Expert Testimony Reliability - Case Study Example

Running Head: EXPERT TESTIMONY RELIABILITY EXPERT TESTIMONY RELIABILITY [The [The of the Expert Testimony Reliability Some ardent supporters of the jury system suggest "letting everything in" with regard to expert testimony thereby allowing juries to make what they will of it. These scholars would argue that the problems discussed by Justice O'Connor and others can be adequately overcome by applying existing safeguards. Those more critical of the jury system suggest that in general, jurors are not capable of evaluating expert testimony, even with current safeguards in place, and that the legal system needs to be modified in some fashion. One supporter of "letting everything in" is Brian Koukoutchos. With regard to scientific issues, Koukoutchos argues that "the search for a correct result is advanced by allowing the jury to consider... all of the scientifically relevant evidence." 1 His intuition implies that juries are capable of assessing scientific expert testimony without the need for safeguards like judicial gatekeeping. Yet the notion that a jury can competently resolve any type of scientific case they encounter seems overly optimistic, because laypersons will likely find some types of scientific claims to be impenetrable. Incompetent experts in criminal cases might be more newsworthy, but surveyors in civil courts face the same pressures. Last year, Geoffrey Wright, of EA Shaw, and I discussed the important role that expert witnesses have to play in dispute resolution (EG 23 July 2005, p90). The General Medical Council had just held that the evidence given by Professor Sir Roy Meadow at the criminal trial of Sally Clarke was "nave, grossly misleading, incompetent and careless". He was found guilty of serious professional misconduct and stripped of his licence to practice. On 17 February, Collins J ruled that Professor Meadow had acted "honestly and in good faith": see Meadows v General Medical Council [2006] EWHC 146 (Admin); [2006] 09 EG 182 (CS). The appeal was allowed on the basis that his conduct should not have exposed him to such a sanction. In the same week, Lord Goldsmith, the attorney general, announced new measures designed to ensure that expert witnesses in criminal trials give their objective opinion only and do not act as advocates. Expert witnesses will have to reveal all of their evidence, and its source, to investigating police. They will also have to declare anything "that might adversely affect their credibility or competence as an expert witness "and must "not give expert opinion beyond their area of expertise". (Cheffings. http://www.lovells.com/Lovells/MediaCentre/Articles/Expert+witnesses+-+A+test+of+impartiality+and+independence.htm) In contrast to a liberal admissibility view, Paul Milich maintains that "the jury's obvious limitations in evaluating complex scientific disputes cannot be overcome by the mythically powerful tools of cross-examination and closing argument." 2 He suggests that it may be over-hasty to assume that an adversarial proceeding will succeed in enabling a jury to understand scientific testimony satisfactorily. According to Mulch, when jurors are presented with complex scientific issues, they might choose to ignore these issues and make a decision based on other factors, such as an expert's physical appearance and his/her demeanor. Mulch's argument seems plausible because jurors might have to resort to this alternative if they really do not understand the proffered testimony. Since judges and juries do not share a common base of experience with an expert witness on the specialized matters being discussed in his/her testimony, they can have a difficult time probing into and evaluating the expert's reasoning and opinions. The accessibility of proffered claims can vary greatly depending on a number of factors, some of which were mentioned previously. The subject matter of some expert testimony can be inherently confusing, if not unintelligible, to laypersons. To return to a point made before, one might think of the probabilistic evidence offered by epidemiologists, which can be a considerable source of confusion. It can be difficult to assess on the basis of probabilistic evidence whether the product in fact caused a particular person to be ill. Moreover, laypersons might assume too hastily that a concurrence of two events entails causation. Sometimes a pattern might be prematurely discerned where none exists. Further, the connection between a product and an adverse event might not b e a simple cause and effect relationship. For instance, laypersons might carry the assumption that either A (a cellular phone) causes B (brain cancer) or it does not. But use of cellular phones might be one factor among many that may at times increase the likelihood that someone develops brain cancer. There may be other factors that contribute to the development of brain cancer such as exposure to hazardous chemicals or genetic makeup. The GMC's decision to remove Roy Meadow from the register has been overturned by Collins J in a ruling which extends immunity from suit so that it can be used to protect witnesses from prosecution by their disciplinary body. The judge found public policy reasons for extending the ambit of this immunity but stopped short of a blanket immunity. It will still be open to a judge to refer the conduct of an expert witness to the relevant regulatory body. The appellant appeared as an expert for the prosecution in the case of Sally Clark who was charged with murdering two of her children, both of whom died when a few weeks old. He gave evidence that the deaths were not natural . Sally Clark was convicted of murdering both children and spent some years in prison until her appeal was allowed. Sally Clark's father complained to the GMC, alleging that