Expert witness ethics

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1539-1584

  Sanders, Joseph ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 39449105741     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (238)

1. Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1178.
2. Seeking the truth is certainly not the only goal of the justice system. Other things matter as well, including a sense of procedural justice on the part of the parties and perhaps the civics education received by those who serve on juries. But ascertaining the truth is the first virtue of a justice system. See Susan Haack, Inquiry and Advocacy, Fallibilism and Finality: Culture and Inference in Science and the Law, 2 Law Probability & Risk 205, 212 (2003).
3. 526 U.S. 137, 152 (1999).
4. As the remarks that follow indicate, this essay assumes that the case is being tried to a lay jury. Some of what I have to say would also apply to cases tried to a judge.
5. Alvin I. Goldman, Knowledge in a Social World 4-9 (1999); Mike Redmayne, Rationality, Naturalism, and Evidence Law, 2003 Mich. St. L. Rev. 849, 854.
6. Fed. R. Evid. 102 ("These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.").
7. D. Michael Risinger & Michael J. Saks, Rationality, Research and Leviathan: Law Enforcement-Sponsored Research and the Criminal Process, 2003 Mich. St. L. Rev. 1023, 1024.
8. Id.
9. Id.
10. Id.
11. Michael Williams, Problems of Knowledge: A Critical Introduction to Epistemology 16-19 (2001). In a famous paper, Edmund Gettier raises the question of whether these three conditions are sufficient for knowledge. Here is an example of the type of problem Gettier poses: I have been looking at the same clock in my office for several years and it has always been reliable. I glance up and see that it is 9 a.m. and believe this to be true. In fact it is 9 a.m. but unknown to me the clock stopped exactly twelve hours ago at 9 p.m. I believe it is 9 a.m.; it is 9 a.m.; and I am justified in my belief and yet most would feel that somehow I do not know it is 9 a.m. One solution to the Gettier problem is to toss out the justification requirement altogether. This leads to so-called externalist approaches that attempt to sidestep the problematic relationship between beliefs and justification. "Reliabilism" is one such approach which defines knowledge as something derived from a reliable process. My belief counts as knowledge if it is arrived at through a reliable process even if I, myself, do not and perhaps could not justify my belief, i.e., I do not have good grounds for my belief. There is no reason, of course, why we must adopt a purely externalist or a purely internalist perspective on knowledge. We can accept that justification plays an important role in our definition of knowledge and also attempt to employ the most reliable procedures when searching for knowledge. In some ways, this essay treads this middle path.
12. See, e.g., Richard Swinburne, Epistemic Justification (2001).
13. Williams, supra note 11, at 20 (emphasis omitted).
14. Id. at 25;
15. see also John Pollock, Epistemic Norms, in Epistemology: An Anthology 192 (Ernest Sosa & Jaegwon Kim eds., 2000).
16. One version of the skeptic's challenge is this: When we consider a belief and ask how it is justified we are typically led to another belief that supports the first belief. When we ask about the justification for this belief we may be led to still another belief and so forth. How long can this go on? There seem to be three possibilities: the chain of beliefs goes on forever, the chain circles back on itself, or the chain of beliefs stops. See Williams, supra note 11, at 62. Foundationalism answers the question posed above by saying justification stops with a set of "basic beliefs" that themselves do not rely on their logical or evidential relations to other beliefs for their justification. The primary candidates for such beliefs are direct sensory perceptions. See Michael R. DePaul, Preface to Resurrecting Old-Fashioned Foundationalism, at vii (Michael R. DePaul ed., 2001). Coherence perspectives come closer to adopting the second answer to the question. Beliefs are justified by the network of other beliefs in which they are embedded. Williams argues that these views are holistic in the sense that justification of individual beliefs depends on the properties of the total belief system. Williams, supra note 11, at 117. Coherency is generally thought to be an indicia of knowledge, but this perspective must deal with the fact that pseudosciences such as astrology often present a complex set of coherent beliefs. Susan Haack has proposed a combination of foundational and coherence perspectives she calls "foundherentism." See Susan Haack, Evidence and Inquiry 73-94 (1993). Disputes about the relative merits of these and other approaches consume a good deal of epistemological writing.
17. Frederick Pollock, The Law of Torts 25 (New York, Banks & Brothers 1895).
18. See generally David S. Caudill, Ethnography and the Idealized Accounts of Science in Law, 39 San Diego L. Rev. 269 (2002).
19. Professor Brian Leiter calls this form of skepticism the "flesh and blood argument." As to this argument, Leiter notes, Even if we are situated - as no one denies - it may still be possible to have objective knowledge of a strongly objective world. This is precisely what post-Kuhnian and post-Quinean philosophers like Richard Boyd, Philip Kitcher, and Peter Railton have been arguing for the last twenty years. Perhaps they are wrong. But if they are, it is not because they do not recognize the banal fact that we are "situated"; rather, it is because their arguments for how we overcome the limits of our situation are wrong. Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 267, 286 n.93 (1997). For a flavor of the arguments of these philosophers, see Richard Boyd, Uncivil Society: The Perils of Pluralism and the Making of Modem Liberalism (2004); Philip Kitchner, The Advancement of Science: Science Without Legend, Objectivity Without Illusions (1993).
20. Keith DeRose, Solving the Skeptical Problem, in Epistemology: An Anthology, supra note 14, at 482;
21. David Lewis, Elusive Knowledge, in Epistemology: An Anthology, supra note 14, at 503;
22. Michael Williams, Epistemological Realism, in Epistemology: An Anthology supra note 14, at 536. Cranor advocates a similar position in the area of regulation.
23. See Carl F. Cranor, Regulating Toxic Substances: A Philosophy of Science and the Law ch. 5 (1993).
24. I do not wish to engage in a discussion of the different forms of contextualism, whether this approach resolves the problem of skepticism, or whether there is some superior response to the skeptic. I only wish to argue that the normal legal approach to knowledge is contextual. On the different forms of contextualism, compare Stewart Cohen, Contextualist Solutions to Epistemological Problems: Scepticism, Gettier, and the Lottery, in Epistemology: An Anthology, supra note 14, at 517, with Lewis, supra note 19, at 503.
25. The question of how much justification is required of one is a separate question of when it is required. In many contexts, there are things individuals believe without justification or without very good justification. We set a very high, indeed an unachievable, standard if we demand that individuals have good justification for their every single belief in every situation. In many contexts, individuals may responsibly hold beliefs without substantial justification. However, when others raise a reasoned objection to the truth of a belief, individuals should be prepared to provide a justification. Once an objection is raised, individuals who hold beliefs without adequate personal justification behave irresponsibly if they are unprepared either to abandon the belief or to provide justification. Williams calls this a "default and challenge model" of knowledge and contrasts it with the alternative "prior grounding requirement" in which all our beliefs must be adequately grounded to be justified. Williams, supra note 11, at 24-25. See generally Nicholas Rescher, Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective (2001). The "benefit of the doubt" approach is not appropriate in every context, however. Courtroom witnessing is one context where it is appropriate to require that beliefs have some prior grounding. This is especially the case with expert witnesses. The expert who asserts the truth of a belief without evidence is properly dismissed out of hand. Recall the often cited passage in General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997): "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Expert witnesses must have prior grounding for their beliefs. This, however, buys us very little, for very few experts even attempt to play the "because I say so" card that is ever popular in parent-child controversies. Most experts purport to provide some justification for their beliefs.
