The Court of Appeals reversed the trial court’s decision to exclude the testimony.

Facts of the Case

Property owners in Houston sued CenterPoint Energy Houston Electric, alleging that CenterPoint’s negligence was responsible for a fire that destroyed a house and a commercial building. The property owners claimed they suffered $2 million in property damage and lost profits as a result of the fire.

CenterPoint maintained a light pole with a transformer between the two structures. The Harris County Fire Marshal determined that a spark from the transformer probably ignited vegetation that started the buildings on fire. The Fire Marshal did not determine the cause of the suspected malfunction that produced the spark.

Texas courts have held that a public utility, like every other business, has a duty to use reasonable care to avoid harming the public. The standard of care that is required is commensurate with the danger posed. Sensibly enough, more dangerous situations require greater care. Texas courts have concluded that whether a utility breached its duty to exercise reasonable care must be established by expert testimony.

To prove that CenterPoint was responsible for the fire, the property owners offered the expert testimony of Michael McGraw. CenterPoint asked the trial court to exclude McGraw’s testimony on the ground that he was not qualified by education or experience to offer opinions about the workings of the transformer, the cause of a fire, or the standards that a utility company should follow to assure the safety of the public.

The trial court agreed with CenterPoint. It excluded McGraw’s opinions and then granted summary judgment in favor of CenterPoint because, without McGraw’s opinions, the property owners could not prove that CenterPoint’s negligence caused the fire. The property owners appealed.

Qualifications of Expert

Texas judges must determine whether an expert witness has actual expertise in the subject about which the expert proposes to testify. General experience in a specialized field does not qualify a witness as an expert. Rather, Texas courts require the expert to have specialized knowledge that is relevant to the subject of the testimony.

Specialized knowledge can come from education, from practical experience, or from a study of technical works. McGraw completed extensive coursework in electrical engineering, although his Bachelor degree is in business administration. During lengthy employment with General Electric and Powercon Corporation, he was responsible for the design, development, and testing of electrical distribution equipment. He also owned and operated his own company that specialized in manufacturing medium-voltage transformers.

McGraw has worked with transformers that are similar to the one owned by CenterPoint since 1978. He has worked exclusively with transformers since 1996. He testified that the same engineering principles apply to all similar transformers.

While McGraw does not have a degree or a license in electrical engineering, the appellate court decided that his extensive knowledge and experience qualifies him to testify as an expert. The court concluded that McGraw is capable of giving relevant testimony that would assist the jury in understanding how a transformer might malfunction.

Standard of Care Testimony

McGraw concluded that at least three safety components on the transformer failed and that those failures caused or contributed to the fire. His expert report opined that a utility exercising ordinary and reasonable care would maintain its equipment in good working order to avoid a failure of those components. He also opined that none of the components that failed were likely to fail if they were installed correctly, inspected, and repaired or replaced if they began to show wear. If the components had been maintained in good working order, McGraw said, it is unlikely that they would have failed.

CenterPoint argued that, notwithstanding those opinions, McGraw was not qualified to testify about the standard of care that applies to an electrical utility. The court rejected CenterPoint’s argument that only someone who has worked in the utility industry is qualified to address the standard of care that utility companies should follow.

The court was satisfied with McGraw’s statement that he relied on industry codes and published standards in forming his opinions. He was sufficiently familiar with the utility’s duty to maintain transformers in good working order to testify that CenterPoint breached that duty.

The Court of Appeals reversed the trial judge’s exclusion of McGraw’s expert testimony. Since summary judgment in CenterPoint’s favor rested on the absence of expert proof, the Court of Appeals reversed the summary judgment. The property owners are now free to present their case to a jury, using McGraw as an expert witness.

Little sad boy hugging mom

AAP Revises Standards for Pediatric Expert Testimony

Professional associations often create standards governing the conduct of their members, including guidelines for testifying as an expert. Sometimes the guidelines appear to be based on the concern that an expert might testify against other members of the same profession in a lawsuit that alleges professional malpractice. Guidelines should never discourage experts from giving honest testimony in order to shield other professionals from responsibility for their mistakes.

The American Academy of Pediatrics (AAP) recently revised its guidelines for expert witnesses. It is to the organization’s credit that it recognizes the need for pediatric experts to lend their knowledge, experience, and best judgment” to the judicial system, regardless of the side of the dispute for which they testify.

It is also to AAP’s credit that the organization recognizes that pediatric experts have given testimony in alleged “shaken baby” cases that may be responsible for sending innocent parents to prison. The revised guidelines specifically address that issue.

Ethical Guidelines for Expert Witnesses

One always hopes that expert witness guidelines are meant to encourage ethical behavior, not to discourage professionals from testifying against other professionals. Professional guidelines are sometimes motivated by unfair criticism of expert testimony, such as the following comment in an article written by a doctor:

But, there is an ethical conflict for the expert who is paid to testify; promoting the outcome of a legal case by testifying leads to increased visibility and marketability of the expert; potentially leading to more income.

One might just as easily say that there is an ethical conflict for doctors who are paid to practice medicine, because those who obtain a good outcome for their patients will be able to market themselves more effectively and earn extra income. The doctor’s comment might be taken as evidence that doctors should stick to practicing medicine, not to opining on the legal or ethical standards that apply to courtroom testimony.

Being paid does not create an ethical conflict. Slanting testimony in exchange for money is unethical (as is pretending to cure an incurable disease in exchange for money), but there is nothing unethical about giving honest testimony (or medical treatment) in exchange for a payment. That’s how capitalism works.

