Punishing
Medical Experts for Unethical Testimony:
A Step in the Right Direction or a Step too Far?
David B. Resnik, J.D., Ph.D.*
* Department of
Medical Humanities, The Brody School of Medicine, East Carolina University
1. Introduction: The Lustgarten Case
On July 19, 2002, the North Carolina Medical Board (NCMB) revoked the
license of Gary James Lustgarten, M.D. for allegedly unethical conduct in
expert testimony he provided in a medical malpractice case in North Carolina. The Board found
that Lustgarten, who is a Florida neurosurgeon, was either dishonest or incompetent when he
testified in a medical malpractice case against two Fayetteville, North Carolina neurosurgeons.[1] In this case, Hardin, et al v. Carolina Neurological
Services, P.C. et al, the mother
and father of 20-year-old Michael Hardin sued Drs. Victor Keranen and Bruce
Jaufmann and the Cape Fear Valley Medical Center for wrongful death of their son.[2] The Hardins claimed that the doctors failed to
follow the standard of care for surgery to reopen their son's shunt, a device
that had been placed inside his head when he was three months old to drain
brain fluid. In January 1995, Karenan
performed the surgery, and Jaufmann took responsibility for the post-operative
care of Hardin. A few hours after the
surgery, Hardin developed a headache and became agitated. His heart stopped beating. The medical team resuscitated Hardin, and
Jaufmann initiated emergency brain surgery.
Unfortunately, Hardin never regained consciousness and died eighteen
days later.[3]
The Hardins claimed
that the doctors acted negligently by not responding to their son's medical
problems quickly enough. Lustgarten
supported their claims by testifying that the doctors failed to meet the
standard of care for Hardin because a) Keranen did not provide Jaufmann with
the sufficient details of the surgery when Jaufmann took over the
post-operative care Hardin; b) Hardin should have been placed in an intensive
care unit; c) the nurses did not watch Hardin closely enough; and d) Jaufmann
should have phoned the hospital to check on Hardin's condition. Lustgarten also speculated that Jaufman had falsified
medical records to cover up his mistakes.
Other experts also supported Lustgarten’s testimony that the doctors had
violated the standard of care. Before
the jury began deliberating, Karenan's insurance company settled with the
Hardins for $2.4 million.[4]
Although Jaufmann had
been dropped from the lawsuit, he filed a complaint with the NCMB, alleging
that Lustgarten slandered his reputation and had given dishonest or incompetent
testimony. According to Jaufmann, “This
is not a difference of opinion. There
are certain acceptable standards and certain truths in neurosurgery.”[5] The NCMB requested that Lustgarten attend a
hearing on this allegation. Lustgarten
was unable to attend the hearing and requested that NCMB reschedule a hearing
or allow him to testify by conference call.
The NCMB denied Lustgarten’s requests and held a hearing without him or
his attorney. In his defense, Lustgarten
wrote a 5-page letter to the NCMB stating that he had merely given his opinion
and that board certified neurology and neuroradiology experts gave testimony
similar to his own at the trial. He also
said that the NCMB was biased and that it was simply trying to protect North Carolina neurosurgeons.[6]
The State of North Carolina has granted the NCMB the authority to sanction doctors for
unprofessional behavior. It can deny,
suspend or revoke a physician’s license to practice medicine for alcohol or
substance abuse, illegal conduct, incompetence, as well as conduct that
violates standards of honesty, justice, professional ethics or good morals,
irrespective of whether the physician’s conduct has actually harmed a patient.[7] Although medical boards frequently punish
doctors for unethical conduct, the NCMB does not know of any cases in the United States where a board has acted against a physician for unethical
conduct related to expert testimony.
Lustgarten's NC license has been inactive since June 1998. On August 22, 2002, the Board denied Lustgarten's motion to reopen the case.[8] The state in which Lustgarten practices, Florida, may also consider revoking his license, if Lustgarten
loses his license in North
Carolina. Additionally, if Lustgarten loses his license
in North Carolina and in Florida, his medical career would be in great
jeopardy, since other states may also deny him a license, based on his record
in states where he has lost his license.