26. DeRose, supra note 19, at 496.
27. See, e.g., Melvin A. Shiffman, Code of Professional and Ethical Conduct, in Ethics in Forensic Science and Medicine: Guidelines for the Forensic Expert and the Attorney 280, 280-89 (Melvin Shiffman ed., 1999) (providing a "proposed ethical code of conduct for the forensic expert" formulated by the National Forensic Center); Ethical Principles of Psychologists and Code of Conduct § 7 (Am. Psychological Ass'n 1992), http://www.apa.org/ethics/code1992.html#Forensic; Ethical Guidelines for the Practice of Forensic Psychiatry (Am. Acad. of Psychiatry & the Law 1995), http://www.aapl.org/ethics.htm See generally Expert Witnesses in Child Abuse Cases: What Can and Should Be Said in Court (Stephen J. Ceci & Helene Hembrooke eds., 1998). Not every code sets such a high standard. The American Medical Association (AMA) guidelines on expert testimony explicitly only oppose "false testimony." See Health and Ethics Policies of the AMA House of Delegates § 265.994 (n.d.), available at http://www.ama-assn.org/ad-com/polfind/Hlth-Ethics.pdf (last visited Nov. 17, 2007).
28. Shiffman, supra note 23, at 285. The relevant sections are, [ ] Professional Competence A member shall only accept those engagements that he or she can perform with technical competence, and which are of a type that the member would routinely perform in the course of normal professional duties. A member will not purport to be an expert in matters in which he has limited knowledge or experience, or in any matter in which peers in the same profession, with the same level of knowledge and experience, would not hold themselves out as experts. [ ] Adequate Data A member shall consider all relevant data, weigh that data, and analyze it objectively in formulating conclusions and opinions. Conclusions of fact will not be drawn from data or materials which appear unrepresentative, atypical, or unreliable. [ ] Methodology All tests, analysis, and other operations leading to conclusions and opinions shall be based on adequate and accepted procedures in that profession, verifiable by retesting or analysis by other professionals. No discredited or unreliable procedure will be used and procedures that are in any way experimental, controversial, or not embraced by that professional community, will be clearly defined as such in the work product and conclusions. The methodology used, and all steps taken in reaching a conclusion, will be clearly set forth and made available upon request. Id.
29. See Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol'y & L. 439, 442 (1997) ("In West Virginia, the former head serologist of the State Police crime laboratory, Trooper Fred Zain, falsified test results in as many as 134 cases from 1979 to 1989.").
30. See Joseph Sanders, Bendectin on Trial: A Study of Mass Tort Litigation 172 (1998). Dr. Alan Done's results from a recalculation of epidemiology studies could not be replicated by either defense or other plaintiff experts. Id.
31. See Judge Janis Graham Jack's scathing opinion in In re Silica Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Tex. 2005) discussed at greater length infra notes 119-21 and accompanying text. With respect to one of the physicians in that case, the court noted, Indeed, the gulf between the methodology Dr. Levy employed for this litigation and the methodology Dr. Levy advocates in his academic work starkly contravenes the Supreme Court's requirement that "an expert . . . employ[ ] in die courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 639 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
32. 293 F. 1013, 1014 (D.C. Cir. 1923).
33. Samuel R. Gross & Jennifer L. Mnookin, Expert Information and Expert Evidence: A Preliminary Taxonomy, 34 Seton Hall L. Rev. 141, 148 (2003) (noting that the Frye standard "pass[es] the buck back to the expert field itself, and accept[s] the standards it imposes on itself").
34. Kumho Tire, 526 U.S. at 152 ("The objective of [the Daubert] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."). In Kumho Tire, the Court criticized the plaintiffs expert on precisely this ground. "Indeed, no one has argued that Carlson himself, were he still working for Michelin, would have concluded in a report to his employer that a similar tire was similarly defective on grounds identical to those upon which he rested his conclusion here." Id. at 157. Apparently, the "same intellectual rigor" test was first advanced by Judge Richard Posner in a set of opinions for the U.S. Court of Appeals for the Seventh Circuit. See Braun v. Lorillard Inc., 84 F.3d 230, 234 (7th Cir. 1996); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996);
35. see also J. Brook Lathram, The "Same Intellectual Rigor " Test Provides an Effective Method for Determining the Reliability of All Expert Testimony, Without Regard to Whether the Testimony Comprises "Scientific Knowledge" or "Technical or Other Specialized Knowledge, " 28 U. Mem. L. Rev. 1053 (1998).
36. See Lathram, supra note 30, at 1057.
37. As Haack notes, [A]ll empirical investigation demands the same epistemic virtues: respect for evidence, care and persistence in seeking it out, good judgment in assessing its worth; and that, in a sense, all empirical investigation uses the same method-the method of experience and reasoning: making an informed conjecture, seeing how it stands up to the available evidence and any further evidence you can lay hands on, and then using your judgment whether to drop it, modify it, stick with it, or what. What is distinctive about natural-scientific inquiry isn't that it uses a particular mode or modes of inference, but the vast range of helps to inquiry scientists have developed, many of them - specific instruments, specific kinds of precaution against experimental error, specific models and metaphors - local to this or that field or sub-discipline. Susan Haack, Defending Science - Within Reason: Between Scientism and Cynicism 167 (2003).
38. David L. Faigman, The Law's Scientific Revolution: Reflections and Ruminations on the Law's Use of Experts in Year Seven of the Revolution, 57 Wash. & Lee L. Rev. 661, 667 (2000) (referencing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)) (footnotes omitted).
39. Of course astrology experts are never admitted in courts. However, many critics claim that overly lax standards are frequently used in the criminal context to admit questionable forensic evidence such as handwriting analysis or tool mark evidence.
40. Neil B. Cohen, The Gatekeeping Role in Civil Litigation and the Abdication of Legal Values in Favor of Scientific Values, 33 Seton Hall L. Rev. 943, 949 (2003).
41. For an article that comes close to this point of view, see Margaret G. Farrell, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemiology and Legal Process, 15 Cardozo L. Rev. 2183, 2204-05 (1994).
42. It is unlikely that a professional organization would accept either Professor Faigman's or Professor Cohen's caveat. It is hard to imagine an organization of handwriting experts agreeing that within its own ranks a certain level of justification is sufficient to ethically assert a belief but that this standard is too low for the courtroom. It is nearly as difficult to believe that there are organizations prepared to promulgate ethical standards for their members that suggest some lower level of justification is appropriate for the courtroom. The standards cited above explicitly state the opposite; that individuals should apply the standards of their discipline to their witnessing tasks. From the organization's point of view, Professor Cohen's position undermines the organization's efforts to establish ethical standards for its members when the members testify in court and, as a consequence, Cohen's position creates an ethical problem for experts in these areas who, under Cohen's proposal, would be asked to testify to propositions that they could not appropriately assert within their discipline.
