Dallas Morning News, Copyright
Wednesday, April 6, 1988
Complex court cases make such testimony almost a must
Gray used to watch weather for the U.S. government. From
station outposts in the Midwest, Gray worked diligently for
modest government salary -- dutifully noting temperature drops,
rainfall, gauging wind shifts and sometimes tracking a
Then he retired. And he started earning $80 an hour.
The switch was simple, Gray said: He just packaged his experience
began selling himself to lawyers as an expert witness on weather.
neither snow nor rain nor heat nor gloom of night keeps Gray from
his testimony -- on behalf of "whoever gets a call to me
Gray's career move has been repeated by thousands seeking to cash
on a legal trend that has grown significantly over the past
As the scientific complexity of legal cases has increased,
as federal and state courts have modified the rules of evidence,
use of expert testimony has mushroomed.
Today, lawyers agree that few court cases can be tried, or even
without at least one expert witness. For fees that can
$3,000 a day, experts address a range of questions, from
trends to welding flaws to warning labels, sex offenses,
anthropology, industrial espionage or even pay TV.
Judges, lawyers and legal scholars say hired expertise is often
in certain cases, notably product liability and
disputes. But most also agree that expert testimony
confuse as much as it clarifies.
"You cannot try cases today without the use of expert testimony,'
Fredric Lederer, a professor at the Marshall-Wythe School of Law
the College of William and Mary in Williamsburg, Va. "Everyone
involved in the process is concerned that it is, at best,
U.S. Judge Jack B. Weinstein of New York's Eastern District says
testimony is more than just awkward. At times, he says, it
be blatantly deceptive.
"I've had cases where the expert witnesses were terrible,'
said recently in an interview. "They didn't know what they
talking about, or they lied. . . .
If I had a medical doctor
gave me that kind of thing, I would report him to the state.'
Experts have been testifying in America since at least 1665, when
show that a "Dr. Brown' testified in a colonial heresy trial
the victims had been bewitched by the defendant.
But until recently, the use of experts had been limited by U.S.
state courts, under the rule that witnesses could testify only
the facts of the case -- not about what they had read, heard or
The rationale was that opinion testimony was generally
In 1975, with the adoption of the Federal Rules of Evidence,
began loosening that restriction. Now most courts admit
opinion into the record so long as it helps the jurors or
understand matters outside their experience and helps
the case's facts more than it prejudices.
No one can precisely show the growth of expert testimony over the
decade. But the establishment of various "expert witness
which provide the witnesses for a fee, indicates that
testimony has become big business.
A decade ago, Maureen Roy was a homemaker in Peoria Heights,
in need of a job. So in 1979, she cashed in on the expert
and formed Expert Resources Inc. She provides
experts who can
about such topics as animal behavior, oil-rig accidents and
climatology, which is the study of how buildings
the wind or the ice over city streets.
"Lawyers aren't just hiring experts because it's the thing to
Ms. Roy said. "They're hiring them because they'll let their
down if they don't have medical or scientific experts.'
Ms. Roy won't reveal the number of experts she has on file. But
Melickian, general manager of the Expert Witness Network in
D.C., said he has about 900 experts available. Betty
features 10 times that number in her directory published
the National Forensic Center in Lawrenceville, N.J.
Not that the job of an expert witness appeals to everyone.
in particular don't relish the heat of cross-examination,
defense lawyers may try to distort the results of studies or
"You're put into an impossible situation,' said Frank Oeschli, an
at the University of California at Berkeley's School
Public Health. Oeschli says he refuses all requests to testify
studies he's conducted on the possible causes of birth defects.
"The court proceeds with the theory that if something happened,
must be able to put a cause on it,' Oeschli said. "That
the way science works.'
For those who like the job -- including, presumably, the
listed in various expert witness services -- the incentives
clear. For some, it's the thrill of brushing with the legal
For others, it's a public service or a way to stay active
And for many, it's a matter of money. The lowest-paid expert
earns about $60 an hour; others say they draw up to $3,000
a single day in court.
