Thursday, July 10, 2008

Indicia of Good Faith in Expert Testimony

We argued that experts testifying in good faith to opposing views implied a scientific controversy. The court was not competent to resolve it. Only additional data can resolve a scientific controversy. Presumably, if the data were easy to get, one of the experts would change opinion and end the case. We argued the court should restrict itself to question within the knowledge of the jury.

Question. Are there indicia of good faith testimony and reliability?

1) Experts should have used the same facts, and had an opportunity to enumerate them to each other, as in depositions.

2) The fees should be within a third of each other. If one fee is 50% higher or more, there is a temptation to please, by testifying in bad faith. The higher fee should be reduced by the judge, to insure absence of temptation.

3) The testimony work of the expert should be below a set fraction of total income. The expert may testify under oath, without providing tax documents. I am going to arbitrarily set the maximum at 10%. If I lose that fraction, I am starting to sweat about the bills. I am open to
argument about another fraction.

4) Prior inconsistent statements. In a similar case, with the same outcome, harm, and facts, the expert testified otherwise. OK. What explains the change? In the absence of new research data, or substantive personal experience, a prior inconsistent statement is a sign of bad faith.

4a) All the records of all the similar cases treated by the expert should be subpoenaed. If the expert failed to follow his own asserted standard of due care, a mistrial should be declared. The expert should be made to pay the expenses of both sides, and of the court, as a perjurer.

5) Repeated testimony for an attorney, or for only one side. If there is a lucrative and prolonged relationship with an attorney or one side, that is a sign, the expert does not want to end his meal ticket, and will shade his opinion to please his good customers.

Other indicia welcome. If an expert fails one of these indicia, the case should end. If the judge does not want to end the case, it may be proper for the judge to instruct the jury to discount the validity of the testimony by the strength of the failing indication.

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