43. Faigman, supra note 33, at 665-66.
44. Cohen, supra note 35, at 949-51.
45. For example, Daubert's falsifiability test and the underlying Popperian view of science that it allegedly reflects, has been a topic of frequent criticism, especially among philosophers of science. See generally Haack, supra note 32, at 251;
46. Erica Beecher-Monas, The Heuristics of Intellectual Due Process: A Primer for Triers of Science, 75 N.Y.U. L. Rev. 1563 (2000);
47. David S. Caudill & Richard E. Redding, Junk Philosophy of Science?: The Paradox of Expertise and Interdisciplinarity in Federal Courts, 57 Wash. & Lee L. Rev. 685 (2000);
48. Gary Edmond & David Mercer, Conjectures and Exhumations: Citations of History, Philosophy and Sociology of Science in US Federal Courts, 14 L. & Literature 309 (2002);
49. Haack, supra note 2; Dale A. Nance, Reliability and the Admissibility of Experts, 34 Seton Hall L. Rev. 191 (2003). On this issue, I find myself aligned with David Kaye, who makes the following observation: As to the crucial issue of actually testing a scientific theory, the Daubert Court did not adopt the details of either Hempel's or Popper's approach to defining the extent to which an empirical theory is corroborated or verified. Neither did it adopt some strange amalgam of the two. It merely made the point that hypotheses that have not been validated by experiments or other tests capable of refuting them are less secure than those that have been tested. Surviving serious empirical testing is not all there is to a credible scientific theory, but it is a good start. For this reason, Daubert's concern with "testing" is a sensible and important part of the judicial inquiry into scientific validity. Of course, this does not mean that "testing" or the other factors enumerated in Daubert are easily applied. Courts continue to struggle with the task of excluding purportedly scientific testimony that is not sufficiently helpful to the trier of fact. The law of evidence requires judges to ascertain whether a particular scientific theory or method is worth betting on, and they would do well to place their bets on theories that are not only testable but that also are tested. This, and only this, is the meaning of Daubert's first indicator of scientific validity. One can complain that it leaves a great deal unsaid, but so does any opinion that points to a general standard rather than a mechanical rule. D.H. Kaye, On "Falsification" and "Falsifiability": The First Daubert Factor and the Philosophy of Science, 45 Jurimetrics 473,479-80 (2005) (footnotes omitted). For a general discussion of the Daubert trilogy's approach to science, see Joseph Sanders, Shari S. Diamond & Neil Vidmar, Legal Perceptions of Science and Expert Knowledge, 8 Psychol. Pub. Pol'y & L. 139 (2002).
50. In support of this proposition, one need look no further than Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999) ("Nor, on the other hand, does the presence of Daubert's general acceptance factor help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.").
51. See Susan Haack, Irreconcilable Differences?: The Uneasy Marriage of Science and the Law, 72 Law & Contemp. Probs. (forthcoming Winter 2009) (manuscript on file with author); Herbert M. Kritzer, The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom, 72 Law & Contemp. Probs. (forthcoming Winter 2009) (manuscript on file with author).
52. Type I errors occur when we conclude that there is a causal relationship between two variables when in fact there is not. Tests of statistical significance are one device used to guard against this type of error. Type II errors occur when we conclude that there is not a causal relationship between two variables when in fact there is.
53. Susan Haack quotes C.S. Peirce on this point: Moreover, Peirce was right to warn that when "it is no longer the reasoning which determines what the conclusion shall be, but the conclusion which determines what the reasoning shall be," the inevitable result will be "a rapid deterioration of intellectual vigor": "man loses his conception of truth and of reason," and comes to think of reasoning as "merely decorative," until "the truth for him is that for which he fights." Susan Haack, Epistemology Legalized: Or, Truth, Justice, and the American Way, 49 Am. J. Juris. 43, 49 (2004).
54. Occasionally, in a few areas, the law's commitment to termination weakens. In a substantial number of criminal and family law disputes involving DNA, courts have reopened cases that had been litigated to a final conclusion. See Haack, supra note 2; see also Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 Fordham L. Rev. 1453, 1480-83 (2007) (discussing prosecutors' responses to cases being reopened on the basis of DNA evidence).
55. See generally Seth F. Kreimer, Truth Machines and Consequences: The Light and Dark Sides of 'Accuracy' in Criminal Justice, 60 N.Y.U. Ann. Surv. Am. L. 655 (2005);
56. Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. Pa. L. Rev. 547 (2002);
57. Michael Risinger, Unsafe Verdicts: The Need for Reformed Standards for the Trial and Review of Factual Innocence Claims, 41 Hous. L. Rev. 1281 (2004);
58. Paula Roberts, Truth and Consequences: Part I. Disestablishing the Paternity of Non-marital Children, 37 Fam. L.Q. 35 (2003). For a general discussion of closure in science and law and an observation that recently courts have more frequently sided with science in the way disputes are ultimately resolved, see Sanders, supra note 26, ch. 7.
59. See Joseph Sanders, The Bendectin Litigation: A Case Study in the Life Cycle of Mass Torts, 43 Hastings L.J. 301, 349-54 (1992) (describing this "first plaintiff problem").
60. Cohen, supra note 35, at 950-51.
61. Id. at 950.
62. The evidence may be so limited that an expert must conclude that he has no reliable opinion to give, i.e., on the question at hand he is not an expert. Were an epidemiologist asked his opinion about a suggested relationship between a substance and an illness where there is no relevant epidemiological research, no matter how urgently we need an answer, the ethical response would be, "As an epidemiologist, I do not know."
63. David L. Faigman et al., How Good Is Good Enough?: Expert Evidence Under Daubert and Kumho, 50 Case W. Res. L. Rev. 645, 654 (2000).
64. See 3 David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony ch. 25 (2006).
65. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999) ("Respondents now argue to us, as they did to the District Court, that a method of tire failure analysis that employs a visual/tactile inspection is a reliable method, and they point both to its use by other experts and to Carlson's long experience working for Michelin as sufficient indication that that is so. But no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience. Nor does anyone deny that, as a general matter, tire abuse may often be identified by qualified experts through visual or tactile inspection of the tire.").
66. Technically, a p-value of .05 means that if in fact there is no association, and if we were to repeatedly draw samples from the relevant population (or repeatedly flip our test coin in one hundred flip samples) 5% of all similar studies would yield an association the same as, or greater than, the one found in the study due to random error.
67. All reasonable scientists recognize that the .05 standard for statistical significance is a convention, not a hard and fast rule of interpretation. The fact that a study fails to reach statistical significance does not prohibit a conclusion that a causal relationship exists and the fact that the results of a study are statistically significant does not require a conclusion that there is a causal relationship. However, one would be very hard-pressed to find any scientist prepared to adopt a .50 p-value in any circumstance. Normally, scientists opt for p-values in the range of .01 to .10. See, e.g., Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643, 683 (1992).
