The Dallas Morning News, Copyright 1988
Wednesday, April 6, 1988

WHERE EXPERTS RULE:  
Complex court cases make such testimony almost a must

by Gayle Golden

 

Guy Gray used to watch weather for the U.S. government. From

weather station outposts in the Midwest, Gray worked diligently for

his modest government salary -- dutifully noting temperature drops,

collecting rainfall, gauging wind shifts and sometimes tracking a

thunderstorm or two.

   Then he retired. And he started earning $80 an hour.

 

   The switch was simple, Gray said: He just packaged his experience

and began selling himself to lawyers as an expert witness on weather.

Now neither snow nor rain nor heat nor gloom of night keeps Gray from

delivering his testimony -- on behalf of "whoever gets a call to me

first,' he said.

 

   Gray's career move has been repeated by thousands seeking to cash

in on a legal trend that has grown significantly over the past

decade: As the scientific complexity of legal cases has increased,

and as federal and state courts have modified the rules of evidence,

the use of expert testimony has mushroomed.

 

   Today, lawyers agree that few court cases can be tried, or even

prepared, without at least one expert witness. For fees that can

reach $3,000 a day, experts address a range of questions, from

economic trends to welding flaws to warning labels, sex offenses,

folkloric anthropology, industrial espionage or even pay TV.

 

   Judges, lawyers and legal scholars say hired expertise is often

essential in certain cases, notably product liability and

environmental disputes. But most also agree that expert testimony

can confuse as much as it clarifies.

 

   "You cannot try cases today without the use of expert testimony,'

said Fredric Lederer, a professor at the Marshall-Wythe School of Law

at the College of William and Mary in Williamsburg, Va. "Everyone

who's involved in the process is concerned that it is, at best,

awkward.'

 

   U.S. Judge Jack B. Weinstein of New York's Eastern District says

expert testimony is more than just awkward. At times, he says, it

can be blatantly deceptive.

 

   "I've had cases where the expert witnesses were terrible,'

Weinstein said recently in an interview. "They didn't know what they

were talking about, or they lied.  . . . If I had a medical doctor

who gave me that kind of thing, I would report him to the state.'

 

   Experts have been testifying in America since at least 1665, when

records show that a "Dr. Brown' testified in a colonial heresy trial

that the victims had been bewitched by the defendant.

 

   But until recently, the use of experts had been limited by U.S.

and state courts, under the rule that witnesses could testify only

about the facts of the case -- not about what they had read, heard or

experienced. The rationale was that opinion testimony was generally

prejudicial or hearsay.

 

   In 1975, with the adoption of the Federal Rules of Evidence,

courts began loosening that restriction. Now most courts admit

expert opinion into the record so long as it helps the jurors or

judge understand matters outside their experience and helps

illuminate the case's facts more than it prejudices.

 Big business

 

  No one can precisely show the growth of expert testimony over the

past decade. But the establishment of various "expert witness

services,' which provide the witnesses for a fee, indicates that

expert testimony has become big business.

 

   A decade ago, Maureen Roy was a homemaker in Peoria Heights,

Ill., in need of a job. So in 1979, she cashed in on the expert

trend and formed Expert Resources Inc. She  provides experts who can

testify about such topics as animal behavior, oil-rig accidents and

architectural climatology, which is the study of how buildings

influence the wind or the ice over city streets.

 

   "Lawyers aren't just hiring experts because it's the thing to

do,' Ms. Roy said. "They're hiring them because they'll let their

client down if they don't have medical or scientific experts.'

 

    Ms. Roy won't reveal the number of experts she has on file. But

Gary Melickian, general manager of the Expert Witness Network in

Washington, D.C., said he has about 900 experts available. Betty

Lipscher features 10 times that number in her directory published

through the National Forensic Center in Lawrenceville, N.J.

 

   Not that the job of an expert witness appeals to everyone.

Scientists in particular don't relish the heat of cross-examination,

where defense lawyers may try to distort the results of studies or

challenge credentials.

 

   "You're put into an impossible situation,' said Frank Oeschli, an

epidemiologist at the University of California at Berkeley's School

of Public Health. Oeschli says he refuses all requests to testify

about studies he's conducted on the possible causes of birth defects.

 

 

   "The court proceeds with the theory that if something happened,

somebody must be able to put a cause on it,' Oeschli said. "That

ain't the way science works.'

 

   For those who like the job -- including, presumably, the

thousands listed in various expert witness services -- the incentives

are clear. For some, it's the thrill of brushing with the legal

system. For others, it's a public service or a way to stay active

after retirement.