Lustgarten appealed
the NCMB’s decision to the Superior Court of Wake County.[9] In challenging the NCMB’s decision,
Lustgarten argued that NCMB’s decision should be reversed because 1) the NCMB
did not have authority to revoke a license on the basis of testimony in a civil
case; 2) Lustgarten’s testimony was privileged; 3) revoking Lustgarten’s
license violated his rights to free speech; 4) revoking Lustgarten’s license
undermines access to the courts; 5) revoking Lustgarten’s license violated
separation of powers; and 6) the NCMB’s actions violated Lustgarten’s due
process rights.[10]
The Superior Court
affirmed the NCMB’s conclusions of fact, but reversed several of its
conclusions of law. The Court found that
the statute granting the NCMB the authority to discipline physicians was
unconstitutionally vague as applied to Lustgarten’s testimony concerning the
standard of care in a medical malpractice case because the statute does “place
a reasonably intelligent member of the profession on notice he or she could be
disciplined for such conduct”.[11] However, the Court also concluded that the
statute was not unconstitutionally vague as applied to Lustgarten’s testimony
that Jaufman had falsified medical records.[12]
The Superior Court
remanded the case the NCMB for disciplinary action pursuant to Lustgarten’s
testimony that Jaufman had falsified records.
On November 21, 2003, NCMB reduced Lustgarten’s punishment to a one-year
suspension of his license. Lustgarten
has appealed the NCMB’s most recent decision.[13]
Prior to the action
taken by the NCMB, the Professional Conduct Committee of the American
Association of Neurological Surgeons (AANS) had found that Lustgarten had acted
unprofessionally in his expert testimony in a wrongful death case involving the
death of a 21-year-old patient. The AANS
suspended his membership for six months.[14] The AANS also suspended Lustgarten's
membership for unethical conduct related to his testimony in the same case that
the NCMB acted upon.[15]
The AANS also
suspended another member, Donald Austin, for unethical expert testimony. Austin sued the AANS for contractual damages, but the 7th U.S.
Circuit Court of Appeals upheld the AANS’ authority to suspend members who
provide unethical expert testimony.[16]
Several professional
associations, including the AANS, American Medical Association (AMA), the
American Association for Psychiatry and Law (AAPL), the American College of Obstetrics and Gynecology (ACOG), and the American Statistical
Association (ASA) have developed rules of professional conduct pertaining to
expert testimony.[17]
2. Statement of the Issues
Few people would
disagree with the importance of ensuring that expert witnesses provide
testimony that is ethical and competent.
Since many legal cases depend heavily on the testimony of experts,
unethical or incompetent testimony can dramatically affect the outcome of such
cases. But how should society respond to
this potential problem of unethical or incompetent expert testimony? Dealing with unethical or incompetent expert
testimony raises some fundamental issues of law, ethics, and public policy:
1. What
are the current legal procedures or strategies for dealing with incompetent or
unethical expert testimony?
2. Is
expert testimony legally privileged?
Aside from liability for perjury, do witnesses have immunity from civil
or criminal liability resulting from their testimony in court?
3. Is
expert testimony constitutionally protected free speech? Under what conditions could the state
proscribe, restrict, or control expert testimony?
4. Are
existing ethical rules and policies pertaining to expert testimony so vague
that using them to sanction an individual would violate that individual’s
rights to due process? How should rules
be formulated so that they avoid this problem?
5. Is
it unfair to take away a physician’s license to practice medicine for unethical
or incompetent expert testimony? Is this
form of punishment excessive?
6. Does
sanctioning expert witnesses undermine access to the courts for plaintiffs?
7. Does
sanctioning expert witnesses undermine scientific freedom?
This paper will
address these issues and formulate a proposal for dealing with unethical or
incompetent expert testimony. It will
argue that rules for expert witness conduct must be unambiguous and fair. The rules should help deter unethical and
incompetent testimony without undermining important values, such as free
speech, due process, and access to the courts.