68. David E. Adelman, Scientific Activism and Restraint: The Interplay of Statistics, Judgment, and Procedure in Environmental Law, 79 Notre Dame L. Rev. 497, 552 (2004).
69. See Michael D. Green, Science Is to Law as the Burden of Proof Is to Significance Testing, 37 Jurimetrics 205, 222 (1997) (reviewing Cranor, supra note 19).
70. Cohen, supra note 35, at 950.
71. See David Kaye, Naked Statistical Evidence, 89 Yale L.J. 601, 606-07 (1980) (reviewing Michael Finkelstein, Quantitative Methods in Law: Studies in the Application of Mathematical Probability and Statistics to Legal Problems (1978)).
72. James J. Schlesselman, Case-Control Studies: Design, Conduct, Analysis 144-58 (1982).
73. D.H. Kaye, Apples and Oranges: Confidence Coefficients and the Burden of Persuasion, 73 Cornell L. Rev. 54, 72 (1987); see also Kaye, supra note 58, at 607-08 (critiquing the equivalence of error interpretation of burden of persuasion).
74. Carl F. Cranor, A Framework for Assessing Scientific Arguments: Gaps, Relevance and Integrated Evidence, 15 J.L. & Pol'y 7, 58 (2007) (emphasis omitted).
75. Thomas D. Cook & Donald T. Campbell, Quasi-Experimentation: Design & Analysis Issues for Field Settings 37 (1979).
76. Specification errors occur when the researcher fails to consider a factor that mediates the observed effect between two variables, either because it explains changes in both the "cause" and the "effect" or intervenes between the "cause" and the "effect" and acts independently on the "effect." Id. at 50-51. For a discussion of specification errors in the context of toxic torts, see Sanders, supra note 26, at 53-54.
77. Cook & Campbell, supra note 62, at 71.
78. Gerald W. Boston, A Mass-Exposure Model of Toxic Causation: The Content of Scientific Proof and the Regulatory Experience, 18 Colum. J. Envtl. L. 181, 273-74 (1993).
79. Indeed, tests of significance play no role in many areas of expertise in the courtroom. Physicians making a differential diagnosis rarely invoke the concept. 3 Faigman et al, supra note 51, ch. 23.
80. Although it is useful to discuss the expert's ethical position in terms of both role and knowledge, ultimately the two are intertwined, and the central ethical issue is adequate justification. Experts who are committed to a side are likely to advance a belief with less justification than those who are not committed. Such experts are more likely to advance an argument with less justification than they would need were they working in their own field and, lured by financial remuneration, they will be more willing to opine on questions that are not within their core area of expertise.
81. Fed. R. Evid. 702.
82. Steven Lubet, Expert Witnesses: Ethics and Professionalism, 12 Geo. J. Legal Ethics 465, 467 (1999).
83. Id. at 467-68.
84. Ethical Guidelines for the Practice of Forensic Psychiatry (Am. Acad, of Psychiatry & the Law 1995), http://www.aapl.org/ethics.htm.
85. See Shiffman, supra note 23, at 283 ("A forensic expert assumes the added role of a teacher. Members are required to maintain competence in both their expertise and in an ability to clearly and accurately disseminate that expertise to others.").
86. See Joanna A. Albers et al., Toward a Model Expert Witness Act: An Examination of the Use of Expert Witnesses and a Proposal for Reform, 80 Iowa L. Rev. 1269 (1995). The preamble to the model statute drafted by a group of University of Iowa law students begins with the following sentence: "This [Act] is designed to fundamentally change the role of an expert witness from advocate to educator." Id. at 1276 (modification in original).
87. Mark A. Chesler et al., Social Science in Court: Mobilizing Experts in the School Desegregation Cases 112 (1988).
88. Id. at 114-15.
89. Id. at 115.
90. Id. at 114.
91. Id. at 115 (omission in original).
92. Id. at 127-28 (omission in original).
93. Id. at 127.
94. Most school desegregation cases were brought by either the National Association for the Advancement of Colored People (NAACP) or a separate organization, the NAACP Legal Defense Fund. Id. at 14-15.
95. 1 Faigman et al., supra note 51, § 3.6.
96. Chesler, supra note 74, at 121 tbl.6.6.
97. It is not clear how many areas are similar to the school desegregation cases in this regard. Possible candidates are experts testifying in death penalty cases and various forms of discrimination or affirmative action cases. It may be, of course, that particular experts feel very strongly with respect to more mundane topics such as medical malpractice or products liability cases. Michael J. Saks and Richard Van Duizend quote a statistician who made a similar comment. Michael J. Saks & Richard Van Duizend, The Use of Scientific Evidence in Litigation (1983). He envisioned the fact-finding task as a matrix and each side was to fill in only those cells favorable to it. The fact-finder's ability to see the whole picture turned on the skill of each side in filling its cells. See 1 Faigman et al., supra note 51, § 3.7 n.2.
98. 1 Faigman et al., supra note 51, § 3.7.
99. One difference between "assistant advocates" and "hired guns" may be in compensation. Some experts occasionally offer their services for free.
100. As some of the quotes in the text suggest, occasionally experts may attempt to ethically justify a legal-adversary role because the other side's expert may be expected to do the same. In favor of this position is the reality that many lawyers seek experts who will behave in this way. See Daniel W. Shuman et al., An Empirical Examination of the Use of Expert Witnesses in the Courts - Part II: A Three City Study, 34 Jurimetrics J. 193, 201 (1994). Note how this justification recognizes that in a party witness system the parties are caught up in a type of prisoner's dilemma in which each side must seek out an expert who will be biased on the stand to counteract the opposing expert biases.
101. See infra note 152 and accompanying text regarding the comments of a neophyte expert on the pressures he faced.
102. When federal judges are asked about problems they encounter with expert testimony, the most frequently mentioned problem is that "experts abandon objectivity and become advocates for the side that hired them." Carol Krafka et al., Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials, 8 Psychol. Pub. Pol'y & L. 309, 314 n.4 (2002). Jurors, too, may perceive bias. A National Law Journal poll in 1992 found that over thirty percent of jurors in civil cases reported the experts were biased. Expert Witnesses Found Credible by Most Jurors, Nat'l L.J., Feb. 22, 1993, at S4. Not surprisingly, some feel that this is a low number. One experienced litigator who thought the percentage would be higher observed, "It means we have a lot of good actors as experts." Id. Separate from the question of any bias and failure to have good justification is the question of how badly experts fall short of some ideal. Even if every expert failed to assess evidence as rigorously as they do in their professional work, if the shortfall were de minimis we would have a de minimis problem. On the magnitude of the shortfall, people disagree. Compare Richard A. Posner, An Economic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477, 1536 (1999) (arguing that the problem of partisanship is not particularly grave), with Jeffrey L. Harrison, Reconceptualizing the Expert Witness: Social Costs, Current Controls and Proposed Responses, 18 Yale J. on Reg. 253, 255-56 (2001) (stating that there is a substantial problem of dishonesty). Of course both of these positions are arguing about the mean, but of greater concern might be the variance and the percentage of experts that fall substantially below some measure of ethical justification.
