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Judges Urged to Appoint Their Own Expert Witnesses

Judges Urged to Appoint Their Own Expert Witnesses

PHILADELPHIA--Science in the courtroom has drawn increasing attention in recent years, and has generated proposals that justice would be better served if judges relied on their own panels of expert witnesses when they try complicated cases. A group of panelists at the annual meeting of the American Association for the Advancement of Science (AAAS) addressed this idea and the overall status of science and litigation.

Several of the panelists saw serious problems for science and the legal system, as well as society, in trying to settle legal cases without adequate scientific data. "Legal questions can only be asked after the scientific determination," said Marcia Angell, MD, executive editor of the New England Journal of Medicine. "Justice without truth is a shaky proposition," she added, "and scientific questions can never be settled by the advocacy process. This way lies madness."

Expert witness nearly always fall into three categories: medical, engineering, and commercial. Controversy most often attaches to medical experts.

Professor Joseph Sanders, JD, of the University of Houston Law Center, said that in toxic tort cases, a plaintiff must prove the defendant had a duty to the plaintiff; that the defendant breached this duty; that the plaintiff suffered damage; and that the defendant’s breach of duty caused the damage. Issues of science most often arise in the attempt to prove the last of these four elements.

Significant legal decisions have turned on scientific evidence, or a lack of it, regarding the toxicity or carcinogenicity of such substances as asbestos, silica, Agent Orange, vinyl chloride, and benzene, and the relationship of the Dalkon Shield intrauterine device with uterine infection and the link between high-absorbency tampons and toxic shock syndrome. The most prominent example now before the courts is whether silicon gel breast implants cause immune system illnesses, abnormal tissue growth, chronic pain, and other disorders (see box below).

Bernard D. Goldstein, MD, director of the Environmental and Occupational Health Sciences Institute at Rutgers University and the University of Medicine and Dentistry of New Jersey, said that the scientific community knows how to reach a consensus on issues but not how to get a consensus opinion before a court.

Opinion on most scientific issues will form a bell-shaped curve, he noted, and lawyers for one side will seek expert witnesses from one extreme end of this opinion curve, knowing that the opposing attorneys will draw their witnesses from the other extreme.

Dr. Goldstein and Dr. Angell argued for the use of neutral experts to advise judges on complex and contentious issues of science. The role of such experts is essentially to educate the judge in the technical aspects and help the jurists sort through the science of the arguments and challenges raised by opposing attorneys.

Joe S. Cecil, JD, PhD, follows this issue for the Federal Judicial Center, which does research for the federal court system. "When we began in 1990, we found far more published articles calling for court-appointed experts than we could find actual instances of court-appointed experts," he said.

Federal evidentiary rules do allow judges to appoint their own expert panels, but examples of such appointments are rare, although they are increasing somewhat, Dr. Cecil added.

The reluctance of judges to utilize this approach stems from several factors, as Supreme Court Justice Stephen Breyer noted in a separate talk at the AAAS meeting. These include an unfamiliarity with the process, and concerns about the approach itself, the questions it poses, whether an expert panel deprives attorneys of control over presenting their cases, and whether it improperly intrudes upon the proper function of the jury. Finally, as Justice Breyer asked, "Where is one to find a truly neutral expert?"

Clearly, when expert panels are used, they are heeded by judges. In 56 of 58 cases studied by Dr. Cecil, the court’s ruling followed the thrust of the expert panel’s findings.

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