when he gave evidence, the appellant had misused statistics. The Fitness to Practice Panel (FPP) found that the appellant had not intended to mislead the court ,that there was no evidence of any calculated or wilful failure to use his best endeavours to provide evidence and that he had acted in good faith. The FPP found serious professional misconduct proved and ordered that the appellant's name be removed from the register. (Legal Update, Accessed on 05/30/2006 from http://www.tltsolicitors.com/legal-update/Professional-Conduct-Online-Update/2006/P6536.asp) There are subject matters that can be profoundly difficult to understand and can take years before they are mastered. DNA testing is one such example. With regard to DNA testing, judges and juries may lack the relevant theoretical background about DNA, including the statistical significance of test results. As a result, after hearing expert testimony regarding a DNA test, they might not appreciate what is being presented to them. There are numerous concepts and terms that must be understood by judges and juries before they can properly evaluate the merits of DNA evidence presented before them. Judges and juries will be at a loss, for instance, when considering the statistical significance of DNA test results and how these numbers were calculated. Lab technicians have to undergo years of training so that they can understand how DNA tests work. Yet judges and juries do not have the benefit of such training. Moreover, judges and juries have to determine whether the statistics offered by the prosecution or the de fense are accurate and figure out whether the test results have been tainted by faulty evidence-collecting procedures or misrepresented by biased technicians. In sum, judges and juries might be overwhelmed when they have to evaluate technical and complex testimony. Their task can even be further muddled when faced with the testimony of conflicting experts. Since judges and jurors typically lack acquaintance with the issues being discussed, this can lead to the problem of intelligibility, meaning that when the trier of fact has a difficult time understanding specialized issues because of the technical terms and concepts often used, this may force experts to modify the information presented so that it is easier to comprehend.3 For example, experts might have to use metaphors and analogies to convey complex ideas to their audience. However, the pursuit of clarity, in the attempt to help judges and jurors understand the specialized issues at hand, may come at the cost of precision and accuracy. While an expert tries to avoid using technical language and translate his/her opinions into a "clearer" form, the essence of those opinions may be altered significantly. The manner in which experts present their opinions in court can be a source of confusion. Often what may happen in court cases with specialized issues is that both parties put forth experts providing testimony to support their respective point of view. This situation can leave the jury in the position of judging between the conflicting opinions of experts. Yet, as Learned Hand pointed out a century ago, in cases where experts disagree, laypersons might not have a suitable way of deciding which expert opinion is more likely to be true. 4 Lay judges and juries are not in a privileged epistemic position from which they can pick out the expert opinion that is closer to the truth. Even assuming that laypersons are capable of understanding the issues discussed, Samuel Gross argues that "the structure of legal proceedings can distort the jury's view of a field of knowledge."5 Experts can have a significant financial or professional interest in a trial's outcome, which may cause them to skew their testimony. A hired expert can cleverly manipulate testimony, putting it in a way that most benefits his/her party. For example, Dr. Ralph Erdmann is infamous for providing "made-to-order" autopsies for the police, meaning that he would contort his opinions to match what he believed the police wanted.6 Some individuals may desire to be hired again as an expert witness in the future or to have their claims look more credible than they are, which may contribute to their professional livelihood. Judges and juries have to overcome a variety of obstacles when faced with expert testimony. The trier of fact often lacks the relevant theoretical background beliefs needed to appreciate whether the methodology an expert used was appropriate. For instance, a judge may have to decide whether a lab technician followed the appropriate procedures while using polymerase chain reaction techniques. But what criteria would a lay judge use to make this assessment Moreover, judges and juries cannot blindly trust an expert's credentials, because credentials are not always indicative of expertise. As Jennifer Laser notes, "the presumption is that, given the showing of required expertise, the court can trust the expert's conclusions. That trust, however, may be unwarranted." 7 A heavy burden is placed upon our courts to sort through the vast array of purported experts who appear in court, displaying all sorts of "impressive credentials," and determine who the true experts are. In essence, we are asking judges and juries to separate credible individuals from charlatans in a vast array of fields when experts themselves may have a difficult time doing so in their own field. For some fields, such as medicine and law, there are established and time-honored credentials that we assume are indicative of expertise. But figuring out whether certification, licenses, board exams, etc. in a given field are meaningful depends in part on whether there is a relevant expertise that can be obtained in that field. For example, there is ongoing debate about whether certificates awarded by the American College of Forensic Examiners are meaningful, because there is some reason to doubt the legitimacy of that organization and whether its members have expertise. 