103. See Harrison, supra note 89, at 290-93; Gary N. McAbee, Improper Expert Medical Testimony: Existing and Proposed Mechanisms of Oversight, 19 J. Legal Med. 257, 262-64 (1998);
104. Jennifer A. Turner, Going After the 'Hired Guns': Is Improper Expert Witness Testimony Unprofessional Conduct or the Negligent Practice of Medicine?, 33 Pepp. L. Rev. 275, 282-83 (2006).
105. See Briscoe v. LaHue, 460 U.S. 325, 345 (1983).
106. See Laurie Strauch Weiss, Expert Witness Malpractice Actions: Emerging Trend or Aberration?, Prac. Litigator, Mar. 2004, at 27, 31-37 (discussing a collection of cases).
107. See generally Randall K. Hanson, Witness Immunity Under Attack: Disarming "Hired Guns, " 31 Wake Forest L. Rev. 497 (1996);
108. Leslie R. Masterson, Witness Immunity or Malpractice Liability for Professionals Hired as Experts?, 17 Rev. Litig. 393 (1998);
109. W. Raley Alford III, Comment, The Biased Expert Witness in Louisiana Tort Law: Existing Mechanisms of Control and Proposals for Change, 61 La. L. Rev. 181 (2000).
110. See infra notes 119-21 and accompanying text (discussing the silicosis litigation).
111. Michael J. Saks, Scientific Evidence and the Ethical Obligations of Attorneys, 49 Clev. St. L. Rev. 421, 426 (2001).
112. See generally David S. Caudill, Advocacy, Witnesses, and the Limits of Scientific Knowledge: Is There an Ethical Duty to Evaluate Your Expert's Testimony?, 39 Idaho L. Rev. 341 (2003).
113. Saks, supra note 94, at 426.
114. Searching for an agreeable expert is especially troublesome when done by prosecutors in criminal cases. Even here, however, sanctions are very unlikely, limited to situations where there is evidence the prosecutor framed the defendant. See Paul C. Giannelli & Kevin C. McMunigal, Prosecutors, Ethics, and Expert Witnesses, 76 Fordham L. Rev. 1493 (2007).
115. Edward K. Cheng, Same Old, Same Old: Scientific Evidence Past and Present, 104 Mich. L. Rev. 1387, 1399 (2006).
116. In Deatherage v. Examining Board of Psychology, 948 P.2d 828 (Wash. 1997), the court held that the absolute witness immunity rule in Washington did not extend to professional disciplinary proceedings. The Washington State Examining Board of Psychology brought disciplinary proceedings against the plaintiff for failure to meet professional ethical standards in work that formed the basis of his expert testimony in child custody suits. "The Board found Deatherage's failure to qualify statements, his mischaracterization of statements, his failure to verify information, and his interpretation of test data were adequate grounds for initiating disciplinary proceedings. . . ." Id. at 829. Ultimately, the board suspended his license for a decade. Id. In Huhta v. State Board of Medicine, 706 A.2d 1275 (Pa. Commw. Ct. 1998), the court similarly held that judicial immunity did not shield a physician from disciplinary proceeding before the Pennsylvania State Board of Medicine. Id. at 1275. In this case, the witness's transgression was the disclosure of confidential patient records. Id. In Budwin v. American Psychological Ass'n, 29 Cal. Rptr. 2d 453 (Ct. App. 1994), the American Psychological Association censured the plaintiff after finding that he violated principles embodied in its Ethical Principles of Psychologists when he testified falsely that he conducted a one-hour interactive "play" interview with a mother and her two daughters in a proceeding in which he recommended that the mother lose custody of the younger child. Id. at 455. The plaintiff then sued the organization, claiming that his testimony was protected under various immunity provisions. Id. The trial court granted him a summary judgment but the appellate court reversed, finding that associations such as the American Psychological Association may regulate the conduct of their members. Id. at 455, 459-60. As the Budwin opinion indicates, experts may not accept sanctions graciously. The Florida Medical Association has an Expert Witness Committee as part of its Council on Ethical and Judicial Affairs. In Fullerton v. Florida Medical Ass'n, Inc., 938 So. 2d 587 (Fla. Dist. Ct. App. 2006), an expert sued the state medical association (of which he was not a member) and a number of physicians who had filed a complaint with the association alleging his testimony fell below reasonable professional standards and that he specifically "presented false testimony and false theories about stroke in the hope to prove negligent medical care in an 80-year-old diabetic with previous strokes who suffered a stroke despite appropriate care." Id. at 589. Dr. John Fullerton sued for defamation, tortious interference with an advantageous business relationship, conspiracy, witness intimidation, and violation of Florida's Racketeer Influenced and Corrupt Organizations Act. Id. He stated in his complaint that the Expert Witness Committee "was organized for the purpose of intimidating, hindering, and deterring persons . . . from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice." Id. The appellate court reversed a trial court dismissal of this action and held that the Florida peer-review immunity statute did not govern this situation. Id. at 593-95. However, the court expressed no opinion on the sufficiency of the counts in the plaintiff's amended complaints to state a cause of action. Id. at 595.
117. 253 F.3d 967 (7th Cir. 2001).
118. Id. at 968.
119. Id.
120. As to Dr. Donald Austin's claim of an injury to an important economic interest, the court noted that membership in the association is voluntary. Id. at 971. But undoubtedly the sanction badly damaged Austin's livelihood. According to the court, his annual expert witness income fell from more that $220,000 prior to the sanction to around $77,000 after the sanction. Id. The court held that this "moonlighting" income did not constitute an "important economic interest." Id. at 971-72 (internal quotation marks omitted). In order for the plaintiff to be entitled to money damages, "[a]t the very least, the association's action must jeopardize the principal source of the professional's livelihood, and not a mere sideline." Id. at 972.
121. Id. at 968.
122. Id. at 974.
123. Id. at 969. Austin also argued that "the Association acted in bad faith because it never disciplines members who testify on behalf of malpractice defendants." Id. This raises an important question of bias. Organizations such as the American Psychological Association do not have an obvious partisan position in the sense that they are equally likely to sanction a plaintiff or a defense expert. The same may not be true of organizations such as the American Association of Neurological Surgeons or other medical organizations. As the Austin complaint indicates, plaintiff groups are likely to believe that such organizations are more likely to sanction plaintiff experts than defense experts. See Terry Carter, M.D. with a Mission: A Physician Battles Against Colleagues He Considers Rogue Expert Witnesses, 90 A.B.A. J., Aug. 2004, at 41, 44.
124. Austin, 253 F.3d at 972.
125. See, e.g., Budwin v. Am. Psychological Ass'n, 29 Cal. Rptr. 2d 453 (Ct. App. 1994); Fullerton v. Fla. Med. Ass'n, Inc., 938 So. 2d 587 (Fla. Dist. Ct. App. 2006).