To his credit, the doctor who wrote that article recognized that “[a]rguably, ethical conflicts may also exist for professional associations who discipline their members” because the disciplinary bodies may want to “protect [their members] from lawsuits.” It may be more than “arguable” that some professional organizations are more focused on protecting their members than on promoting the ethical behavior of expert witnesses.

As long as an expert is competent to render an opinion and does so honestly and reasonably in light of all the facts, the expert is behaving ethically. And since the legal system depends on experts to hold members of a profession accountable for their mistakes — and to exonerate them when they made justifiable mistakes or none at all — no ethics code should ever be used to discourage an expert witness from giving honest and reliable testimony.

AAP Announces Revised Guidelines

The new guidelines announced by AAP recognize that “pediatricians have ethical and professional obligations to assist in the civil and criminal judicial processes” and that they serve the public interest by providing “scientifically sound and unbiased expert witness testimony.” The policy statement “bolsters the requirements for expert testimony and provides new guidance on ways to prevent irresponsible testimony in medical liability proceedings as well as in child abuse cases.”

Expert testimony in child abuse cases has been questioned because experts have often attributed injuries to “shaken-baby syndrome” that may have been caused by accidents that were unrelated to abuse. Recognizing that many of the experts who claimed to recognize “shaken-baby syndrome” had not researched other potential causes of the brain injuries they observed, the AAP policy statement suggests that pediatricians should not testify about child abuse unless they have been trained in that subspecialty.

The policy also requires retired pediatricians to keep current on medical literature if they testify as expert witnesses. That requirement is particularly important in child abuse cases since recent studies have concluded that “there is no solid scientific evidence that a specific pattern of head injuries is incontrovertible evidence on its own of child abuse.” Retired physicians who don’t keep up with the literature may be unaware of those studies.

Whether the AAP’s policy will be enforced remains to be seen. Many pediatricians continue to testify about shaken-baby syndrome and, while some UK experts have faced disciplinary proceedings for doing so, AAP does not have a significant record of policing pediatricians who give unreliable testimony that causes innocent people to be convicted of crimes.

Standards of Testimony

In most respects, the AAP’s standards for testifying should be uncontroversial. They provide reasonable, common-sense rules that experts should easily be able to follow, including:

  • Experts should give the same truthful testimony and objective analysis of the facts regardless of whether they testify for the prosecution/plaintiff or only for the defense.
  • Experts should base their conclusions on all available medical records and should call attention to any gaps in the medical documentation.
  • Experts should not ignore or disregard relevant evidence for any reason “and certainly not to create a perspective that favors” either party.
  • Experts should use their best judgment to form opinions based on their knowledge and experience and should not express opinions as to matters that are outside of their expertise.

Other common-sense standards suggest that experts should not exaggerate their credentials in advertising or in testimony, should not agree to work for a contingent fee, and should make sure that their insurance covers expert testimony.

Troublesome Standards

More problematic is the requirement that an expert contact his or her employer “to ascertain the organization’s policy” regarding expert testimony. An expert might want to do that to avoid being fired, but how an employer feels about expert testimony says nothing about the ethics of the witness.

Also problematic is the requirement that experts charge fees that are “reasonable and commensurate with the time and effort involved at the prevailing market value.” If an attorney agrees to pay a requested fee, that agreement establishes the market value of the expert’s services. The assumption is apparently that experts will slant their testimony if they are paid too much, but that is a cynical view. Like everyone else, experts charge what the market bears, and it should be rare for a fee to be deemed “unreasonable” simply because it is higher than other experts might charge.

Florida Supreme Court

Florida Supreme Court Rejects Daubert Rule

The Florida Supreme Court has rejected a legislative attempt to impose the Daubert standard of expert witness admissibility on Florida courts. As ExpertPages earlier reported, the Florida Bar’s Board of Governors asked the Florida Supreme Court to set aside a legislative attempt to force the state’s judiciary to use the Daubert standard when deciding whether to admit expert testimony.

The Board of Governors narrowly sided with lawyers who represent injury victims when it asked the Court to reject Daubert. They argued that Daubert benefits corporations and other powerful defendants by restricting the evidence that might be used to prove their wrongdoing. The business and insurance community, on the other hand, contended that Daubert provides a safeguard against the use of “junk science” to sway juries.

The Legislature v. The Court

Florida courts have historically followed the Frye standard to determine the admissibility of expert testimony. As applied in Florida, the Frye standard requires trial judges to exclude expert testimony that is based on a new or novel scientific methodology unless it is grounded in principles that have gained general acceptance in the relevant scientific community.

The Florida legislature passed a law that purported to require Florida courts to follow the Daubert standard of expert witness admissibility. That standard generally requires judges to determine the reliability of expert testimony and to exclude opinions that are not based on the reliable application of a reliable methodology to sufficient facts or data.

While it is the legislature’s responsibility to make law, the Florida Supreme Court considers it the judiciary’s responsibility to craft the procedural rules that govern court proceedings. Since rules of evidence are generally regarded as procedural rules rather than substantive laws, the Florida Supreme Court has the power to decide whether evidentiary rules enacted by the legislature will be followed by the courts, at least to the extent that they are procedural.

Florida Bar Recommendation

The Florida Bar’s Code and Rules of Evidence Committee recommended that the Florida Supreme Court decline to adopt the legislatively enacted Daubert standard. The Committee’s Majority Report noted that the legislature wanted to prohibit “pure opinion testimony” in Florida courts, while Florida courts have long endorsed the admissibility of “pure opinions” from qualified experts.

Florida precedent establishes that “pure opinion testimony,” such as a doctor’s diagnosis or a psychologist’s conclusion that a defendant is not competent to stand trial, does not need to satisfy the Frye standard. “Pure expert opinions” are those that are based on training and experience and that might assist the jury even if other experts might dispute them.

