Anyone who knows me, or takes one of my classes, knows that I am a supporter of the jury system. But even I have to admit that we may be heading for a disaster when it comes to the increasingly complicated world of scientific expert witness testimony.
A few years back, there was a conference in which experts, judges and attorneys came together to discuss their experiences with the role of expert witnesses in the courtroom. While the insights were anecdotal, they illuminated many of the issues they have each confronted over the years.
One issue that arose concerned the judge’s role as gatekeeper in applying Rule 702 of the Federal Rules of Evidence (which was the codification of the U.S. Supreme Court expert witness trilogy of cases: Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993), General Electric Company v. Joiner 522 U.S. 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997), and Kumho Tire Co. Ltd. V. Carmichael. 525 U.S. 959 119 S. Ct. 399 142 L. Ed. 2d 324 (1998).
Among the increasingly common subjects of litigation has been that of toxic tort cases. These types of cases often require an expert to define toxicity; an expert to determine the presence of those toxic substances; an expert to explain if the toxic chemical was present in the plaintiff and, if so, how it got there; an expert to explain the deleterious effect of the substance; and yet another expert to explain the financial and/or physical impact of that toxic substance upon the plaintiff. So we go from chemistry, then perhaps to geology, over to toxicology, on to biology and finally ending up in economics.
In other words, in one trial, perhaps a week or a month or even several months, a jury of laymen, whose educational background might average a year or two in college, are now expected to make an important decision that requires them to understand perhaps a half dozen esoteric disciplines that each requires a Ph.D. to understand and explain. And that’s only on the plaintiff’s side. Add to that another half dozen Ph.D. expert witnesses from the defense who disagree with all of the Ph.D’s on the plaintiff’s side and – well – you get the picture.
Of course this all presupposes that the judge, acting as scientific gatekeeper even though his expertise is the law, has determined that these dozen experts all meet the standards in FRE 702 with respect to general acceptability within each of their expert disciplines.
Not surprisingly, all of the Judges present at this conference indicated that they took their responsibility as gatekeeper quite seriously.
One particular judge noted that the typical role of the jury is to listen to the evidence and then to use their common sense to decide whether the evidence was persuasive and credible, or inconsistent with their own life’s experiences. But scientific evidence such as the types necessary in a toxic tort case is far from the conventional type of evidence that a juror is typically expected to parse in a hit and run accident. As a result, some judges believe that juries are prone to giving too much weight to an expert’s testimony and opinion, simply because they themselves really don’t have an opinion of their own.
Realizing this, courts frequently err on the side of precluding expert testimony in close situations simply because juries are so susceptible to yield to the opinions of an expert. The more complex the case at bar, the more likely a juror is to rely upon the testimony of the expert witness. And since we have an adversarial system of jurisprudence, they are asked to make a distinction among expert witnesses.
The flipside of this problem is the concern expressed by an attorney who suggested that science is rarely one hundred percent reliable. There is frequently room for disagreement and doubt. Thus the judge, in his desire to protect a jury from giving undue weight to an expert’s testimony, may be overcompensating because science frequently is and remains unsettled.
Among the suggestions was to assist both judges and juries in weighing expert testimony by doing a better job of educating them both by, for example, providing written reports in addition to the usual oral testimony and visual displays. Or providing a primer of sorts so they at least have an idea of what is and what isn’t credible science. Of course, this just begs the question: how much education is appropriate and what are the standards for that education of judges and juries?
For now, however, it appears that we will remain stuck with the old standby: juries will believe the expert who sounds more self-assured; or who looks more the part of scientific expert.
The only thing we know for certain is that as life continues to get more and more complicated, so will the trials (and tribulations) of juries in the coming years. And there will come a time when this wonderful system dependent upon a jury of a plaintiff’s and defendant’s peers will be confronted with a life-altering determination without a prayer of being able to resolve the issue intelligently. Indeed, we probably have already crossed that threshold a thousand times or more. But over the years to come, these occurrences will increase in frequency and importance.
At some point, either the legislative branch or the judicial branch is going to have to come to grips with the fact that juries might not be equipped to handle the complex problems of the day.
Until then, I strongly recommend that you use a confident and highly skilled communicator as your expert.
By: Ian Heller, Attorney at Law