126. Turner, supra note 90, at 282.
127. Carter, supra note 105, at 44.
128. Giannelli & McMunigal, supra note 96, at 1498-1506.
129. N.S.W. Unif. Civ. P. R. 31.23, available at http://www. legislation.nsw.gov.au/sessionalview/sessional/SRTITLE/ Civil%20Procedure%20Act%202005%20%20Uniform%2 0Civil%20Procedure%20Rules%20(Amendment%20No%2012)%202006% 20(2006-717) %20%5BGG%20No%20175%20of%208.12.2006,%20p%2010468%5D.pdf. I am indebted to Gary Edmond for bringing this code to my attention.
130. Id. The full text of this section is as follows: 5 Experts' reports (1) An expert's report must (in the body of the report or in an annexure to it) include the following: (a) the expert's qualifications as an expert on the issue the subject of the report, (b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed), (c) the expert's reasons for each opinion expressed, (d) if applicable, that a particular issue falls outside the expert's field of expertise, (e) any literature or other materials utilised in support of the opinions, (f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out, (g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report). (2) If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report. (3) If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed. (4) If an expert witness changes his or her opinion on a material matter after providing an expert's report to the party engaging him or her (or that party's legal representative), the expert witness must forthwith provide the engaging party (or that party's legal representative) with a supplementary report to that effect containing such of the information referred to in subclause (1) as is appropriate. Id.
131. Id.
132. The code, like the same intellectual rigor test and the ideal of the disinterested educator role, serves two purposes. It is a device to help experts reach correct decisions and also a device to constrain the influence of undesired or irrelevant factors such as personal preferences or a desire to please those who are paying the experts. See Robert Nozick, The Nature of Rationality 7 (1993).
133. See, e.g., In re Vioxx Prods., 489 F. Supp. 2d 587, 588 (E.D. La. 2007) (overturning a defense verdict and ordering a new trial because of the manufacturer's cardiology expert's misrepresentation that he was board certified).
134. George P. Lakoff, A Cognitive Scientist Looks at Daubert, 95 Am. J. of Pub. Health S114, S117 (Supp. 12005).
135. Harrison, supra note 89, at 275.
136. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999).
137. 398 F. Supp. 2d 563 (S.D. Tex. 2005).
138. According to the court, "A 'B-reading' is a physician's report of findings from a patient's chest radiograph (i.e., an 'x-ray'). This report is entered on a standardized form using a classification system devised by the International Labour Office (ILO). The National Institute for Occupational Safety and Health (NIOSH) issues 'B-reader' certifications for physicians in the United States. There are approximately 500-700 certified B-readers currently practicing in the United States." Id. at 581 n.28.
139. Id. at 606-07 (footnotes and citations omitted). Dr. Ray Harron worked for N & M in the 1990s when the firm's focus was on asbestos claims and again in 2000 when the focus had shifted to silicosis claims. Id. at 607. Harron read the x-rays of 1807 plaintiffs who made asbestos claims against the Manville Trust and reread the same x-rays for indications of silica exposure. Id. at 608. When he read the x-rays for the asbestos litigation he found them all to be consistent only with asbestosis and not with silicosis. When he reexamined the x-rays for the silica litigation he found evidence of silicosis in every case. Id. Subsequently, Harron and two other physicians pled the Fifth rather than testify before Congress. Silica Doctors Take the Fifth at Capitol Hill Hearings, Andrews Toxic Torts Litig. Rep., Dec. 22, 2006, at 21. For an instance where the screening process conducted by plaintiffs was much more rigorous, see In re Welding Fume Products Liability Litigation, No. 1:03 CV 17000, 2006 WL 1173960 (N.D. Ohio Apr. 5, 2006). For a general discussion of mass medical diagnosing, see Matthew Mall, Note, Derailing the Gravy Train: A Three-Pronged Approach to End Fraud in Mass Medical Diagnosing, 48 Wm. & Mary L. Rev. 2043 (2007).
140. Harrison, supra note 89, at 276.
141. Id.
142. For a less extreme statement that is devastating because of the source of the criticism, see Redfoot v. B.F. Ascher & Co., No. C 05-2045, 2007 WL 1593239 (N.D. Cal. June 1, 2007). As for Dr. Geier's own studies, defendants argue that Dr. Geier employed a flawed methodology. They note that the IOM [Institute of Medicine], in its 2004 Report, discussed five of Dr. Geier's studies . . . and two reports presented by Dr. Geier to the IOM in 2004. Among other things, the Committee found that Dr. Geier's studies lacked a complete and transparent description of their methods and underlying data - noting in particular that Dr. Geier had provided no information on specification of regression models, had not provided the frequency distribution of variables, and had not clearly reported calculations of statistics. As a result of these deficiencies, the Committee found the results of the studies to be "improbable," "uninterpretable," and "noncontributory with respect to causality." Id. at *7.
143. This fate befell an early expert in the Bendectin litigation. Dr. Alan Done had been a professor at Wayne State University. However, he was asked to resign in large part due to his extensive expert witnessing activities. These activities took him away from his academic obligations and, equally important according to his dean, called into question his scientific judgment. See Michael D. Green, Bendectin and Birth Defects: The Challenges of Mass Toxic Substances Litigation 280 (1996). Done was one of only two witnesses in the lengthy Bendectin litigation prepared to testify that more likely than not the plaintiffs birth defect was caused by the drug, a position almost no other scholars shared, including other experts who testified for the plaintiffs.
144. Outings may be less effective in the criminal context. For example, see Giannelli & McMunigal, supra note 96, at 1498-1501, for the cautionary tale of Joyce "Black Magic" Gilchrist, who was repeatedly rebuked by the Oklahoma Court of Criminal Appeals and, nevertheless, continued to testify for the State. The Giannelli and McMunigal essay is itself a type of outing of unethical experts.
145. See Ctrs. for Disease Control and Prevention, NIOSH Safety and Health Topic: Chest Radiography, http://www.cdc.gov/niosh/topics/ chestradiography/breader-ethics.html (last visited Oct. 18, 2007). One provision is as follows: B Readers shall recognize and disclose any conflicts of interest in the outcome of a chest radiograph classification. B Readers shall not accept compensation that is contingent upon the findings of their chest radiograph classifications or the outcome of compensation proceedings or litigation for which they undertake readings. Id. In the silicosis litigation, N & M was paid $335 per positive reading. In re Silica Prods. Liability Litig., 398 F. Supp. 2d at 601.
146. Discovery Diagnostics, http://www.breader.com (last visited Oct. 18, 2007).
147. Judge Jack Weinstein reflected this position in a 1986 article noting that a rule should focus "not only on the reliability of proposed evidence but also on the jury's probable response to it." Jack B. Weinstein, Improving Expert Testimony, 20 U. Rich. L. Rev. 473, 478 (1986).
148. Erica Beecher-Monas, Heuristics, Biases, and the Importance of Gatekeeping, 2003 Mich. St. L. Rev. 987, 1003-04. Beecher-Monas cites a variety of research pointing toward this conclusion, id. at 1003-04,
149. including Robyn M. Dawes, Behavioral Decision Making and Judgment, in The Handbook of Social Psychology 497 (Daniel T. Gilbert et al. eds., 4th ed. 1998);
150. Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychol. Pub. Pol'y & L. 622 (2001);
151. and Philip E. Tetlock et al., The Dilution Effect: Judgmental Bias, Conversational Convention, or a Bit of Both?, 26 Eur. J. Soc. Psychol. 915, 916-18 (1996) (citing studies demonstrating that "linking diagnostic with nondiagnostic evidence produced more regressive predictions than people would otherwise have made").