Florida precedent cautions trial courts to “resist the temptation to usurp the jury’s role in evaluating the credibility of experts.” Whether conclusions drawn by experts are credible is a question for juries, not judges, to resolve. The Committee argued that a litigant’s constitutional right to trial by jury would be diminished if judges were to decide in the first instance whether an expert’s conclusions are reliable.

The Committee also raised practical objections to Daubert, noting that the standard places an unreasonable burden on courts and litigants while prompting judges to make inconsistent decisions that are based on their own preferences rather than a consistent rule of law. In the end, however, it was the constitutional concern that carried the day in the Florida Supreme Court.

Florida Supreme Court Rejects Daubert

In a brief opinion, the Florida Supreme Court noted that it typically follows a policy of adopting procedural rules that the state legislature enacts. When the Court has doubts about the constitutionality of a procedural change, however, the Court may decline to adopt it.

The Court noted that the Committee raised “grave constitutional concerns” about the impact that the Daubert rule would have on the right to a jury trial and on access to the courts. For that reason, the Court declined to adopt the legislature’s changes to Florida’s rule regarding expert witness admissibility.

The argument that the Daubert standard is unworkable, that it leads to inconsistent results, and that it increases the cost of litigation might have played a behind-the-scenes role in swaying the Florida Supreme Court. Court decisions applying Daubert have been described as “nonuniform, inconsistent, and irreconcilable.”

Constitutional concerns, on the other hand, have not prevented the federal government and the majority of states from adopting the Daubert rule. The Florida Supreme Court made no attempt to address or resolve those concerns, but merely indicated that they were sufficiently grave to warrant its rejection of the Daubert rule “to the extent it is procedural.”

Whether some or all of the Daubert standard is substantive or procedural is a question that will probably need to be resolved in a future case. It is generally recognized, however, that rules governing the admissibility of evidence are procedural since they tell courts how to conduct trials without affecting the substantive rights of litigants. It is therefore likely that the Supreme Court’s decision spells the death of Daubert in Florida, at least for the near future.

Colorado State Flag

Colorado Supreme Court Rejects Expert Testimony Given by Lay Witnesses

Two recent decisions of the Colorado Supreme Court addressed whether a witness should be allowed to testify about issues that require specialized knowledge when the witness has not been qualified as an expert. The cases discuss the difference between a lay opinion, which people with no special training or experience can reliably provide, and an expert opinion, which requires greater knowledge than a lay person will ordinarily have.

Venalonzo v. People

Venalonzo was charged with inappropriately touching two children in the hallway of the apartment building where they lived. The children were interviewed by a child forensic interviewer.

Both children initially gave consistent accounts of the alleged assaults, but their accounts were inconsistent with each other. Their stories varied as to what the man said to them, what he was wearing, how and from where he entered the building, and whether the children were in each other’s presence when the man touched them. Over time, one of the children changed her description of the man’s actions, including whether she was touched over or under her clothing.

Before trial, the prosecutor advised the defense that it would not be calling any expert witnesses. It therefore produced no expert reports and the court did not decide whether the interviewer was qualified to give reliable expert testimony.

At trial, the forensic interviewer testified about the techniques she uses to interview children. The defense objected that the interviewer was posturing herself as an expert in eliciting truthful accounts from children.

The court ruled that the interviewer would be allowed to testify as a lay witness. The court would not allow the witness to say whether she thought the children were telling the truth, but did allow her to testify whether the behavior she observed during the interview was common or uncommon as compared to other child victims of sexual abuse.

The defense objected to several other questions, including: whether children commonly tell other children about abuse before telling adults; whether children typically tell different stories to forensic interviewers than they tell to social workers or while testifying at trial; whether the details that differed in the children’s accounts were core or peripheral; and how children who have actually been sexually assaulted will “reproduce” the assault by demonstrating the touches on their own bodies.

The court permitted the interviewer to answer all those questions, although it did not allow her to explain why interviewers look for “reproduction,” because it felt that question called for expert testimony. Venalonzo was convicted.

The Venalonzo Ruling

On appeal, the Colorado Supreme Court decided that the forensic interviewer was testifying as an expert, not as a lay witness, at least in some respects. The court ruled that lay testimony is based on ordinary knowledge or experience. On the other hand, a witness who offers testimony that could not be offered without specialized knowledge, training, or experience is giving expert testimony.

As in this case, a forensic interviewer is often called upon to explain to juries why a sexually abused child might give inconsistent stories, might delay reporting the abuse, or might recant the allegation. Prosecutors elicit that testimony because they fear that juries might otherwise find it counterintuitive to believe that a child sexual assault victim would engage in those behaviors.

However, it is precisely because juries do not have that information that a witness who educates them is testifying as an expert. The Colorado Supreme Court ruled that forensic investigators are testifying as experts when they give jurors information that ordinary people do not usually have about the behavior of child sexual assault victims. Whether it is helpful for a jury to hear lay testimony about facts that it already knows is a separate question.

The court decided that the forensic interviewer did not testify as an expert when she described her training and experience. The court did not decide whether evidence about the interviewer’s training was relevant, given the prosecution’s contention that the interviewer was not testifying as an expert.

The court also decided that some of the forensic interviewer’s testimony about child behavior was common knowledge. According to the court, her testimony that children generalize, are not good with measurements, and tell secrets to other children before telling them to adults are all within the common knowledge of a lay person. Whether it is helpful for a jury to hear lay testimony about facts that it already knows is a separate question.

On the other hand, the court decided that the forensic interviewer gave expert testimony when she testified about the significance of using gestures to “reproduce” an assault. She was also testifying as an expert when she claimed that children are more likely to be accurate when describing core details than peripheral details.