 

   And for many, it's a matter of money. The lowest-paid expert

witness earns about $60 an hour; others say they draw up to $3,000

for a single day in court.

 

   Immunologist Alan S. Levin has spent considerable time away from

his San Francisco practice testifying on behalf of plaintiffs who

claim their health was harmed by exposure to toxic chemicals. Levin

charges $500 an hour.

 

   During one recent case, Levin spent five hours writing a report

and three working days reading it into the court record -- for a

total bill of $14,500.

 

   As a self-declared social activist, Levin said his fees serve a

loftier purpose than boosting his bank balance.

 

   "I am charging a large amount of money so the stockholders will

take note that this (toxic tort) litigation is costing a lot of

money,' he said. "I would like to earn an honest living, but . . .

the only way to get these people's attention is through money.'

 

    Francis H. Carr Jr., of Melrose, Mass., says money isn't the

main reason he has become one of the country's few experts for

plaintiffs in snow-related accidents. After retiring from 16 years

as chief of snow and ice control for the Massachusetts Department of

Public Works, Carr says he consults lawyers and testifies -- for $60

per hour and $600 per court day -- chiefly because it stimulates him

intellectually.

 

   "The money is good, but I wouldn't take on more than I could

handle just for the money,' Carr said.

 

Arcane to mundane  

  Only a minority of experts end up on a witness stand. Most expert

testimony appears in voluminous pretrial depositions for civil

litigation that is often settled before trial. And the areas of

expertise in these cases can be as arcane as "astronomical imaging

with solid state detectors' or as mundane as "pet food additives.'

 

   But not all expert testimony is tedious. And though the use of

experts today can't always compare with the drama of Dr. Brown's 17th

century bewitching claim, it can make or break a complicated case.

 

   In Dallas, expert testimony was the cornerstone of a $20 million

settlement in 1985 for 370 children who suffered brain damage after

exposure to lead emissions from the West Dallas RSR Corp. smelter

during the late 1960s and early 1970s. A team of scientists, hired

by the attorney who filed the lawsuit, concluded that the smelter's

"staggering' lead emissions had "systematically poisoned' the

children living nearby.

 

   "Without the background work and the studies of the expert

witnesses we would not have been able to establish a causative link

(between the lead and the brain damage),' said Frederick M. Baron,

the plaintiffs' attorney. "It was the entire case.'

 

   Yet even when experts are highly qualified, their liberal use can

burden the legal system, said Irving Younger, a former New York state

trial judge and now a professor at the University of Minnesota Law

School.

 

   "All you do, at best, is to lengthen the trial and make it more

expensive than it has to be,' Younger said. "Or, at worst, you turn

it into this morass that nobody can understand.'

 

   One Massachusetts state judge recalls his "total confusion' over

an employee discrimination case, in which the plaintiff had been

fired for alleged incompetence from his job as a computer programmer.

Experts on computers were called to prove the plaintiff's programming

skills were competent, right down to his subroutines, his modular

procedures and the elegance of his algorithms.

 

   "I don't think there was a single soul in the courtroom who had

any idea of what they (the experts) were talking about,' the judge

said. The case was settled out of court after three days.

 Limiting testimony

 

  Attempts to limit expert testimony have aimed mostly at experts'

fees. The Maryland  Legislature has adopted rules prohibiting

experts in malpractice cases from earning more than 20 percent of

their annual income from court appearances. In June, the U.S.

Supreme Court ruled that expert witness fees exceeding $30 per day

could not be shifted to the losing party in federal cases -- a

decision bound to affect expert testimony in other federal suits,

lawyers say.

 

   But even critics of expert testimony say these measures won't

discourage lawyers from using experts. And others argue that experts

are necessary.

 

   Lederer of William and Mary agrees that expert testimony has made

civil litigation more expensive and, at times, more confusing. "But

it's also unavoidable,' he said.

 

   "True, we're probably calling experts when we shouldn't, and

we're probably calling more experts than we ought to,' he said. "But

how can you deal with asbestos without having expert testimony? It's

almost impossible.'

 

    While recognizing this necessity, judges, scientists and legal

scholars have expressed concern that some experts may not be

qualified to testify, or may not testify truthfully.

 

   "You can buy an expert on any side of any issue for the right

price,' said Michael Baram, a health law professor at Boston

University Law School, who is studying how science is used in the

courtroom.

 

   "The courts have been flooded with a lot of evidence that is

apparently not clearly relevant or conclusive,' Baram said. "They

(judges) generally allow in a lot of this stuff, but they're troubled

by it.'