To accomplish these goals, this paper will (1) provide an overview of
expert testimony in the U.S. legal system; (2) consider the problem of unethical and
incompetent testimony, and how the U.S. legal system responds to this problem, and (3) consider
some of the legal, ethical and policy issues raised when organizations sanction
experts for their testimony.
3. The Role of Experts in the U.S. Legal System
In the U.S. legal system, judges decide whether to allow any particular
witness--expert or non-expert--to testify in any particular case. A minimum threshold for admitting testimony
is that it must be relevant to the outcome of the case.[18] The testimony must present evidence that has
some probative value, i.e. the evidence will make a factual and material
statement in the case more or less probable.[19] Although it is usually not very difficult to
show that evidence has some probative value, a judge may refuse to admit
testimony if its prejudicial effect substantially outweighs its probative
value.[20] For example, courts will often refuse to
allow the trier of fact, either a judge or a jury, to consider testimony
relating to a criminal defendant’s moral character because the testimony, while
probative, may be highly prejudicial.[21] Judges make all decisions pertaining to
admitting or excluding evidence in court, and a judge’s rulings on evidence can
only be challenged if they are so unreasonable that they amount to an abuse of
discretion.[22]
Under the 18th
century English common law, laymen who testified (or lay witnesses) were
supposed to provide factual testimony based on their first-hand observations;
lay witnesses were not supposed to state their opinions in their
testimony. If a lay witness offered an
opinion in his testimony, that part of his testimony could be excluded. However, U.S. law has evolved since the 18th century and now accepts lay
opinions. The courts allow lay witnesses
to offer opinions, and will reject lay opinions only when they have no value to
the jury.[23] The courts have shifted their evidence rules,
in part, because they now recognize how difficult it is to draw a clear
distinction between “fact” and “opinion”: the difference between fact and
opinion is a matter of degree.[24] For example, in rendering “factual” testimony
about a simple event like a car accident, a witness may make many inferences
and assumptions about how fast the car was going, whether the driver had good
visibility, the road conditions, etc.
Expert witnesses,
unlike lay witnesses, are expected to offer their opinions relating to the
facts in the case.[25] Experts draw inferences from facts based on
their particular area of expertise, be it medicine, science, engineering, auto
mechanics, or cosmetology. The use of
expert witnesses has increased during the last few decades and continues to
rise. Expert witnesses play a prominent
role in many types of litigation, including products liability cases, medical
malpractice lawsuits, bankruptcy proceedings, intellectual property disputes,
and criminal trials.
Since judges decide
all matters relating to the admission of evidence, they also decide whether to
allow a particular expert to testify. In
deciding whether an expert may testify, a judge will consider two factors: 1)
the witness’ qualifications; 2) the reliability of the knowledge or principles
the witness uses to draw inferences from facts (i.e. his or her theories,
assumptions, and methodology).[26] To determine whether a witness qualifies as
an expert, the court considers whether the witness has sufficient skill or
knowledge to aid the jury in determining the truth. The witness need not be the best expert in
his or her field in order to perform this function; he or she need only have
more expertise in that particular field than the jury or the judge.[27]
The problem of how to
assess the reliability of the expert witness’s knowledge or principles has been
the subject of a great deal of debate ever since the Supreme Court’s decision
in Daubert v. Merrell Dow Pharmaceuticals.[28] Daubert articulated a new test for admitting
scientific testimony in federal courts, and rejected a common law test
articulated in Frye v. United States.[29] According to the Frye test, the federal courts can admit scientific testimony only
if the principles that the witness uses to draw inferences have gained general
acceptance in the witness’ field.[30] Daubert
held that the Federal Rules of Evidence, which were enacted after Fyre, superseded Frye.[31] Rule 702 requires that the judge must ensure
that the scientific evidence admitted in court is relevant and reliable.[32] The Court articulated a number of factors
that a judge may consider in determining whether scientific testimony is
reliable, including whether the knowledge has been or could be tested, whether
it has been published or reviewed by peers, its error rate, and its general
acceptance.[33] Under Daubert,
the judge acts as a “gatekeeper” for scientific testimony, since his evaluation
of the testimony, not the evaluation of members of the particular discipline or
profession, determines whether evidence can be admitted.