Because the trial court allowed the forensic interviewer to give expert testimony without determining whether she was qualified to do so, the Supreme Court decided that the trial court erred.

On a related issue, the Court held that the interviewer should not have been allowed to bolster the credibility of the child witnesses by comparing their behavior to that of other child sexual abuse victims. Since any or all of the inadmissible testimony may have influenced the jury, the court decided that Venalonzo was entitled to a new trial.

The Ramos Ruling

The issue in People v. Ramos was “whether an ordinary person would be able to differentiate reliably between blood cast-off (i.e., blood droplets from waving a hand around) and blood transfer (i.e., blood transferred by physical contact).”

Ramos was accused of assaulting a backseat passenger in a car that his girlfriend was driving. The passenger claimed that Ramos, who was sitting in the front, reached into the back seat and punched her.

Ramos’ hand was bleeding from an unrelated injury. His blood was found on the passenger’s jacket and cap. Ramos denied hitting the passenger and contended that his blood was flying through the car when he waved his hand.

A police detective, testifying as a lay witness, opined that blood on the cap and jacket must have been transferred when Ramos touched those objects and could not have been “cast-off” blood that was splattered when he waved his hand around.

Applying the Venalonzo rule, the Colorado Supreme Court decided that an ordinary person would not be able to determine whether blood on an object was directly transferred to the object by touching it or was cast-off blood. Whether or not the police officer was qualified to give expert testimony about blood transfers based on nineteen years of experience investigating crimes, his testimony was of a technical nature that goes beyond lay knowledge.

The Colorado rule may help solve the problem of police officers giving slanted testimony that favors the prosecution when they have no basis for that testimony beyond their self-proclaimed “training and experience.” Since testimony that depends on training and experience will generally be expert testimony, police officers in Colorado will need to satisfy the state’s standard for expert opinion admissibility before they are allowed to provide those opinions.

Oregon State

Oregon Court of Appeals Decides Expert Testimony Was Wrongly Excluded in Medical Malpractice Trial

A frequently asserted claim in birth injury cases is that medical malpractice is responsible when shoulder dystocia occurs during birth. In normal deliveries, the baby’s shoulders follow soon after the head is delivered. In some cases of obstructed labor, the head delivers but the baby’s shoulder becomes stuck behind the pubic bone.

When shoulder dystocia occurs, the doctor must manipulate the baby in order to complete the delivery. If the manipulation is not undertaken with care, a bundle of nerves running through the neck, shoulder, and arm can be damaged, leading to impaired function of the baby’s arm and hand. Sometimes the impairment resolves over time, but in some cases the injury is permanent.

Proving medical negligence nearly always requires expert testimony. In a recent Oregon decision, the Oregon Court of Appeals concluded that an expert was improperly prevented from testifying that shoulder dystocia was caused by a physician’s malpractice. The case hinged on whether the expert was asked to testify about a theory of negligence that was not alleged in the complaint.

Facts of the Case

Lydia Bergstrom sued the clinic where her son, Garin, was delivered. Garin was macrosomic (unusually large) at the time of birth and his size led to complications during his delivery, including shoulder dystocia. Lydia contended that the shoulder dystocia caused Garin to sustain a brachial plexus injury during birth and to suffer from Erb’s palsy in his right arm.

Lydia alleged that her obstetrician should have known that she was carrying a macrosomic baby. She also alleged that they were negligent for failing to prepare for and perform a caesarean section rather than taking the risk that shoulder dystocia would occur during a normal delivery.

Lydia further alleged that her obstetrician negligently used a vacuum extractor to assist delivery, which contributed to the shoulder dystocia. Finally, she contended that she should have been notified that she was carrying a macrosomic baby and that her baby was at significant risk of developing shoulder dystocia if she had a normal delivery.

The jury returned a verdict in favor of the clinic. On appeal, Bergstrom argued that the trial court erred by excluding her expert testimony.

Expert Testimony

Medical experts on both sides of the case testified about the importance of using an ultrasound, among other tools, to estimate the birth weight of a baby before delivery. An estimate of birth weight is important to help doctors understand whether a mother is carrying a macrosomic baby.

The obstetrician who provided prenatal care and delivered the baby did perform ultrasounds. Lydia’s expert, Dr. Rice, would have testified that the obstetrician failed to obtain clear ultrasound images that were needed to accurately measure head circumference and to make other estimates of size. Dr. Rice also proposed to testify that the obstetrician did not properly measure the images he had.

According to Dr. Rice, the obstetrician mistakenly concluded that Garin was in the sixty-fourth percentile at the time of the ultrasound, or slightly larger than average. Dr. Rice concluded that a proper measurement would have compelled the conclusion that Garin was in the ninety-third percentile and was therefore macrosomic. Dr. Rice would have testified that the obstetrician’s mismeasurements fell below the acceptable standard of care that reasonable obstetricians would provide.

The trial judge concluded that Dr. Rice’s proposed testimony went beyond the facts that were alleged in the complaint. While the complaint alleged that the clinic was negligent in performing a vaginal delivery when it should have known that Garin was at risk of being macrosomic, the court concluded that the allegation of negligence did not give the clinic notice that the negligent performance or interpretation of ultrasounds would be an issue in the case. The court therefore excluded Dr. Rice’s testimony on the ground that it was irrelevant to the facts alleged in the complaint.

Appellate Ruling

The Oregon Court of Appeals disagreed that Dr. Rice’s testimony was not relevant to the theory of negligence alleged in the complaint. One issue raised in the complaint was whether the clinic was negligent in performing a vaginal delivery when it “knew or should have known” of the significant risk that the baby was macrosomic.

