Sunday, October 12, 2008

How Do Courts Evaluate So-Called Expert Witnesses?


The Cool Justice Report
Oct. 12, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Typically, jurors think of experts as highly educated with complex technical expertise. In most instances that is correct; but not in all cases.

To qualify to give an "expert" opinion, the witness need only possess more knowledge about a given subject than the average juror. In the Joe Pesci comedy, My Cousin Vinny, Marisa Tomei plays the Brooklyn born girlfriend of Pesci who accompanies him to Alabama to defend his cousin for a murder. Tomei is the daughter of a mechanic, raised in a garage, and is offered as an expert in general automotive science to prove that the car driven by the murderer could not have been Vinny's cousin's.

Although a comical rendition, this can occur in a courtroom. Sometimes, the "blue collar" expert, relates better to the jury.

Before seeking the "expert's" opinion, an attorney must lay a foundation by eliciting the witness' qualifications, education, training, and experience. The lawyer will focus the expert on the facts of the case at hand and eventually seek an opinion. Often, opposing counsel objects to the witness's qualifications.

In a wrongful death case involving a collision between my client's motorcycle and a truck pulling a horse trailer, the defense hired an engineer with a doctorate in mechanical engineering. His opinion was that the bike caused the collision because of excessive speed. A thorough exploration of his background revealed that he had no formal training in accident reconstruction but rather has concentrated his teaching career in nuclear design. The witness presented an authoritative manner, but in reality knows little more than the average person on the issue of motorcycle collisions. The defense countered that formal training in the field of accident reconstruction isn't necessary and that any issue in that regard goes to the weight the jury should assign to the testimony.

Certain types of cases require expert opinion. For example, in this state a lawyer may not institute a medical malpractice case without possessing a report from a similarly trained expert that details the specific violations of the medical standards of care. In addition, to qualify to testify in a malpractice case that expert has to possess credentials similar to those of the defendant health care provider, and must have either practiced or taught in that field within five years of the alleged malpractice.

Courts will not allow an expert to give an opinion on what is described as the "ultimate facts in issue." The danger in allowing the expert to go that far is that the jury will not make an independent assessment of the expert opinion but will rather blindly accept it, and feel bound to take the opinion as fact. There is a distinction.

Jurors are instructed that they are not bound to accept an expert's opinion regardless of how qualified the expert is or how authoritative the expert appears to be. Even if they have little knowledge of the complex subject, jurors are free to reject an expert's opinion.

A danger trial lawyers face in presenting complex scientific evidence is avoiding allowing the case to become an esoteric debate between competing experts. When the debate becomes highly technical the risk is that jurors will simply turn off to the discussion and decide the case on other grounds, or ignore the expert debate altogether.

A skill that trial lawyers develop is the ability to understand the science of a case and lay it out in a common sense, layman's approach to guide the jury.

For example:

A patient consults with a periodontist, a dental expert ingum and bone grafting.The doctor decides to deliver a bone graft to a large deficit in the patient's jaw in order to give her the proper foundation for an implant supported bridge. He extracts the patient's blood and places that into a centrifuge and reduces it through this process to a substance known as PRP, platelet rich plasma.

In theory, PRP from the patient's blood will stimulate the integration of the bone graft with the patient's own bone and promote faster healing. While the scientific literature supports the use of PRP in aid of bone grafts, the lawyer learns that this doctor deviated from the traditional, scientifically accepted steps that follow.

Instead of harvesting a piece of bone from the patient or using a piece of cadaverbone, this doctor creates a paste combining the PRP with artificial bone crystals.

He put that mush into the bony defect and covered it with a wire mesh. He then inserted a titanium implant through the mesh into the mush and barely into the underlying bone. The result was disaster.

The paste never congealed and bonded with the underlying bone. Eventually the graft and the implant failed and a major lawsuit ensued.

The science of harvesting PRPis technical and difficult to understand. The trial lawyer had to break down the misadventure into parts that could be attacked singly. In the instance of the reduction of PRP, attacking the doctor would have allowed the doctor to expound in a professorial fashion about a subject he knew and the lawyer could not assail. This approach would give the doctor credibility.

When the doctor began to explain his "junk" science, the jurors would filter that through the prism of expertise he had demonstrated on the PRP reduction. His junk science would become more believable.

Instead, the trial lawyer went to the heart of the issue: using the paste and wire mesh and immediately placing an implant. Careful study of the prevailing literature on bone grafts and implants, coupled with in-depth discussions with the plaintiff's consulting expert, armed the lawyer with a series of questions that allowed him to explain the subsequent steps of the process in simple terms and gain the doctor's assent to each step. From that, confronting the doctor with the literature that lawyer was able to get the doctor to admit that what he had attempted and not been done before or approved by mainstream periodontics.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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