2nd Place – The Expert Institute’s 2015 Legal Blog Post Writing Contest

Nigel Phiri is a J.D. candidate at Mercer University’s Walter F. George School of Law. Nigel explores the crossroads of private compensation and the reliability of expert testimony in his paper “Follow the Money: the Integrity of the Career Expert Witness.” Examining the development of the American legal framework that regulates the use of expert witnesses, Nigel highlights the rise of the “career expert” as a major failing of the current system. To alleviate this issue, Nigel argues for the introduction of court appointed expert consultants to evaluate the admissibility of each side’s privately retained expert before trial.

Follow The Money: The Integrity of The Career Expert Witness

Nigel Phiri – Mercer University Walter F. George School of Law

I. Introduction

Our laws allow a party that retains an expert witness to provide that witness with financial compensation in exchange for the witness’ testimony. Fed. R. Evid. 706(c). Such an incentive, not surprisingly, encourages some parties to seek experts who are willing to testify in a manner that is favorable to their case. Observably, such practices can taint the justice system, because financial gain becomes the motivation. Furthermore, it is difficult for courts to uniformly supervise expert witnesses because the expert group is large; they can be surgeons, economists, handwriting experts, toxicologists, etc. A party can win a case solely because it can afford the best career expert witness. Some experts are willing to do and say whatever is necessary as long as they get paid.

This blog post proposes a fundamental change to how courts should treat the retention of expert witnesses: continue to allow private parties to retain experts, but require them to allocate some of the expert’s payment to a state-employed overseer who certifies that the experts adhere to compliance guidelines and standards.

II. The History of Expert Witnesses

The concept of an “expert witness” was first established in England by Lord Mansfield in the case of Folkes v. Chadd, (1782). In that case, a harbor had decayed and a witness, Mr. Smeaton, was called to testify, not on the facts of the case, but because of his profession as an engineer and his knowledge “in the construction of harbors, the causes of their destruction, and how remedied.” The defendants objected to Mr. Smeaton’s testimony because it was opinion testimony. Overruling the objection, Lord Mansfield established a long-standing precedent: expert witnesses are “men of science” who may give opinion testimony within their own science. The crossover to American courts, however, was a little more difficult.

The Supreme Court first analyzed the expert witness issue in the case of Schooner Catharine v. Dickinson in 1854. The Court stated that in order to be qualified as an expert witness, the witness’ testimony had to be “reliable”. But the Court failed to provide a clear test for determining what exactly “reliable” meant. Subsequently, it became almost effortless for any professional to meet the vague standard. Over time, the courts clarified the standard, and the law as it applies today states that “expert testimony has to rely on principles that are ‘generally accepted’ by the scientific community and have to meet the standards of peer review”. Frye v. United States, (1923). This creates an objective test that allows courts to analyze the witness’ credentials before expert status is granted.

In 1975, Congress passed several reforms that applied to expert witnesses. One reform in particular granted expert witnesses the right to “reasonable” compensation. Once again, the Court failed to provide clear guidelines as to what “reasonable” meant or how the compensation should be calculated. This indirectly led to the bidding war we have today, in which the most qualified expert witnesses are able to hold out for the parties that can afford their exorbitant fees, which range anywhere from $100-$600/hour.

III. The Nature of Expert Witness Testimony

Generally, lay witnesses are only permitted to testify about information that is within their personal knowledge i.e. their testimony is limited to facts (Fed. R. Evid. 602.) They cannot provide their personal opinions. Expert witnesses, however, are special; they are permitted to provide testimony that includes their personal beliefs and opinions, so long as those opinions are grounded in scientific experience or knowledge in which the expert is uniquely trained and qualified (Fed. R. Evid. 703.) The unique position of expert witnesses makes them imperative in cases involving very complex issues such as the speed an automobile was traveling when the driver applied the brakes or if a particular type of medicine was appropriate for a specific patient. Therefore, the outcome of a case can potentially turn on the expert’s testimony (Fed. R. Evid. 26(a)(2)(A). So, ideally, it is in the best interests of justice if the expert maintains a candid and sincere approach to providing testimony, regardless of how much money a party is willing to pay.

There are several qualifications that courts look at before certifying an individual as an expert. These include: (1) the scope of services to be performed by the expert; (2) the rate of compensation to be paid for the expert’s services, including whether the fee will vary depending upon the services rendered, e.g., research, review of documents, examination, dictating of report, travel, or testimony; (3) whether advance payments or retainers are required and, if so, under what circumstances; (4) the handling of costs and expenses; (5) cancellation terms and amounts; and (6) the person or persons responsible for payment of those costs and fees.)