Dr. Rice’s testimony about the negligent performance and interpretation of the ultrasounds was relevant because it would have supported the allegation that the clinic “should have known” of the risk of a macrosomic baby. The appellate court decided that the allegations in the complaint were sufficiently broad to encompass Dr. Rice’s testimony about ultrasounds, even though the complaint did not specifically mention ultrasounds.

The appellate court also determined that the exclusion of Dr. Rice’s expert testimony was prejudicial. The clinic conceded at trial that ultrasounds are important in estimating fetal weight and predicting whether a baby would be macrosomic. In the absence of Dr. Rice’s testimony, Lydia was unable to prove that the obstetrician failed to provide an appropriate standard of care in performing and interpreting the prenatal ultrasounds.

Since Dr. Rice’s expert testimony, if admitted, could have changed the verdict, the court ruled that the exclusion of that testimony substantially affected Lydia’s right to a fair trial. Accordingly, the court of appeals reversed the judgment and ordered a new trial.

US Georgia State Law Legal System Concept

Joey Watkins Seeks New Trial Based on Juror’s Investigation of Expert Evidence

Undisclosed is a podcast that investigates wrongful convictions. Its second season focused on Joey Watkins, who was convicted of felony murder in Georgia and sentenced to life in prison. Watkins’ conviction has also been investigated by the Georgia Innocence Project, which is seeking a new trial on Watkins’ behalf.

The petition for a new trial is based in part on a juror’s admission that she conducted her own investigation based on the testimony she heard from two expert witnesses. She voted to convict Watkins after deciding it was possible for Watkins to have been at the crime scene, contrary to the testimony of a defense expert.

Facts of the Case

Isaac Dawkins was shot in the head as he was driving home from Floyd college in January 2000. Watkins contended that he was nowhere near the site of the murder and had nothing to do with Dawkins’ death. His lawyers blamed his conviction on the emotional trial and on the depiction of Watkins as a “troublesome bad boy.”

Prosecutors claimed that Watkins resented Dawkins because Dawkins briefly dated Watkins’ girlfriend during one of several “breaks” in their relationship. By the time of the murder, however, that relationship had ended and both Watkins and his former girlfriend were dating other people.

Dawkins’ best friend told the police that Watkins was Dawkins’ only enemy. Undisclosed assembled a “people map” of ten teens and their shifting alliances, many of whom testified as prosecution witnesses. The podcast suggests that some of the teens enjoyed the drama of being in the spotlight, but their hearsay accounts of conflicts between Watkins and Dawkins seem more the stuff of legend than reality.

For example, while several of the teens claim that Watkins shot at Dawkins on an earlier occasion, none of them actually saw Watkins and the police who were summoned to the scene found no evidence that the locked house from which the shot was allegedly fired had been occupied. The story nevertheless proved to be a popular rumor as it was told and retold in the months that followed.

In reality, Watkins was in a different state at the time of the alleged shooting. The police found no evidence that a shot was fired, but even if it was, Watkins could not have been the shooter.

The unfounded rumor not only persisted, it convinced the police that Watkins was the most likely suspect in Dawkins’ later shooting. Prosecutors claimed that Watkins conspired with Mark Free, who either drove the car from which the shot was fired or actually fired the shot. Free was charged in a separate case and a jury found him not guilty. Unfortunately, related verdicts that are logically inconsistent are not a basis for reopening a guilty verdict in Georgia.

Cellphone Evidence

Watkins spent the afternoon of the murder fishing in Alabama with his uncle. He called and texted his girlfriend several times during the day and, after he got home, made some additional calls to arrange another fishing trip. Watkins says he was driving to his girlfriend’s home that evening when he passed a crashed truck that he recognized as belonging to Dawkins. Two hours later, after visiting his girlfriend, he passed the truck again on his way home.

Dawkins’ truck crashed at 7:18 p.m., but it took the police an hour to notice that Dawkins had been shot in the head. Watkins maintains he left his home at 7:15 p.m. and could not have been in the vicinity of the crash at that time.

Watkins’ cellphone records show that he made a 4-minute call that began at 7:15 p.m. The prosecution relied on an expert witness from Verizon who testified that the call was transmitted through a tower in Kingston.

According to the prosecution, the call could place Watkins near the murder scene if the cell phone was “at an adequate elevation and on the border of the Kingston coverage area.” The defense countered with an expert from Georgia Tech who testified that call could not have been made at a location just minutes away from the shooting scene because there were “just too many hills in the way.”

Juror Misconduct

Jurors are supposed to base verdicts on the evidence they hear in court and nothing else. The judge in Watkins’ case admonished the jurors “not to go measuring distances or stopping by the scene or investigating on your own.” Unfortunately, one of the jurors did just that.

During a weekend break in deliberations, when the jury was 10-2 in favor of conviction, one of the jurors drove to the scene of the shooting from the closest point where she believed the cellphone could have connected to the tower. She timed the drive and concluded that Watkins could have made it to the murder scene after he initiated his call and before the shot was fired. She then changed her vote to “guilty.”

Watkins is basing his request for a new trial on that juror’s misconduct. Watkins’ lawyers also contend that evidence undermining the prosecution’s proof of guilt was withheld from the defense during Watkins’ trial. Among other withheld evidence, the prosecution failed to disclose that the police did their own drive test, the results of which were presumably unhelpful to the prosecution’s case.

Gavel and Stethoscope on Reflective Table

Wisconsin Supreme Court Rejects Challenge to Expert Testimony in Medical Malpractice Case

A judgment of $885,000 in favor of a child who sustained a permanent injury during delivery was affirmed over a challenge to the expert testimony upon which the verdict was based. The Wisconsin Supreme Court rejected a claim that the opinion of a medical expert regarding the appropriate standard of care cannot be based on the expert’s personal experience.