152. See Beecher-Monas, supra note 130, at 1005-06.
153. See Joseph Sanders, The Merits of the Paternalistic Justification for Restrictions on the Admissibility of Expert Evidence, 33 Seton Hall L. Rev. 881, 937 (2003).
154. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). According to the Frye test, scientific evidence should be admitted only when the scientific principle upon which the expert's testimony is based is "sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. at 1014. The Frye test was rarely invoked in civil cases until the Agent Orange and Bendectin litigation. See Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1219 (1980).
155. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993).
156. See Lloyd Dixon & Brian Gill, Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision, 8 Psychol. Pub. Pol'y & L. 251, 275-76 (2002) (suggesting that in federal courts, at least, Daubert may have had a deterrence effect).
157. Judge Posner, the author of the "same intellectual rigor" standard, generally agrees. In Austin v. American Ass'n of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001), he discusses the relationship between admissibility under Daubert and irresponsible testimony. He recognizes that judicial admissibility rulings may be in error and notes that judges benefit from the help of professional organizations in screening experts. Posner's opinion focuses on those occasions where an admissibility ruling sets the bar too low. A "judge's ruling that expert testimony is admissible should not be taken as conclusive evidence that it is responsible testimony." Id. at 973. Of course the opposite may happen and a judge may set too high a threshold. The implication of Posner's comment is that setting aside judicial errors and those situations where a field's professional standard fails to reach a minimum legal threshold, in federal courts and many state courts admissibility standards coincide with professional ethics codes.
158. John M. Conley & Scott W. Gaylord, Scientific Evidence in the State Courts: Daubert and the Problem of Outcomes, 44 Judges' J., Fall 2005, at 6, 10 tbl. 1.
159. Id.
160. For example, in Virginia, evidence of questionable reliability is presented to the jury with instructions to take into account the disputed reliability when determining the weight to be given to the evidence, provided there is "a sufficient foundation to warrant admission." Spencer v. Commonwealth, 393 S.E.2d 609, 621 (Va. 1990). Similarly, in Wisconsin, evidence is admissible if the evidence is relevant, the expert is qualified, and the evidence
161. assists the trier of fact. See State v. Walstad, 351 N.W.2d 469, 485-86 (Wis. 1984).
162. Georgia requires little more than relevance, except when an expert's opinion is based on a novel scientific procedure or technique. In that situation, the court may inquire into whether the procedure or technique has reached "a scientific stage of verifiable certainty." Home Depot U.S.A., Inc. v. Tvrdeich, 602 S.E.2d 297, 301 (Ga. Ct. App. 2004).
163. Relevance alone also seems to be the standard for some types of cases in Arizona, such as Logerquist v. McVey, 1 P.3d 113, 132-33 (Ariz. 2000),
164. and Kansas, such as Kuhn v. Sandoz Pharmaceuticals Corp., 14 P.3d 1170, 1185 (Kan. 2000).
165. See Giannelli & McMunigal, supra note 96;
166. Michael J. Saks, Merlin and Solomon: Lessons From the Law's Formative Encounters With Forensic Identification Science, 49 Hastings L.J. 1069 (1998).
167. See Cranor, supra note 61, at 58.
168. See D. Michael Risinger et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 Cal. L. Rev. 1, 18-19(2002).
169. See Blair H. Sheppard & Neil Vidmar, Adversary Pretrial Procedures and Testimonial Evidence: Effects of Lawyer's Role and Machiavellianism, 39 J. Pers. & Soc. Psychol. 320, 329 (1980).
170. See Neil Vidmar & Nancy MacDonald Laird, Adversary Social Roles: Their Effects on Witnesses ' Communications of Evidence and the Assessments of Adjudicators, 44 J. Pers. & Soc. Psychol. 888 (1983).
171. Id. at 893.
172. Id.
173. Some biases are intentional, i.e., they are the result of fraud or deliberate advocacy. Other biases may be thought of as "hot." They are often unintentional and even unconscious, but they are directionally motivated because the individual expects or wants an outcome to prevail. Still other biases are "cold." They occur even in the absence of a desire for a certain outcome and in spite of a desire to achieve accuracy. Robert J. MacCoun, Biases in the Interpretation and Use of Research Results, 49 Ann. Rev. of Psychol. 259, 268 (1998);
174. Risinger et al., supra note 142, at 17.
175. For an example of a cold bias, see William Meadow & Cass R. Sunstein, Statistics, Not Experts, 51 Duke L.J. 629, 636-39 (2001).
176. Shuman et al., supra note 87, at 202-03.
177. Gross, supra note 1, at 1184-85
178. (footnotes omitted). See generally Michael J. Saks & Roselle L. Wissler, Legal and Psychological Bases of Expert Testimony: Surveys of the Law and of Jurors, 2 Behav. Sci. & L. 435 (1984).
179. Sheila Jasanoff, What Judges Should Know About the Sociology of Science, 32 Jurimetrics J. 345, 353-54 (1992).
180. Shuman et al., supra note 87, at 201.
181. Fred Prichard, Experts in Civil Cases: An Inside View 30-31 (2005).
182. Harrison, supra note 89, at 263.
183. Jane Goodman et al., What Confuses Jurors in Complex Cases, Trial, Nov. 1985, at 65, 68. For other discussions of juror skepticism and cynicism, see generally Special Comm. on Jury Comprehension of the ABA Litig. Section, Jury Comprehension in Complex Cases (1989);
184. Anthony Champagne et al., An Empirical Examination of the Use of Expert Witnesses in American Courts, 31 Jurimetrics J. 375 (1991);
185. Sanja Kutnjak Ivković & Valerie P. Hans, Jurors ' Evaluations of Expert Testimony: Judging the Messenger and the Message, 28 Law & Soc. Inquiry 441 (2003);
186. Shari Seidman Diamond & Jonathan D. Casper, Blindfolding the Jury to Verdict Consequences: Damages, Experts, and the Civil Jury, 26 Law & Soc'y Rev. 513, 543 (1992);
187. Daniel W. Shuman & Anthony Champagne, Removing the People from the Legal Process: The Rhetoric and Research on Judicial Selection and Juries, 3 Psychol. Pub. Pol'y & L. 242, 258 (1997);
188. Scott E. Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109 (1997);
189. and Neil Vidmar, Assessing the Impact of Statistical Evidence, A Social Science Perspective, in The Evolving Role of Statistical Assessments as Evidence in the Courts 279 (Stephen Fienberg ed., 1989).
190. See Joe S. Cecil & Thomas E. Willging, Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity, 43 Emory L.J. 995, 1019 (1994).
