Portal de Periódicos da CAPES

Show me the money: A brief history of the expert witness for hire

2000; Elsevier BV; Volume: 118; Issue: 6 Linguagem: Inglês

10.1067/mod.2000.110890

1097-6752

Laurance Jerrold,

Legal Education and Practice Innovations

In a medical malpractice case asserting negligence, the burden of proof is on the plaintiff. In most cases, the jury lacks the professional knowledge to determine whether the standard of care has been breached; therefore, the plaintiff is required to prove the case by presenting an expert witness to testify as to what the standard of care is, whether it was breached, what damages or injuries resulted, and whether the breach actually or proximately caused the injuries claimed. Likewise, the defendant doctor, in order to refute the opinion of plaintiff’s expert witness, puts forth another expert witness who presents contrasting opinions vis-à-vis the standard of care and whether it was breached, an interpretation of the injuries, as well as an opinion as to the causal relationship of any breach. This, of course, leads to the classic “battle of the experts.” Hall v Hilbun, 466 So2d 856 (1985), is a wonderfully written case and covers virtually the entire spectrum of issues relating to medical malpractice cases. In the section dealing with the qualifications of an expert witness, the Supreme Court of Mississippi stated: As a general rule, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education…coupled with independence and a lack of bias, may testify thereto in the form of an opinion or otherwise. From this point of unanimity, many states vary in the requirements expert witnesses must meet to be qualified by the judge as an expert. The court summed this up by stating: [T]he trial judge is…called upon to exercise his sound discretion in determining whether a proffered witness is in fact qualified as an expert…[and is] admonished to ascertain that the witness really is an expert in the particular field at issue. Not every M.D. is a qualified expert in every malpractice case. Liberal cross examination regarding bias, interest and previous experience as an expert…should be allowed both on voir dire and when the witnesses testimony is being presented to the jury. The court also noted that the purpose of qualifying experts is to protect the litigants and the jury from the verbiage of the “circuit riding charlatan, the man from out of town with a briefcase.” This is not just a modern day problem. Our Supreme Court first addressed this issue in 1858, noting that “opposite opinions of persons professing to be experts, may be obtained [for] any amount.” (cit. omit.) In a legal text on evidence published in 1864, John Taylor wrote: Perhaps the testimony which least deserves credit…is that of skilled witnesses. These gentlemen are usually required to speak, not to facts, but to opinions; and when this is the case, it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond with the wishes or the interests of the parties who call them. (cit. omit.) In 1893, Professor Charles Himes stated that “expert witnesses are selected on account of their ability to express a favorable opinion, which, there is great reason to believe, is in many instances the result alone of employment and the bias growing out of it.” (cit. omit.) Around the turn of the century, Judge William Foster stated that “[t]his bias or inclination in favor of the party by whom the witness is employed, is probably the most frequent complaint of all against expert witnesses.”(cit. omit.) In a 1977 Law Review article, Michael Graham noted: The professional expert witness advocating the position of one side or the other has become a fact of life in the litigation process. Practicing lawyers can quickly and easily locate an expert witness to advocate nearly anything they desire. In each part of the country, if you need an expert…to state that the plaintiff suffered a whiplash injury, call expert X; if you need a medical expert to dispute that fact, call expert Y. The use of the expert witness has become so prevalent that certain expert witnesses now derive a significant portion of their total income from litigated matters. (cit. omit.) Looking at it from the perspective of the parties involved, Professor Graham went on to say: The criticism generated by the adversarial system is not one sided. Some experts have contempt for the litigation process and, as a result, refuse to testify. Many experts feel that not only is the process of providing evidence difficult and time consuming, but that they are treated in a demeaning manner, and that their evidence is poorly used. (cit. omit.) Professor Samuel Gross in his 1991 Law Review article on the same subject wrote: Reading the comments of lawyers and judges, it is easy to get the impression that expert witnesses are intruders who disrupt the judicial search for the truth. This is false, of course. …[T]he expert is not self invited to these parties. He is not a trespasser. He is called, then he is questioned, criticized, disputed, attacked, suspected, disregarded, and ridiculed. The expert witness that lawyers vilify is a creature of their own creation. (cit. omit.) This is why experts get paid handsomely for subjecting themselves, personally and professionally, to such scrutiny and scorn. However, as fees get bigger, so does the potential for bias, be it intentional or subconscious. Therefore, isn’t it only fair that this potential for inherent bias, based on the amount of money experts change for their testimony, be amenable to attack? Virtually all courts agree that it is. Wrobleski v de Lara, 727 A2d 930 (1999), exemplified this concept by noting that it is perfectly permissible to delve into such issues and allow the jury to determine any bias and the weight that particular bias should be given. The court in this case allowed questioning about:•How much the witness is being paid for testifying.