Facts of the Case

Dr. Kim Balick provided prenatal care to Braylon Siefert’s mother and then delivered Braylon. During the delivery, Braylon’s shoulder became stuck, a condition known as shoulder dystocia. Dr. Balick eventually delivered Braylon, but Braylon sustained a brachial plexus nerve injury during the delivery. The injury will limit the growth and function of Braylon’s left arm, even after ameliorative surgery.

Braylon’s mother weighed 269 pounds before her pregnancy and gained another 36 pounds during her pregnancy. Dr. Balick estimated that Braylon would have a birth weight of 8 pounds, 8 ounces. Dr. Balick did not perform an ultrasound to confirm that estimate. Braylon’s actual birth weight was 9 pounds, 12 ounces.

Dr. Balick used a one-hour glucose screening test to determine whether Braylon’s mother had gestational diabetes. The test result was 131 mg/dL. Medical literature suggests that a three-hour glucose screening test should be administered when the results of the one-hour test are 140 mg/dL, although the same literature suggests that the second test might be appropriate when the one-hour test result is 130 mg/dL. Dr. Balick did not administer the three-hour test.

At some point during the delivery, Dr. Balick decided to use a vacuum device. The device is essentially a suction cup that attaches to the baby’s head. Dr. Balick succeeded in delivering the baby’s head, but it quickly retracted. That complication alerted Dr. Balick to the occurrence of shoulder dystocia.

Dr. Balick used a series of obstetric maneuvers to resolve the shoulder dystocia. Braylon was delivered about three minutes later.

The jury was asked whether Dr. Balick provided the standard of care that reasonable family practice physicians who practice obstetrics would provide under the same circumstances. Wisconsin law required Braylon’s attorneys to present expert evidence to establish the particulars of that standard of care and to explain how Dr. Balick failed to meet that standard.

Expert Testimony

Braylon’s lawyers relied on the expert testimony of Dr. Jeffrey Wener to meet that burden. The defendants did not challenge Dr. Wener’s qualifications to testify as an expert.

Dr. Wener testified that a reasonable family practice doctor who delivers babies should have recognized several risk factors in Braylon’s delivery, including the mother’s obesity, gestational diabetes, and a macrosomic (significantly larger than average) baby. He also testified that excessive traction during a delivery can cause a brachial plexus injury and that using a vacuum device to assist delivery increases that risk. None of that testimony was disputed.

Rather, the dispute concerned Dr. Wener’s testimony about the standard of care and Dr. Balick’s failure to follow it. Dr. Wener testified that the mother’s weight before pregnancy, her weight gain during pregnancy, the risk of gestational diabetes in light of the mother’s obesity, and the likelihood that the mother was carrying a macrosomic baby should have alerted Dr. Balick to the enhanced risk of shoulder dystocia.

Dr. Wener opined that Dr. Balick should have administered a three-hour glucose test to obtain a reliable indication of gestational diabetes, given the result of the less reliable one-hour test and the mother’s obesity. He also testified that Dr. Balick breached the standard of care by failing to perform an ultrasound to make a more accurate assessment of the baby’s weight, by using excessive traction during delivery, and (given the elevated risk of shoulder dystocia) by using vacuum assistance during delivery.

Challenge to Admissibility

For years, the Wisconsin Supreme Court firmly resisted adopting the Daubert rule of expert opinion admissibility. In 2011, the state legislature amended the rules of evidence by adopting the Daubert standard. The Wisconsin rule now tracks the language of the federal rule.

As the Court explained, the Daubert rule requires expert opinions to be based on sufficient facts, to be the product of reliable methods, and to be based on the reliable application of those methods to the facts. The defense challenged the admissibility of Dr. Wener’s testimony on the ground that he based his opinions on his personal experience as an obstetrician rather than published studies. The defense complained that Dr. Wener’s methodology was unreliable.

Supreme Court’s Ruling

The trial judge and the Wisconsin Court of Appeals both rejected the Daubert challenge to Dr. Wener’s testimony. The Wisconsin Supreme Court, reviewing those rulings, agreed that the testimony was admissible.

Emphasizing that Daubert makes the court “a gatekeeper, not a fact finder” and that the reliability determination focuses on the expert’s methodology rather than the expert’s conclusions, the Court took care to preserve the jury’s role in deciding whether the expert’s conclusions should be believed. The Court also noted that a gatekeeper is not an armed guard.

The Court rejected the argument that experience-based testimony is always the product of an unreliable methodology. Expert medical opinions may be based on experience if the expert’s relevant experience is sufficiently extensive. Medicine is a learned profession rather than a science, and unlike expert opinions offered by engineers or chemists, a doctor’s opinion about standards of care is often grounded in judgments based on personal experience rather than studies that establish statistical proof.

Medical knowledge is often less certain than scientific knowledge, but the court reasoned that the absence of perfect knowledge does not make the opinion of a medical expert inadmissible if the opinion has a reliable basis in the knowledge and experience of the medical profession. The basis for an expert medical opinion need not be subjected to peer review when the doctor’s own experience is sufficient to establish its reliability.

Nor do doctors need to cite specific studies or medical literature to support opinions that are grounded in their own professional experience. Literature may be helpful in some cases, but it will rarely address the specific facts that are unique to each patient.

The Court emphasized that Daubert is meant to exclude “junk science” from evidence. The Court noted that an expert medical opinion, when grounded in the expert’s extensive professional experience, will rarely be the kind of “junk science” that should be kept from the jury.