Daubert answered many
questions, but it left other important ones unanswered. Would the Daubert
test apply to all experts or only scientific experts? What’s the difference between a scientific
expert and a non-scientific expert? The
Supreme Court answered some of these questions in Kumho Tire Co. v. Carmichael, ruling that the Daubert factors do not apply to all types of expert testimony.[34] In Kumho,
the plaintiff sued a tire manufacturer for injuries resulting from defective
tires. To support his case, the
plaintiff proffered testimony from an engineer.
The district court excluded this testimony on the grounds that the
engineer’s knowledge did not meet any of the Daubert factors.[35] The plaintiff appealed the case, and the
Supreme Court reversed the ruling of the district court. The Supreme Court held that the specific
factors articulated in Daubert
applied only to scientific knowledge or principles. To determine whether to admit other types of
expert testimony, the judge must determine whether the testimony is reliable
and relevant. The Daubert factors simply
articulate a special definition of reliability for scientific testimony.[36] The Court also held that judges need not
distinguish between “scientific” and “non-scientific” knowledge in applying the
Federal Rules of Evidence, since the rules only require that the testimony be
reliable and relevant.[37] The Court held that judges may consider the Daubert factors in deciding whether to
admit expert testimony, and it also stated that judges should have a great deal
of latitude in making these decisions.[38] Kumho
followed Daubert in affirming the
judge's role as a “gatekeeper.”
While all federal
courts and many state courts accept the Daubert
test, many states courts still accept the Frye
test.[39] If a court follows the Daubert test, it must determine whether the medical expert’s
knowledge or principles are reliable and relevant; if it follows the Frye test, it must determine whether the
expert’s knowledge and principles are generally accepted. If a court follows the Daubert test, it may need to answer the interesting philosophical
question of whether a particular medical specialty is a science or a practical
art, since the Daubert factors
subject scientific testimony to special scrutiny. If a court determines that medicine is not a
science, it can admit testimony based on some assessment of its relevance and
reliability.[40] Under the Frye
test, the question “is medicine a science?” will not arise, since Frye does not single-out scientific
testimony for special scrutiny.
Medical malpractice
laws in most states require that the plaintiff proffer an expert witness,
unless the negligence would be so obvious that a lay person would be able to
determine that the defendant had been negligent.[41] In an action for medical negligence, an expert
may provide testimony pertaining to the standard of care for the defendant’s
specialty, which is one of the key elements in this cause of action.[42] A plaintiff may also prove malpractice if the
defendant admits his or her negligence, or if the defendant’s conduct can be
considered “negligence per se.”[43] While it is usually the case that the
plaintiff’s expert witness is in the same field or profession as the defendant,
this is not a mandatory rule. To qualify
as an expert, a witness need only possess the requisite knowledge and skill of
the defendant’s standard of care. Thus,
a general surgeon could testify against a plastic surgeon on matters of general
surgery[44], or a
psychiatrist could testify on post-operative care for breast implants.[45]
In general, the
standard of care in any negligence case is what the reasonably prudent person
would do in the same or similar circumstances.
In medical negligence, the standard is what a reasonably prudent
physician would do in the same or similar circumstances. Since it would not be prudent to practice
medicine if one is not competent to practice medicine, courts also hold that
the standard of care is what a reasonably prudent and competent physician would
do.[46] If the physician is a neurosurgeon, then the
standard of care is what competent and reasonably prudent neurosurgeon would do
in the same or similar circumstances; if the physician is a psychiatrist, then
the standard of care is what a competent and reasonably prudent psychiatrist
would do, and so on.