IV. The Payment of Expert Witnesses

Some experts have relied on the “compensation” language in the law to become “career experts,” acting essentially as a hired gun for any party that can pay them. Steven Moss, a former expert witness, in his article Opinion for Sale, states that “many highly trained individuals forgo the practice of their profession entirely and make their living as experts, often because the money is better. An emergency room doctor, who might make $140 an hour stitching up lacerated thumbs, can pull in $350 an hour serving as a courtroom expert.” The chair of an economics department at a major university can earn upwards of $600 an hour for testifying. In another example, Jim Demaine, a doctor, states that he knows “a chiropractor who brings in more than $500,000 a year by testifying. It’s common for experts to charge $400-500/hour, but some local orthopedists charge up to $1,200 per hour and want to be paid in advance!”

In some instances, some experts are so enticed by the money that they are willing to falsify their credentials just to be career expert witnesses. For example, a Florida physician, Dr. Richard Dellerson, made several false claims about his background: claiming he went to Johns Hopkins Medical School when he didn’t, claiming to be a member of the Florida Medical Association when he was not, and claiming to be a member of the American Medical Association when he was not. Dellerson had testified as an expert in over 300 medical malpractice cases and received millions of dollars in compensation.

So naturally, it is no surprise that expert witnesses are distrusted by the courts. Judges believe that the experts are loyal to the clients at the expense of their oath to testify truthfully. Therefore, it is not a surprise that courts have established certain guidelines to try and oversee the testimony of experts. For example, in Whitehouse v. Jordan, (1981), an expert testified as to whether a doctor had operated within the reasonable standard of care after a delivery resulted in brain damage to a baby. The court instructed that when an expert witness provides testimony, “it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of the litigation. To the extent that is not, the evidence is likely to be not only incorrect but also self-defeating.”

However, expert witnesses have succumbed to the exigencies of litigation, mostly for their own financial gain. For example, in the Journal for Psychiatric Treatment, Kevin J. B. Rix states that “not everyone has access to a top-shelf expert at $600 an hour. The winner of the case is too often the side wealthy enough to purchase the highest-caliber experts.” Steven Moss, a former career expert witness, elaborated on his mindset when working on a case: “facts started to become less important to me than winning the case. Each side insisted that their version of the truth was the correct one, and I soon realized that what was at stake was the potency of my argument more than the reality of the story I was telling. I quickly learned not to worry whether or not I was right.”

Implementation of Standard Compliance Guidelines

Like any witness, experts are liable for perjury. There have been some cases in which courts came down particularly hard on experts for lying. For example, in Bermejo v. Amsterdam, a doctor testified as an expert was severely chastised by the judge for perpetuating insurance fraud because unknown video evidence showed that the doctor greatly exaggerated how long he spent examining the plaintiff’s injury. The judge ordered the doctor to be held in contempt for perjury and notified the District Attorney to prosecute him accordingly. But the fear of a conviction for perjury has not been sufficient to deter some experts from exaggerating testimony for a big payday. And because experts testify in fields where they are highly trained and judges are not, it is often difficult for judges to consistently determine whether the experts are being truthful. New laws and stricter guidelines have to be implemented to negate the financial motivation that causes some experts to lie.

A move in the right direction involves implementing the following procedures. First, when parties retain experts, the court should have its own independent consultant to evaluate the admissibility of the experts’ testimony before trial. Second, the consultant must possess similar skill and expertise as the experts i.e. if the experts are economists, then the consultant should have an economics background; if the experts are doctors, then the consultant should have a similar medical background etc. Third, the consultant should be authorized to order and conduct a pre-trial conference where the experts are reminded that their duty is to the truth, not to their clients. The pre-trial conference should be an opportunity to determine which issues the experts can agree on and those which they do not and why. Finally, the courts should empower the court’s consultant to reach a final decision on issues the experts disagree on.

These procedures allows for an independent and skilled mind to review the work of expert witnesses. Moreover, since the consultant will have a similar background to the experts, he or she will be able to identify those experts who are willing to fabricate the truth for personal gain. This creates a clear, unbiased, and objective evaluation of the testimony and determines whether the expert will be allowed to proceed at trial. The consultant will also save the judicial system valuable time and resources because judges and juries will no longer have to hear opposing experts make frivolous claims for their clients.

However, this program alone is not enough; there has to be harsher penalties for those who try to circumvent the system. Once it has been determined that a party is perpetuating information that is inaccurate, he or she will receive an initial warning from the court’s consultant and the judge to cease immediately. A second violation will lead to the expert being disqualified from the case and banned from testifying as an expert for the remainder of his or her career. Additionally, the expert should be swiftly prosecuted for perjury. As punitive as this punishment may seem, courts should not tolerate misrepresentations on any level. Therefore, the career expert witness who is willing to commit perjury for money will finally be punished accordingly for perpetuating doctored testimony.