Having established the appropriate rule, the Court asked whether the trial court understood and applied the rule correctly. The Court concluded that the trial court reasonably determined that Dr. Wener’s expert opinion was relevant and was grounded in extensive relevant experience. Dr. Wener’s opinion about the appropriate standard of care was not, as the defense argued, merely a personal preference, but was based on medical knowledge that every family practice doctor who provides obstetric care should have. His expert opinion was therefore reliable and admissible.

Jimmy “Superfly” Snuka

Expert Witness Convinces Court that “Superfly” is Incompetent to Stand Trial

Jimmy “Superfly” Snuka, a retired professional wrestler, will not face a trial for causing the death of his mistress in 1983. Accepting expert testimony offered by the defense, the court agreed that the 73-year-old Snuka is not competent to stand trial. The court therefore dismissed the charges.

Allegations of Murder

A native of Fiji, Snuka lived with his family in the Marshall Islands before moving to Hawaii. He became a bodybuilder, earning the titles of Mr. Hawaii, Mr. Waikiki, and Mr. North Shore before turning his attention to professional wrestling. Snuka had a successful career in the World Wrestling Federation until 1992, and continued to make guest appearances at special events until his 2015 arrest.

On May 11, 1983, Snuka was taping a WWF event at the Allentown Fairground in Lehigh Valley, Pennsylvania. Snuka went to his hotel room in Whitehall, where Nancy Argentino was staying. Argentino and Snuka occasionally spent the night together when Snuka was not home with his wife.

Snuka told the police that he entered the room and found Argentino gasping for air. He called the front desk and hotel employees called an ambulance. Paramedics took Argentino to the Lehigh Valley Hospital, where attempts to save her life were unsuccessful.

An autopsy, which the district attorney’s office refused to release for the next three decades, concluded that Argentino suffered from head injuries. A forensic pathologist also found two dozen cuts and bruises on the body. The pathologist concluded that the death was suspicious and recommended that it be investigated as a potential homicide.

The police identified Snuka as a “person of interest” but he was never charged with Argentino’s murder. The case remained open and under investigation for the next 32 years.

Charges Filed

In 2013, reporters for The Morning Call investigated Argentino’s death. Their report of the details of the case apparently motivated the Lehigh Valley District Attorney to take “a fresh look” at the evidence.

The strongest evidence against Snuka, apart from his connection to Argentino, consists of admissions he allegedly made to various people that he shoved Argentino, causing her to hit her head. Snuka later said that his statements were misunderstood and that Argentino slipped and hit her head after stopping to go to the bathroom at the side of the highway. What Snuka told the police cannot be verified because a tape recording of Snuka’s police interview has “gone missing” from the police evidence locker.

The district attorney acknowledged that no new evidence had surfaced and that the case against Snuka “hadn’t improved with age.” The medical examiner also told the press that “clear-cut forensics weren’t there” and admitted that the forensic evidence did not establish “a clear-cut case” of murder.

The district attorney nevertheless asked a grand jury to indict Snuka. The medical examiner told the grand jury that Argentino’s brain injury probably occurred 12 to 24 hours before her death. He testified that the injury was consistent with her moving head striking a stationary object, but not consistent with a fall. Of course, the science of brain injuries has advanced considerably since the medical examiner formed that opinion.

Grand juries nearly always follow a prosecutor’s lead. Predictably, the grand jury charged Snuka with third-degree murder and involuntary manslaughter. The grand jury alleged that Snuka repeatedly assaulted Argentino “and then allowed her to lie in bed … without receiving the necessary medical attention.”

The defense contends that other evidence casts substantial doubt on the prosecution’s case. A gag order, however, prevents either party from discussing the evidence outside of court.

Competency Challenged

The Constitution forbids bringing criminal defendants to trial unless they are mentally capable of understanding the charges and assisting in their defense. Challenges to a defendant’s competency to stand trial are usually supported by psychologists, psychiatrists, neuroscientists, and other experts who evaluate a defendant’s ability to understand legal proceedings.

Snuka’s attorney contended that Snuka suffers from dementia and is not competent to stand trial. He theorized that substance abuse and head injuries sustained during his wrestling career accounted for the dementia. The presiding judge held four hearings to consider evidence in support of that allegation.

Testifying for the prosecution, forensic psychiatrist John O’Brien told the judge that Snuka changes his behavior according to the situation. He testified that Snuka “doesn’t behave in a manner that suggests oblivion.”

That testimony was contradicted by forensic psychologist Frank Dattilio. Testifying for the defense, Dattilio said that Snuka is a “shell of a man” who does not even know why he is in court. Dattilio testified that Snuka’s brain is shrinking.

Court’s Ruling

The judge questioned Snuka before ruling. She rejected the prosecution’s contention that Snuka was faking dementia, commenting that she didn’t think Snuka was smart enough to give a convincing performance. She observed that Snuka could not effectively testify in his own defense because an attorney “could get him to say or agree with anything on the witness stand.”

She also noted that delaying the prosecution for 30 years contributed to the difficulty of giving Snuka a fair trial in light of the mental impairment that he has suffered. That might have been a subtle way of suggesting that reviving a criminal investigation after three decades because of a newspaper story does not serve the ends of justice.

After the judge ruled that Snuka was not competent to stand trial, she rejected the prosecution’s request to order Snuka into involuntary treatment. Forced treatment can be an option when a mental impairment can be cured by medication, but dementia typically does not respond to treatment.

The judge instead told the parties to come back to court in six months. The judge received an update of Snuka’s condition in December. Learning that his health had deteriorated and that he is now receiving hospice care, the judge concluded that Snuka will not regain competency to stand trial. She therefore dismissed the charges.

Paparazzo Photography [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

A judge

Should Judges Appoint Their Own Expert Witnesses?