As a result of
differences in medical resources, geography, patient populations, and health
care financing and administration, physicians around the country practice in
very different settings. For many years,
many courts took these differences into account by adopting the locality rule:
the standard of care is a local standard, not a national one.[47] This rule had the effect of limiting the pool
of experts who were available to testify, since the court could refuse to admit
the testimony of a non-local expert on the grounds that the expert would not be
familiar with the local standard of care.[48] If the standard of care for neurosurgery in Fayetteville, NC is different from the standard of care for neurosurgery in Miami, FL, then a Miami neurosurgeon would not be able to testify against a Fayetteville neurosurgeon in a negligence case. This severely limited the availability of
experts and helped to encourage a “conspiracy of silence,” since doctors,
especially doctors within the same locality, are reluctant to testify against
each other.[49] In response to this problem, most courts now
reject the locality rule and accept a national standard, while making some
concessions to local circumstances.[50] For example, while a doctor in a small town
may not have access to a Magnetic Resonance Imaging machine or a neurosurgeon,
he can take care of the patient with a brain injury while conforming to
national standards for brain injury care, when one does not have access to this
machine. He should do what a reasonably
prudent physician would do, given the resource constraints and working
conditions.
4. Unethical and Incompetent Expert Testimony
To understand
problems related to unethical or incompetent expert testimony, it will be
useful to define the terms “unethical” and “incompetent” as they pertain to
expert testimony. Let’s begin with the
term “incompetent,” which is a bit easier to define. In general, a person is incompetent if they
are not qualified to perform the job they are asked to perform, or, if they are
qualified, their performance does not measure up to the appropriate
standards. Recall that the whole purpose
of allowing experts to testify is to aid the trier of fact in deciding the
case. An expert could be regarded as
incompetent if he or she is not qualified to offer an opinion that is helpful
to the trier of fact, or, if he or she is qualified but her testimony does not
measure up to the appropriate standards.
There are many ways that an expert might give incompetent testimony:
his/her opinion might be based on unreliable principles or knowledge; his/her
opinion might be biased or dishonest; he/she might lack sufficient training or
experience; or he/she might make a mistake of judgment.
In the U.S. legal system, judges play a key role in preventing experts
from giving incompetent testimony in court.
Part of the gate keeping function of the judge is to distinguish between
competent and incompetent experts and admit only competent experts. If a judge admits an incompetent witness, or
a competent witness acts incompetently in court, the opposing side has the
ability to compensate for this problem by challenging the testimony and
offering its own experts (we will discuss this again later).
The term “unethical
testimony” is a bit more difficult to define, since it is not obvious which
ethical standards should govern the conduct of expert witnesses. Thinking about the role of experts in the
legal system may provide some insight into defining “unethical testimony.” A lay witness has an ethical duty to tell the
truth, the whole truth, and nothing but the truth, since untruthful testimony
is not helpful to the trier of fact. A
lay witness is asked to testify about the facts, rather than to offer opinions. An expert witness, however, may convey facts
and opinions. When an expert is
testifying about factual matters, he or she has an ethical obligation to tell
the truth. When an expert is offering an
opinion, he or she has an ethical obligation to render an opinion that is
helpful to the trier of fact, which would be an opinion that is based on
reasonable inferences. This obligation
can be justified in virtue of the expert’s role in the legal system as an aid
to the trier of fact, as well as by his or her role in society as an
epistemological authority.[51]
What does it mean to give
testimony that is untruthful (or dishonest)?
There are many different ways of lying.[52] Lying may involve acts of commission, such as
making false statements, or acts of omission, such as making statements that
deceive the audience by omitting important details. All forms of lying, however, involve the
intent to deceive one’s audience.
Erroneous testimony is not the same as dishonest testimony, since one
may make an honest mistake. The liar is
someone who takes deliberate measures to make his audience believe a statement
that he knows to be false. So, we can
define “dishonest testimony” as making a statement that one knows to be false
or deceptive.