•The frequency with which the witness testifies in similar cases.•Whether the witness usually appears for the plaintiff or for the defendant.•Whether the witness is frequently employed by a particular party (insurance company) or attorney.•How much income the witness derives from any particular party and from performing as an expert witness in general.•Whether there is a long-term relationship between the expert and one of the parties or attorneys. While mercenaries have existed for centuries, the hired gun or professional expert witness has only been part of our culture since the days of Liberty Vallance. Today, expert witnesses have indeed become professionals in their own right. Cross-examination of the expert medical witness has become more difficult because the modern medicolegal expert has become proficient in the art of expert witness advocacy. Drawing fine-line distinctions has become a fine art for some experts. Where do these super experts come from? Locator services will gladly find one—for a “modest” fee. A good expert witness is not only well trained in his or her particular field of study, but has also gained significant experience and expertise in the art of parrying cross-examining attorneys and persuading jurors of the truth as he sees it. The more successful they are at their craft, the more they get called to testify; and the more they can command for their services. Just how far can one go in discovering or intimating pecuniary bias on the part of an expert witness? The Wrobleski court noted that it is not appropriate to engage in: …harassment of expert witnesses through a wholesale rummaging of their personal and financial records under the guise of seeking impeachment evidence…[P]ermitted inquiry…should be tightly controlled by the trial court and…not permitted to expand into unnecessary exposure of matters and data that are personal to the witness and have no real relevance to the credibility of his or her testimony. In addition, the court also noted that even though an expert witness may: …devote a significant amount of his time to forensic activities or earns a significant portion of income from those activities does not mean that the testimony given by the witness is not honest, accurate, and credible. All courts have agreed that it is simply one more matter for the jury to know about, weigh, and consider in their deliberations as they search for the truth of the matter. Before we stomp our feet too loudly about the plethora of hired guns and the detrimental effect they have on the practice of orthodontics—or any profession, for that matter—it is best to keep in mind that the Earp bothers were, among other things, hired guns. Both sides make good use of these professional experts, these champions of the truth, these wizards of words. What bothers me is not that expert witnesses exist, but that they exist in such large numbers. Do we make that many clinical mistakes that it is merely a demand-versus-supply issue? Is it that business is slow and this is a way to fill up one’s day? Do some doctors become witnesses because they have crosses to bear, philosophies to expound, reputations to make? Maybe it’s just the lure of easy money? Then again, at some point during our careers, all of us have committed, or will commit, malpractice. We don’t do anything wrong on purpose; that’s why they call it negligence—an accident. Most of the time it is of little clinical significance or consequence. Occasionally, we really do injure one of our patients. When this happens and a patient feels aggrieved and looks for redress, if this plaintiff is denied the ability to put forth a claim because of the lack of access to an expert witness, and thus access to the judicial system, then what? From a bioethical perspective, we should stand ready to make the patient whole, to get what we deserve, to have mercy, and to facilitate reparations. Yet, if we believe we will be forced to suffer disproportionately, with respect to the actual breach or injury, and if the plaintiff is allowed to hire an expert advocate, aren’t we entitled to the same ammunition in order to adequately defend ourselves? When we function as expert witnesses, as long as we are honest and believe in the truth of our position, the system really does work. If you believe in the plaintiff’s case, testify for the plaintiff. Of course, the converse also holds true. In addition, bearing false witness cannot be tolerated. If it is discovered that an expert breached the public trust while functioning as a witness, it should be deemed as unprofessional conduct and lead to appropriate professional sanctions. Oh, one more thing—some food for thought on the clinical implications of this legal discussion. Suppose you and I are opposing experts in a case. Your testimony and position are bolstered by the literature, as well as by your experience and expertise. I respect your position in the same manner in which you respect mine, a position also based on interpretation of the literature coupled with experience and skill. We are both men of clinical science, and we are both testifying truthfully. If this is the case—and it often is—what’s all this hooey about evidenced-based dentistry? Information pertaining to litigation, legislation, and ethics will be reported under this section of the American Journal of Orthodontics and Dentofacial Orthopedics. Manuscripts for publication, readers’ comments, and reprint requests may be submitted to Laurance Jerrold, DDS, JD, 82 Laurel Dr, Massapequa Park, NY 11762.