The American system of justice is designed to be adversarial. Two sides do battle and a judge or jury decides which side has the better case. To prove their cases, parties often rely on expert witnesses.

The system works reasonably well, but arguments are occasionally made that justice would be better served by relying on “neutral” or “independent” experts who, having been appointed by the judge, would not feel the need to slant testimony in favor of whichever party hired them. Whether that proposal would actually lead to better results is open to question.

Appointed Experts

The Federal Rules of Evidence allow a judge to appoint an expert, with or without the consent of the parties, in both criminal and civil cases. The rule’s explanatory comment states that the rule is meant as a counterweight to the practice of “shopping for experts.”

Of course, the adversarial system anticipates that parties will present evidence that helps them prove or disprove a claim. Finding experts who have something useful to contribute to the jury’s decision should not derogated by the phrase “shopping for experts.”

Judges rarely appoint their own experts because they don’t want to interfere with the fundamental nature of an adversarial system of justice. Judges are understandably reluctant to impose an expert witness on lawyers when the lawyers believe they have chosen experts are better suited to provide expert opinions to the jury.

Judges who have faith in the adversarial system tend to understand that experts frequently disagree, not because they are being paid, but because science is often inexact. Disagreement among experts is nearly inevitable when the subject matter of their testimony is complex, and who is to say that a court-appointed expert is more likely to be correct than one hired by the parties?

A study by the Federal Judicial Center found that federal judges rarely appoint their own expert witnesses. Judges expect the adversarial system to work and they don’t want to influence the outcome of a case by appointing an expert who may benefit one side more than the other. Judges are also concerned about forcing parties to pay for an expert they don’t want or can’t afford.

Complex Issues

Judges may be more inclined to appoint an expert to assist the court when the case will not be resolved by a jury and when issues are complex. In child custody disputes, for example, the court might appoint a psychologist to determine whether one parent would be a better custodian than the other.

Judges who are asked to resolve disputes that involve complex scientific or technical issues might also appoint an expert. Engineering experts are appointed to help courts in cases involving patents and trade secrets, while accounting experts may help judges determine damages in commercial cases. Less often, judges appoint experts in medical malpractice, product liability, and toxic tort cases. Since those cases are usually resolved by juries, however, judges are reluctant to interfere with the trial by insisting on a judicially-appointed expert.

Judge Richard Posner, one of the brightest and most controversial judges on the federal Court of Appeals, has long advocated the appointment of “neutral” experts to educate juries about technological or commercial issues that jurors (and judges) are unlikely to understand. While other commentators — including some experts and judges — have jumped on that bandwagon, the bandwagon is moving slowly and may never reach its intended destination.

Controversial Suggestions

Advocates of court-appointed experts tend to distrust the adversarial system. Sometimes that distrust is rooted in trial outcomes (such as verdicts against big businesses or insurance companies) that are unfavorable to the advocates. Others see those outcomes as proof that the system works just fine.

Distrust of expert testimony has been strongest in cases involving drugs that are alleged to cause health problems and toxic substances that are alleged to harm people who live in a particular area. Businesses and insurance companies, unhappy with the verdicts that juries returned against them, insisted that those allegations were supported by “dubious causation theories,” a concern that gave birth to the Daubert standard. Only experts who have formed opinions using a reliable methodology may testify under Daubert.

Whether judges are capable of evaluating the reliability of a scientific methodology is an open question. Judges are not scientists. As Justice Breyer noted in a concurring opinion, some scientists have suggested that judges should appoint their own experts to help them evaluate the reliability of a party’s retained expert. Yet how is a judge to know that an appointed expert is less biased or more capable than a retained expert?

Perils of Neutrality

When an expert serves the court rather than a party, the expert is said to be neutral. But no expert should be an advocate for anything but the truth. The same is true of judges. If there is a risk that an expert will habitually favor one side in a dispute, that risk may exist whether the expert is retained by a party or judicially appointed. After all, judges are often seen as being “liberal” or “conservative,” and their biases may incline them to appoint experts who share the same biases.

If judges feel the need to appoint experts, they might want to select the experts from a list that has been assembled by the relevant scientific community. That suggestion might overcome the fear that judicial bias would lead to the appointment of a biased expert. But if the group that assembles the list has a bias, a judicially-selected expert may be just as partisan as a retained expert.

When judges do appoint experts, should the jury know that the expert was selected by the court, not the parties? The risk is that juries may place undue reliance on an appointed expert in the belief that “the judge’s expert” must be more reliable than the retained experts. Even if jurors are not told that an expert was court-appointed, the fact that an expert isn’t working for either party is often easy for juries to discern.

Cross-Examining an Appointed Expert

An appointed expert should be subject to cross-examination just like any other expert, but some lawyers fear that a “tough” cross-examination of an appointed expert might incur the wrath of the appointing judge. Fear that upsetting the “judge’s expert” will upset the judge might lead to a timid cross-examination, but the adversarial system requires lawyers to be vigorous as they probe experts to expose the strengths and weaknesses of their opinions.

Since a jury might attach more weight to the opinions of the “court’s expert,” lawyers who cross-examine the expert should look for common ground in the analysis of the appointed expert and that of the party’s retained expert. The best strategy might be to emphasize points of agreement while suggesting that disagreements between the experts are minor. And since expert opinions depend on the facts, the appointed expert might be willing to concede that his or her opinion could change depending on which party’s version of the facts the jury accepts as true.

In the end, skilled advocates in an adversarial system can only do their best to help juries find the truth. Sometimes the system works and sometimes it doesn’t, but it is far from clear that the routine appointment of expert witnesses by courts would improve the accuracy of jury verdicts.