 

   U.S. Judge Weinstein, for instance, drew national attention to

the use of expert testimony in 1985, when he overruled testimony from

experts on behalf of veterans who had rejected the government's

settlement to veterans who handled the chemical Agent Orange during

the Vietnam War.

 

   In one such claim, Weinstein refused to admit testimony from Dr.

Bertram W. Carnow, a physician who said a veteran's cancer and heart

disease stemmed from exposure to the defoliant. Carnow had never

examined the plaintiff, but had "relied almost exclusively on hearsay

information,' Weinstein wrote in his opinion.

 

   Carnow also sparked controversy in the case for his opening

comment to lawyers who took his deposition: "I have just one

statement,' he said. "I'd like to know who is going to take care of

my fees in this case.'

 

   Those who have spent their lives testifying in court agree that

expert testimony has its share of the questionably qualified. That's

often because courts are not always picky about who they call an

expert.

 

   The court can declare anyone an expert witness who establishes he

knows more about the subject than the jury. Under that standard, a

family doctor who treats all kinds of maladies may well qualify as an

expert witness on bone injuries or even cancer -- although physicians

wouldn't consider him an expert in those fields.

 

   "There are a lot of people testifying as expert witnesses who

really should not be,' said Irving Stone, chief of the physical

evidence section of the Dallas County Institute of Forensic Sciences'

Criminal Investigation Laboratory.

 

   "I have testified in cases where I know the person on the other

side is either lying or he's stupid,' Stone said. "More often, he'll

say what needs to be said for the dollar.'

 Weeded out

 

  Sometimes bogus experts get weeded out of the system.

 

   Earlier this year, for instance, a man who had served as a

finance expert witness in several lawsuits against brokerage firms

agreed to plead guilty to one of seven possible counts of giving

false testimony under oath during a deposition. The expert, Thomas

Nix of Florence, Ala., testified that he had bachelor's degrees in

finance from the University of Alabama and in accounting from

Columbia University in New York. He also said he worked for the

International Investment Group, Lloyd's of London and St. Paul Fire

and Marine Insurance Co.

 

   Nix actually dropped out of the University of Alabama after three

years of engineering studies, and never worked for those firms.

Columbia University has no record of his enrollment.

 

   "Yes, he fabricated some of his qualifications,' said Nix's

lawyer, William J. Sheaffer of Orlando. "But his work product was

absolutely impeccable.  . . . I think he felt he needed to puff up

his credentials in order to match it.'

 

   When asked whether Nix planned to continue his career as an

expert witness, Sheaffer said no. "His days of testifying are

probably over,' he said.

 

   To critics of expert testimony, Nix's case is one indication that

judges need to be more vigilant about admitting expert testimony, and

that professional groups should police questionable experts.

 

   "Many of them (expert witnesses) are academics,' Weinstein said.

"And I've told them their peers ought to criticize their testimony in

the same way they criticize an academic article.'

 

   So far, professional organizations have looked the other way,

according to a 1983 study conducted for the National Center for State

Courts.

 

   In a survey of ethics committees from groups such as the National

Society of Professional Engineers, the American Academy of Forensic

Science and the American Medical Association, the study found that

"virtually no actions had been taken against members who had

misrepresented the field's knowledge or drawn insupportable

conclusions on behalf of one party as expert witnesses.'

   Weinstein, for one, said those organizations haven't become any

more vigilant.

 

   Meanwhile, some judges have begun taking action. Several

decisions have challenged spurious expert testimony during the past

three years, said Sheila Jasanoff, director of the Environmental Law

and Policy Program at Cornell University in Ithaca, N.Y., who is

writing a book on science and the courts.

 

   "There are some cases where there's a kind of probing of experts

by judges that would have been quite shocking earlier,' she said.

 

 

   In a 1986 ruling, for instance, the 5th U.S. Circuit Court of

Appeals in New Orleans deemed an economist's testimony "too

speculative' and reversed a jury award of $3.6 million to three

children whose parents were killed in the 1982 crash of a Pan

American World Airways jet in Kenner, La.

 

   The economist testified that the couple's death had deprived

their children of nearly $1.8 million in prospective inheritance --

assuming that the father's salary would have increased by 8 percent

yearly, that the family would have paid only 5 percent in annual

income taxes and that the parents would have had no financial

setbacks or health problems.

 

   Judge Patrick E. Higginbotham, writing for the court, found the

economist's estimate "to be completely airborne' and "without basis

in the real world.'

 

   "Our message to our able trial colleagues,' Higginbotham wrote,

is that "it is time to take hold of expert testimony in federal

trials.'