The journal Legal Newsline recently reported efforts to stiffen federal court standards for expert testimony and those judges who slack in their duty to assess the qualifications of professional witnesses’ and the testimony they propose to give under oath.
Supporters of tightening the rule allege that many judges shirk their duty as gatekeepers and allow dubious expert testimony that juries aren’t equipped to judge.
The Legal Newsline article reports that a judge’s allowance of shaky scientific evidence in the notorious Roundup weedkiller litigation is costing Bayer billions of dollars.
Author Daniel Fisher reported May 17: “In Roundup litigation ... judges have allowed medical experts to tell jurors they are certain plaintiffs contracted non-Hodgkin’s lymphoma from exposure to the weedkiller, even though the plaintiffs have multiple other risk factors, and the cause of the cancer is unknown in 75 percent of cases.”
Under the proposed new rules, judges would be required to determine expert witnesses’ qualifications and whether the witness used reliable scientific methods to arrive at their conclusion. Thus, jurors would never hear dubious expert witness testimony.
If expert witnesses come under increased scrutiny, many cases may not even pass muster to go to trial; dismissed by judges’ summary judgment.
Lee Mickus, who represents clients facing litigation involving expert testimony, said: “The amendments really reflect what courts should have been doing all along,”
One hopes that the U.S. Supreme Court will approve recommended changes and that they will be passed into law by Congress.
The Legal Newsline article caught my attention because I have a little experience with expert witness testimony; experiences that beg that expert witnesses and the lawyers who hire them, should be reined in.
As a reporter for the Tri-City Herald half a century or so ago, I covered two vehicular homicide trials; one in Benton County Superior Court and one in Franklin County Superior Court. In Washington vehicular homicide is defined by causing someone’s death while driving under the influence, in a reckless manner, or with disregard for the safety of others.
Both trials addressed the speed at which the vehicle was being driven at the time of the accident. A Washington State University engineer gave expert testimony in both cases: for the prosecution in one case and for the defense in the other.
I don’t remember how the juries decided either case, but the expert witnesses’ testimony remains a flashing red light in my five decades old memory.
Expert testimony was necessary to establish, among other things, whether excessive speed was involved.
In one trial the engineer testified that the speed of the vehicle could be accurately established by skid marks and how far the vehicle was airborne. In the other trial, the same engineer testified that the speed couldn’t be thus established.
This may be something of a simplification, but it’s the nut of the cases.
My conclusion from this experience was that if ever I served on a jury, I wouldn’t believe a word from an “expert” witness.
Judges let both witnesses and the attorneys who hire them lie through their teeth with impunity. Sadly, our legal system is less about justice than about winning cases.
It’s long past time that we put an end to such disgraceful fraud.
Day is a retired Washington State faculty member and a Pullman resident since 1972. He encourages email — pro and con — to terence@moscow.com.