Immunologist Alan S. Levin has spent considerable time away from
San Francisco practice testifying on behalf of plaintiffs who
their health was harmed by exposure to toxic chemicals. Levin
$500 an hour.
During one recent case, Levin spent five hours writing a report
three working days reading it into the court record -- for a
bill of $14,500.
As a self-declared social activist, Levin said his fees serve a
purpose than boosting his bank balance.
"I am charging a large amount of money so the stockholders will
note that this (toxic tort) litigation is costing a lot of
he said. "I would like to earn an honest living, but . . .
only way to get these people's attention is through money.'
Francis H. Carr Jr., of Melrose, Mass., says money isn't the
reason he has become one of the country's few experts for
in snow-related accidents. After retiring from 16 years
chief of snow and ice control for the Massachusetts Department of
Works, Carr says he consults lawyers and testifies -- for $60
hour and $600 per court day -- chiefly because it stimulates him
"The money is good, but I wouldn't take on more than I could
just for the money,' Carr said.
Only a minority of experts end up on a witness stand. Most expert
appears in voluminous pretrial depositions for civil
that is often settled before trial. And the areas of
in these cases can be as arcane as "astronomical imaging
solid state detectors' or as mundane as "pet food additives.'
But not all expert testimony is tedious. And though the use of
today can't always compare with the drama of Dr. Brown's 17th
bewitching claim, it can make or break a complicated case.
In Dallas, expert testimony was the cornerstone of a $20 million
in 1985 for 370 children who suffered brain damage after
to lead emissions from the West Dallas RSR Corp. smelter
the late 1960s and early 1970s. A team of scientists, hired
the attorney who filed the lawsuit, concluded that the smelter's
lead emissions had "systematically poisoned' the
"Without the background work and the studies of the expert
we would not have been able to establish a causative link
the lead and the brain damage),' said Frederick M. Baron,
plaintiffs' attorney. "It was the entire case.'
Yet even when experts are highly qualified, their liberal use can
the legal system, said Irving Younger, a former New York state
judge and now a professor at the University of Minnesota Law
"All you do, at best, is to lengthen the trial and make it more
than it has to be,' Younger said. "Or, at worst, you turn
into this morass that nobody can understand.'
One Massachusetts state judge recalls his "total confusion' over
employee discrimination case, in which the plaintiff had been
for alleged incompetence from his job as a computer programmer.
on computers were called to prove the plaintiff's programming
were competent, right down to his subroutines, his modular
and the elegance of his algorithms.
"I don't think there was a single soul in the courtroom who had
idea of what they (the experts) were talking about,' the judge
The case was settled out of court after three days.
Attempts to limit expert testimony have aimed mostly at experts'
The Maryland Legislature has
adopted rules prohibiting
in malpractice cases from earning more than 20 percent of
annual income from court appearances. In June, the U.S.
Court ruled that expert witness fees exceeding $30 per day
not be shifted to the losing party in federal cases -- a
bound to affect expert testimony in other federal suits,
But even critics of expert testimony say these measures won't
lawyers from using experts. And others argue that experts
Lederer of William and Mary agrees that expert testimony has made
litigation more expensive and, at times, more confusing. "But
also unavoidable,' he said.
"True, we're probably calling experts when we shouldn't, and
probably calling more experts than we ought to,' he said. "But
can you deal with asbestos without having expert testimony? It's
While recognizing this necessity, judges, scientists and legal
have expressed concern that some experts may not be
to testify, or may not testify truthfully.
"You can buy an expert on any side of any issue for the right
said Michael Baram, a health law professor at Boston
Law School, who is studying how science is used in the
"The courts have been flooded with a lot of evidence that is
not clearly relevant or conclusive,' Baram said. "They
generally allow in a lot of this stuff, but they're troubled
U.S. Judge Weinstein, for instance, drew national attention to
use of expert testimony in 1985, when he overruled testimony from
on behalf of veterans who had rejected the government's
to veterans who handled the chemical Agent Orange during
In one such claim, Weinstein refused to admit testimony from Dr.