191. For discussions of these and other alternatives, see Devine et al., supra note 130;
192. Stephen D. Easton, That Is Not All There Is: Enhancing Daubert Exclusion by Applying "Ordinary" Witness Principles to Experts, 84 Neb. L. Rev. 675 (2006);
193. Phoebe C. Ellsworth & Alan Reifman, Juror Comprehension and Public Policy: Perceived Problems and Proposed Solutions, 6 Psychol. Pub. Pol'y & L. 788 (2000);
194. Nancy S. Marder, Bringing Jury Instructions into the Twenty-First Century, 81 Notre Dame L. Rev. 449 (2006);
195. Joseph Sanders, From Science to Evidence: The Testimony on Causation in the Bendectin Cases, 46 Stan. L. Rev. 1 (1993);
196. Shari Seidman Diamond et al., Juror Discussions During Civil Trials: Studying an Arizona Innovation, 45 Ariz. L. Rev. 1 (2003)
197. [hereinafter Seidman Diamond et al., Juror Discussions];
198. Shari Seidman Diamond et al., Juror Questions During Trial: A Window into Juror Thinking, 59 Vand. L. Rev. 1927 (2006);
199. Franklin Strier, Making Jury Trials More Truthful, 30 U.C. Davis L. Rev. 95 (1996);
200. Catherine T. Struve, Doctors, The Adversary System, and Procedural Reform in Medical Liability Litigation, 72 Fordham L. Rev. 943 (2004).
201. See Howard M. Erichson, Mass Tort Litigation and Inquisitorial Justice, 87 Geo. L.J. 1983, 1989 (1999);
202. Joseph Sanders, Scientifically Complex Cases, Trial by Jury, and the Erosion of Adversarial Processes, 48 DePaul L. Rev. 355, 376-77 (1998).
203. Some proposals are designed to hold the jury more accountable for its verdicts. One suggestion would require juries to render special verdicts. There is some evidence that special verdicts do improve a jury's own belief that its verdict was correct. See John D. Jackson, Making Juries Accountable, 50 Am. J. Comp. L. 477, 519-20 (2002);
204. see also Larry Heuer & Steven Penrod, Trial Complexity: A Field Investigation of Its Meaning and Effects, 18 Law & Hum. Behav. 29, 50 (1994);
205. Elizabeth C. Wiggins & Steven J. Breckler, Special Verdicts as Guides to Jury Decision Making, 14 Law & Psychol. Rev. 1, 19 (1990).
206. Available research indicates that these efforts have modest effects on improving jury performance but they do have the clear merit of making the jury experience more enjoyable. See Steven D. Penrod & Larry Heuer, Tweaking Commonsense: Assessing Aids to Jury Decision Making, 3 Psychol. Pub. Pol'y & L. 259, 280-81 (1997);
207. Seidman Diamond et al., Juror Discussions, supra note 156, at 74-75.
208. Jonathan J. Koehler, Train Our Jurors, in Heuristics and the Law 303 (G. Gigerenzer & C. Engel eds., 2006).
209. See generally Geoffrey T. Fong & Richard E. Nisbett, Immediate and Delayed Transfer of Training Effects in Statistical Reasoning, 120 J. Experimental Psychol.: Gen. 34 (1991);
210. Richard E. Nisbett et al., Teaching Reasoning, 238 Sci. 625 (1987);
211. Peter Sedlmeier & Gerd Gigerenzer, Teaching Bayesian Reasoning in Less Than Two Hours, 130 J. Experimental Psychol.: Gen. 380 (2001).
212. Stephen D. Easton, Ammunition for the Shoot-Out with the Hired Gun's Hired Gun: A Proposal for Full Expert Witness Disclosure, 32 Ariz. St. L.J. 465, 474 (2000).
213. Id. at 608.
214. Sanders, supra note 156, at 78-84.
215. It is an interesting question why the U.S. legal system, unlike the legal systems in almost all other developed nations, is so committed to juries composed of a cross section of the community. One answer is that the United States is more strongly committed to what Damaška calls the "coordinate ideal" than are other societies. According to this ideal, "structures of authority are defined by a body of non-professional decision makers, organized into a single level of authority which makes decisions by applying undifferentiated community standards." Jackson, supra note 158, at 478. Whether this is the whole answer, it does help explain why most discussions of the role of juries in civil litigation have such a strong normative component.
216. See 3 Faigman et al., supra note 51, ch. 30;
217. Laural L. Hooper et al., Assessing Causation in Breast Implant Litigation: The Role of Science Panels, 64 Law & Contemp. Probs. 139 (2001).
218. The most well-known of these is the Court Appointed Scientific Expert (CASE) program organized by the American Association for the Advancement of Science (AAAS) and operated under the direction of the National Conference of Lawyers and Scientists, a joint committee of the AAAS and the American Bar Association Science and Technology Section. See AAAS, CASE Mainpage, http://www.aaas.org/spp/case/case.htm (last visited Oct. 19, 2007). Although CASE's experts are rarely used, apparently they are effective in the sense that whenever a judge indicates an intention to appoint such an expert the parties quickly settle the case.
219. Haack, supra note 42, at 33.
220. See Tal Golan, Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America 21 (2004);
221. Cheng, supra note 97, at 395;
222. Stephan Landsman, Of Witches, Madmen, and Products Liability: An Historical Survey of the Use of Expert Testimony, 13 Behav. Sci. & L. 131, 156 (1995) (remarking that court-appointed expert proposals are "as old as the American republic");
223. Sophia Cope, Comment, Ripe for Revision: A Critique of Federal Rule of Evidence 706 and the Use of Court-Appointed Experts, 39 Gonz. L. Rev. 163, 164 (2004).
224. Cecil & Willging, supra note 155, at 1003.
225. Id. at 1018-19;
226. Gross, supra note 1, at 1197-98;
227. Landsman, supra note 168, at 156.
228. Amalia D. Kessler, Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial, 90 Cornell L. Rev. 1181, 1273 (2005).
229. See generally Robert A. Kagan, Adversarial Legalism: The American Way of Law (2001);
230. Oscar G. Chase, American "Exceptionalism, " and Comparative Procedure, 50 Amer. J. Comp. L. 277 (2002);
231. Sven Timmerbeil, The Role of Expert Witnesses in German and U.S. Civil Litigation, 9 Ann. Surv. Int'l & Comp. L. 163 (2003).
232. See, e.g., Marijke Maisch & Ian Freckelton, Expert Bias and Partisanship: A Comparison Between Australia and the Netherlands, 11 Psychol. Pub. Pol'y & L. 42 (2005) (reporting the perception of bias is greater in adversarial Australia than it is in the Netherlands).
233. My discussion of the New South Wales reforms comes largely from Dr. Gary Edmond, Secrets of the 'Hot Tub': Expert Witnesses, Concurrent Evidence and Judge-Led Law Reform in Australia, 27 Civ. Just. Q. (forthcoming 2008). Edmond has been observing concurrent evidence hearings as part of an ongoing research project.
234. Id. at 8-9.
235. See id. at 14-18.
236. Id. at 19.
237. Haack, supra note 2, at 212.
238. Redmayne, supra note 5, at 860.