8 Hence, even if witnesses display their credentials openly, it is not always clear whether those credentials are meaningful. Not only do judges and juries face problems determining who the experts are, there may be vast disparities concerning how well they understand specialized issues. For instance, judges operate with different preconceptions about science, which may depend on their interest and familiarity with scientific issues. Judges' views on science have ranged from deference to outright contempt. Further as John Conley and David Peterson note, "scientific aptitude plays no part in judicial selection, judges range from closet Einsteins to proud Luddites."9 Their level of understanding is partly due to the number and variety of cases they have previously been involved in and their formal and informal education. These observations relating to science can be extrapolated to cover any number of fields where the preconceptions about a field that judges and juries carry with them, along with their level of understanding, can vary considerably. As I argued earlier, one should inquire as to the sources from which the public gets its information about specialized issues. A jury is supposed to be representative of the general public. It would be wise to figure out how well the people who comprise juries understand specialized issues they are likely to hear about and evaluate in courtrooms. For instance, one could examine the influence the media has on the public's grasp of scientific issues. Or, we could look at the effect that television shows have on the public's opinions. For example, if the public takes television's depiction of science seriously, they might conclude that cardiopulmonary resuscitation (CPR) is always successful or that DNA fingerprinting infallibly picks out a particular individual every time. Hence, what may be needed are more comprehensive studies evaluating the layperson's understanding of specialized issues before we can reasonably say whether jurors can competently evaluate the different types of issues they encounter. Expert Witnesses And Problematic Cases Judges and juries have had significant difficulty evaluating expert testimony for a variety of reasons. Problems with the expert testimony can stem from the inherent differences between experts and laypersons. Lay judges and juries are charged with evaluating all sorts of specialized claims offered by experts, some of which are not accessible to them. There are also instances where problems can result from expert testimony even though the proffered testimony is accessible to laypersons. Courts can have difficulty with specialized claims if there is not sufficient evidence to confirm or disconfirm them. There have been cases where judges and juries had to determine the merits of expert testimony that was inaccessible to them. For instance, Bendectin, the controversial antinausea drug manufactured by Merrell Dow, has been the subject of numerous lawsuits. It was taken off the market in 1983 largely because of the growing legal costs that Merrell Dow was being forced to pay. Mike Redmayne argues that the number of experts presented on both sides of the Bendectin dispute probably had a "leveling effect" on juries, making them believe the scientists were evenly divided on the issue of causation. 10 This assessment appears to have some merit in light of how Bendectin cases were decided. Juries offered inconsistent decisions concerning whether Bendectin is a teratogen. 11Approximately forty percent of juries ruled for the plaintiffs, and many of these rulings were eventually overturned during appeal. Further, there is no clear link established between Bendectin and birth defects. In fact, James Rose nbaum claims that the rate of limb defects has remained unchanged since Bendectin has been taken off the market. 12 Further, there is some chance that Bendectin will return to the U.S. market. 13 In ILC Peripherals Leasing Corp. v. IBM Corp. (1978), the jury's inability to understand crucial issues during trial led a court to deny a request for a jury trial if the case was to be retried. In this case, a jury tried to decide whether IBM was guilty of monopolizing the computer industry market. The sheer amount of information that the jury was charged with evaluating was enormous. During five months of trial, there were 87 expert witnesses called on to provide testimony, amounting to over 19,000 pages of transcript. Also, there were more than 2,300 exhibits admitted into evidence. The trial judge believed that the jury was struggling to understand the complex, technical issues presented before them, which was confirmed by the responses jurors gave to questions about the trial that the court posed to them. After the jury was deadlocked for 19 days during its deliberations, the judge decided to declare a mistrial. While reviewing IBM's request for a directed verdict, the U.S. District Court for the Northern District of California proposed that in complex antitrust cases like this one, the system will be "better served if the decision is ultimately made by the court." 