Expert Witnesses in High-Profile Litigation: Three Defining Trials

Expert witness testimony can oftentimes make or break a case. In particularly publicized trials, with high stakes both in and out of the courtroom, an expert witness can sway the jury while also garnering favorable (or unfavorable) public opinions. From product liability to criminal law, expert witnesses have left their mark in some of the country’s most famous (and infamous) trials. Below are just some of the ways experts have affected the outcomes in cases throughout different practice areas.

Criminal Law: The O.J. Simpson Trial

The trial of O.J. Simpson for the murder of his wife, Nicole Brown, and Ronald Goldman is arguably one of the most infamous criminal trials of the 20th century. Ample DNA evidence at the inception of the case and the notorious white Bronco car chase amplifying media attention pointed to Simpson’s guilt. As the trial progressed, however, defense experts and the superb cross-examination skills of Simpson’s counsel managed to turn the tide, resulting in one of the most famed acquittals in recent history.

One of the prosecution’s intended star witnesses was Dennis Fung, a forensic scientist from the Los Angeles Police Department who was responsible for collecting the blood and DNA evidence from the scene of the crime. The defense’s case theory ‒ which was quite unorthodox for the time ‒ argued that Simpson was being framed by the Los Angeles Police Department. With this theory as a backdrop, Barry Scheck, one of Simpson’s defense attorneys, questioned Fung extensively on his preservation methods during cross-examination. While being cross-examined, Fung admitted that he stored blood samples on the floor of a warm evidence truck for seven hours, had left a vial of Simpson’s blood unrefrigerated overnight, and failed to collect blood stains from the gate of the crime scene until three weeks after the murders. After nine grueling days on the witness stand, Fung famously shook hands with Simpson and his defense counsel.

The defense team called their own expert, famed forensic scientist, Henry Chang-Yu Lee, who pointed out a number of issues surrounding the collection and preservation of the prosecution’s key pieces of evidence. For example, Lee testified that a pair of socks found at Simpson’s home came in contact with blood while they were lying flat, as opposed to while they were being worn, suggesting that the police may have tampered with the evidence.

Lee also testified that a paper holder that contained evidence had exhibited an inexplicable smudge, further bolstering the defense’s case theory that blood evidence was tampered with in the laboratory. Lee’s testimony was considered damaging to the prosecution’s case and proved critical in solidifying the theory that more than one attacker was involved in the murders. Lee also became a star in his own right, with the media recognizing that the jurors enjoyed his “chipper self” and jovial quips.

Even though it has been over twenty years since the acquittal that rocked the world, Lee’s testimony still lives in infamy and he is often interviewed about the trial. Lee credits the Simpson trial as being one of the first cases to call into question evidence preservation. As he stated: “There were so many issues with the major crime scene in that case…This case set the landmarks for crime scene and laboratory handling of evidence.”

Big Tobacco: Decades of Lawsuits and Experts

Few industries have seen such deterioration in public opinion as the tobacco industry. But unlike other products liability claims, it wasn’t just one case that led to the tobacco industry’s downfall. Rather, the sharp decrease in cigarette smoking throughout the United States was many years and many experts in the making. As early as the 1950s, medical experts began positing that smoking cigarettes leads to lung cancer and other serious health conditions. Some tobacco companies were sued but most won in court, claiming that there was no proof that smoking was the sole cause of cancer and that consumers assumed any risks associated with cigarettes. Fast forward thirty years to the 1980s: despite mounting evidence to the contrary, the tobacco industry still refused to admit proof of its product’s hazards, holding that it took time to establish a scientific consensus.

By the 1990s, however, plaintiffs began seeing some success in lawsuits against tobacco manufacturers after leaked documents indicated that the companies were aware of the addictive nature of these products and failed to disclose this health information to consumers. In 1998, attorneys general from 46 states, armed with ample medical opinions, alleged that tobacco companies created a product that adversely affected consumers’ health and created significant costs for the public healthcare systems. As a result, a massive settlement was reached with the four largest United States tobacco companies, requiring them to cease the use of deceptive marketing practices and pay more than $206 billion over the course of the next 25 years.

In 1999, the United States Department of Justice followed suit and sued several major tobacco companies for fraudulent and unlawful conduct. Brought under the Racketeer Influenced and Corrupt Organization Act, the DOJ alleged that the tobacco companies engaged in a decades-long conspiracy and deceptive marketing practices to mislead the public about the risks of smoking, secondhand smoke, and nicotine addictiveness. After six years of litigation and nine months of trial, Judge Gladys Kessler of the United States District Court of the District of Columbia found the companies liable.

The verdict, which consisted of nearly 1,700 opinions, cited an abundance of medical testimony, most notably, a landmark 2006 Surgeon General’s Report detailing the hazard of secondhand smoke. In comparison, defense experts for the tobacco companies focused on a historical narrative, with historians testifying that throughout the decades, the hazards of smoking was “common knowledge,” and thus, was not concealed from consumers.

Around this time, individual lawsuits against tobacco companies began picking up steam as well. A major win occurred in February 2000, when a California jury ordered that tobacco giant Philip Morris pay $51.5 million to a plaintiff who had developed terminal lung cancer. More recently, in 2015, a $100 million settlement was reached in 400 Florida lawsuits against three tobacco manufacturers. As the scientific evidence and expert research continues to advance, it is likely that these lawsuits will become more and more difficult for the manufacturers to win.

General Motors Ignition Switch Case: A Recent Expert Ruling

In late 2017, General Motors Co. won a key court ruling in two bellwether cases before Judge Jesse Furman of the United States District Court for the Southern District of New York. Numerous lawsuits were filed against the automobile manufacturer after its defective ignition switches were linked to 124 deaths, 275 injuries, and a recall. Judge Furman oversees a multidistrict litigation of over 200 cases, two of which were dismissed due to a lack of expert testimony.

According to court filings, the plaintiffs alleged that the GM ignition switches on their vehicles rotated from “run” at the moment of the crash impact to “accessory” or “off,” which caused or worsened the accidents. As per the expert testimony submitted to the court, the switches then may have turned back to “run” before the airbags deployed. However, Judge Furman ruled that the expert testimony concerning double switch rotation was unreliable and dismissed the two cases.

Judge Furman writes in his 25-page opinion that: “Significantly, neither plaintiffs nor their experts cite any evidence suggesting that double ignition switch rotation has occurred in the real world…Nor did (or could) they conduct any experiments that would tend to show that double switch rotation is anything more than a theoretical possibility.” Judge Furman recognized that his decision “may have a significant impact” on the swatch of pending cases, but noted that the court’s role is “to ensure the reliability and relevancy of expert testimony and to make certain that an expert…employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

While GM has already paid more than $2.6 billion in penalties and settlements in connection to their ignition switches, in light of expert testimony issues the dismissal of these two cases certainly raises the stakes for both sides when it comes to future case strategy and expert witnesses. As evinced in Judge Furman’s holding, the GM litigation will likely be a case swayed by the strength or weakness of experts.