W. Carnow, a physician who said a veteran's cancer and heart
stemmed from exposure to the defoliant. Carnow had never
the plaintiff, but had "relied almost exclusively on hearsay
Weinstein wrote in his opinion.
Carnow also sparked controversy in the case for his opening
to lawyers who took his deposition: "I have just one
he said. "I'd like to know who is going to take care of
fees in this case.'
Those who have spent their lives testifying in court agree that
testimony has its share of the questionably qualified. That's
because courts are not always picky about who they call an
The court can declare anyone an expert witness who establishes he
more about the subject than the jury. Under that standard, a
doctor who treats all kinds of maladies may well qualify as an
witness on bone injuries or even cancer -- although physicians
consider him an expert in those fields.
"There are a lot of people testifying as expert witnesses who
should not be,' said Irving Stone, chief of the physical
section of the Dallas County Institute of Forensic Sciences'
"I have testified in cases where I know the person on the other
is either lying or he's stupid,' Stone said. "More often, he'll
what needs to be said for the dollar.'
Sometimes bogus experts get weeded out of the system.
Earlier this year, for instance, a man who had served as a
expert witness in several lawsuits against brokerage firms
to plead guilty to one of seven possible counts of giving
testimony under oath during a deposition. The expert, Thomas
of Florence, Ala., testified that he had bachelor's degrees in
from the University of Alabama and in accounting from
University in New York. He also said he worked for the
Investment Group, Lloyd's of London and St. Paul Fire
Marine Insurance Co.
Nix actually dropped out of the University of Alabama after three
of engineering studies, and never worked for those firms.
University has no record of his enrollment.
"Yes, he fabricated some of his qualifications,' said Nix's
William J. Sheaffer of Orlando. "But his work product was
impeccable. . . . I think he felt
he needed to puff up
credentials in order to match it.'
When asked whether Nix planned to continue his career as an
witness, Sheaffer said no. "His days of testifying are
over,' he said.
To critics of expert testimony, Nix's case is one indication that
need to be more vigilant about admitting expert testimony, and
professional groups should police questionable experts.
"Many of them (expert witnesses) are academics,' Weinstein said.
I've told them their peers ought to criticize their testimony in
same way they criticize an academic article.'
So far, professional organizations have looked the other way,
to a 1983 study conducted for the National Center for State
In a survey of ethics committees from groups such as the National
of Professional Engineers, the American Academy of Forensic
and the American Medical Association, the study found that
no actions had been taken against members who had
the field's knowledge or drawn insupportable
on behalf of one party as expert witnesses.'
Weinstein, for one, said those organizations haven't become any
Meanwhile, some judges have begun taking action. Several
have challenged spurious expert testimony during the past
years, said Sheila Jasanoff, director of the Environmental Law
Policy Program at Cornell University in Ithaca, N.Y., who is
a book on science and the courts.
"There are some cases where there's a kind of probing of experts
judges that would have been quite shocking earlier,' she said.
In a 1986 ruling, for instance, the 5th U.S. Circuit Court of
in New Orleans deemed an economist's testimony "too
and reversed a jury award of $3.6 million to three
whose parents were killed in the 1982 crash of a Pan
World Airways jet in Kenner, La.
The economist testified that the couple's death had deprived
children of nearly $1.8
million in prospective inheritance --
that the father's salary would have increased by 8 percent
that the family would have paid only 5 percent in annual
taxes and that the parents would have had no financial
or health problems.
Judge Patrick E. Higginbotham, writing for the court, found the
estimate "to be completely airborne' and "without basis
the real world.'
"Our message to our able trial colleagues,' Higginbotham wrote,
that "it is time to take hold of expert testimony in federal