14 The judge alleged that the accounting and engineering concepts in this case "are far beyond the experience and understanding of an ordinary jury." The judge submitted that it is unreasonable to have a trial by jury in cases "when there is a substantial risk that its decision will be arbitrary." In sum, the judge lacked confidence in the ability of jurors to understand the proffered expert testimony adequately (although it is not clear whether a judge could have handled the issues better). There were very difficult and technical issues to be sorted out in the IBM case. It is unclear whether any group of laypersons could handle the vast array of issues that were discussed. Further regardless of the complexity of the issues, the volume of information presented was overwhelming. It is hard to imagine that even a dedicated jury would be able to keep track of the testimony of over eighty experts over a five-month period. In the case of Wells v. Ortho Pharmaceutical Corporation (1985), the crucial matter in dispute was whether defendant Ortho Pharmaceutical Corporation should be held liable for plaintiff Katie Wells' birth defects, which were allegedly caused by a spermicide the defendant manufactured. During trial, the plaintiffs waived the option of trial by jury. Hence, it was up to a trial judge to decide the merits of the plaintiffs' case. The judge had to determine whether Mary Maihafer's use of Ortho's spermicide, after she had become pregnant with Katie Wells and was unaware of the fact, contributed to her child's birth defects. The plaintiffs alleged that the spermicide was the proximate cause of Wells' birth defects. Following two weeks of trial and after weighing the evidence, the trial judge ruled in favor of the plaintiffs, awarding them a 5.1 million-dollar judgment. Surprisingly, given the verdict in the case, the judge suggested that "the studies failed to show conclusively whether or not the spermicide caused any or all of the birth defects suffered by Katie Wells." The judge had to ascertain whether there is sufficient evidence to link the spermicide to birth defects in general. Then, the judge had to figure out whether the plaintiff had met the burden of proof by providing enough evidence to show that the spermicide was the likely cause of birth defects in this particular instance, a determination which would involve ruling out other likely possible causes. Since the experts offered conflicting testimony, the judge tried to assess the tone and demeanor of the testifying experts, which are notoriously unreliable indicators. In sum, it is unclear whether the trial judge, or any layperson for that matter, can make all the complex assessments needed in this type of case. The appellate court's decision is rather puzzling. It does not seem reasonable to resolve a dispute between experts by examining the demeanor of the people who testify. In other words, the appellate court condoned the trial judge's attempt to assess the demeanor and tone of the testifying witnesses when the judge had difficulty managing conflicting expert testimony. Surely, this is not a reliable way of resolving a dispute between experts. A person's demeanor and tone do not necessarily correlate with the truth of what he/she is saying. Moreover, it is rather mysterious as to how a court can hold that a causal link between a product and a medical condition has been sufficiently established if medical and scientific communities themselves are unsure whether one exists. With all due' respect to the judges presiding over the trial and appellate phases of the Wells case, the types of specialized issues discussed in the case were beyond the ken of any judge's expertise. Representations were made that as a result of the FPP's finding against the appellant, the Family Division was finding it difficult to find doctors to produce reports and give evidence. It appeared from the judgement of Collins J that "immunity from suit" was not raised before the FPP or in the grounds of appeal. Collins J ruled that immunity from suit applied to prevent disciplinary proceedings being brought against someone in consequence of evidence that they had given. He found there were public policy reasons for extending this to witnesses who found themselves subject to disciplinary proceedings. He did however state that this was not a blanket immunity. Judges before whom expert evidence had been given could refer the expert to the relevant disciplinary body if satisfied that his conduct fell so far below what was expected of him as to merit disciplinary action. Where a witness had given evidence honestly and in good faith, it was highly unlikely that he would ever be referred. Collins J went on to consider the position if the FPP had had power to deal with Roy Meadows, i.e. if there had been no immunity from suit. He ruled that the finding of serious professional misconduct was in all the circumstances wrong and that the sanction had been too severe. (Legal Update, Accessed on 05/30/2006 from http://www.tltsolicitors.com/legal-update/Professional-Conduct-Online-Update/2006/P6536.asp) Bibliography Albert Momjian, Preserving Your Witness's Stellar Testimony: How To Qualify Your Expert to the Court, Fam. Advoc., Summer 2003, at 8, 8. C.A.J. Coady, Expert Testimony: A Philosophical Study (2002). Charles Nesson, Agent Orange Meets the Blue Bus: Factfinding at the Frontier of Knowledge, 66 B.U. L. Rev. 521, 521 (2001) Daubert, Millich. The Doctor in Court: Impartial Medical Testimony, 40 S. Cal. L. Rev. 728, 728-29 (1999). Elizabeth Fricker, The Epistemology of Testimony, 61 Proc. Aristotelian Soc'y Supplement 57, 73 (2000). Gordon J. Beggs, Novel Expert Evidence in Federal Civil Rights Litigation, 45 Am. U. L. Rev. 1, 2-3 (2001) Hyman Hillenbrand, The Effective Use of Expert Witnesses, Brief, Fall 2001, at 48,49. Legal Update, Accessed on 05/30/2006 from http://www.tltsolicitors.com/legal-update/Professional-Conduct-Online-Update/2006/P6536.asp) Nicholas Cheffings. Expert witnesses - A test of impartiality and independence 11 March 2006 Published in: Estates Gazette. Accessec on 05/30/2006 from http://www.lovells.com/Lovells/MediaCentre/Articles/Expert+witnesses+-+A+test+of+impartiality+and+independence.htm. Samuel R. Gross, Expert Evidence, 2000. Wis. L. Rev. 1113, 1126-36. Stephen E. Nagin, Economic Experts in Antitrust Cases, Litigation, Winter 2002, at 36, 37. Read More