It is important to
observe that one cannot lie when asserting an opinion. For an expert witness to tell a lie, he must
be making an assertion of fact rather than an assertion of opinion. If we are examining a dead body, and I say
that the victim had a bullet in his heart, when, in fact, he did not, then I
have told a lie. But suppose I say that
I think (believe or opine) that the victim's death was a suicide, based on the
facts of the case. My opinion might be
highly improbable (or unreasonable), given that the victim had a bullet in his
heart, but it would not be a lie. When someone
makes a factual assertion, they are claiming that the assertion is true. When someone asserts an opinion, on the other
hand, they are only claiming that the assertion is reasonable. Although experts frequently offer opinions,
they also assert facts. For example, an
expert might make factual assertions about his credentials, his data (published
or unpublished), and articles he has read.
An expert who asserted a false factual claim about his credentials would
be lying.
What does it mean to
make reasonable inferences? An inference
is reasonable if it is a conclusion that is well supported by one’s evidence or
assumptions.[53] The evidence could be evidence produced in
court or evidence from one’s own research or experience; the assumptions could
be one’s principles or theories. Since
experts may appeal to different evidence or assumptions, or they may draw
different inferences from the same evidence and assumptions, two experts could
draw contradictory inferences that are both reasonable. For instance, one expert could testify that a
victim was struck with a blunt instrument, while a different expert might
testify that the victim was not struck with a blunt instrument. The mere fact that the two experts disagree
is no indication that one of the experts is drawing an unreasonable
inference. Experts can disagree. There mere fact that an expert adopts a
minority view is also no indication that the expert is drawing an unreasonable
inference, since minority viewpoints can still be reasonable. An expert makes an unreasonable inference
only when he/she draws an inference that no expert would draw, given the
evidence and assumptions.
When experts testify
about the standard of care, are they testifying about facts or offering
opinions? To see why testimony about the
standard of care should be regarded as opinion, consider the legal implications
of interpreting testimony about the standard of care as factual. If two experts offer contradictory statements
about the standard of care, then one of the experts must be lying or making a
mistake, since they cannot both be telling the truth. Thus, in every case where experts disagree
about the standard of care, at least one expert will be acting illegally,
unethically, or incompetently, which would be absurd and unworkable. No expert would testify in court if he/she
thought that he/she could be convicted if perjury or disciplined by a
professional body on the basis of contradictory testimony by another expert.
At a deeper level,
one might argue that expert testimony is opinion testimony because statements
about the standard of care do not describe facts. Statements about the standard of care are
normative (or prescriptive) statements about how physicians ought to behave,
not descriptive statements about how physicians tend to behave. Normative statements do not describe facts
about the world; instead, they reflect our commitments, goals, and ideals. To explore this question in adequate depth,
one must examine the relationship between facts and values, which would take us
far beyond the scope of this paper.[54] For now, this paper will assume that
statements about the standard of care are opinions, not statements of
fact.
Thus, we can define
unethical expert testimony as: (1) false or deceptive testimony; (2)
unreasonable testimony.
Many critics of the U.S. legal system have charged that expert witnesses often give
biased testimony as a result of their financial interests in the case.[55] Expert witnesses often have financial
relationships to the parties in the case, who may reimburse witnesses for their
expenses and pay them a fee for their services, which may include time for
preparation, travel, and testimony.[56] Although it is not illegal to pay a witness a
huge sum of money, the American Bar Association's (ABA) Model Rules require that lawyers pay expert witnesses a
reasonable payment for services, and the Rules also forbid contingency fees,
i.e. a fee based on the outcome of the case.[57] A lawyer who violates the ABA rules could be sanctioned by the ABA or by his state licensing board. In addition, if a lawyer pays a witness for
specific testimony in a quid-pro-quo fashion, this conduct could be construed
as bribery.[58]
Despite these
limitations on payment, critics charge that many witnesses are no more than
“hired guns” who go from case to case offering testimony. Even though legal rules forbid bribery and
ethical standards forbid contingency fees, witnesses can earn a supplemental
income or a decent living by testifying repeatedly in certain types of
cases. If a witness provides valuable
testimony that helps a party to win a case, then he may secure an offer to
testify in another case. The sum of
money that an expert can earn in a case depends on his “reasonable” fee and the
number of hours that he works. It is not
at all unusual for an expert to earn more than $200 an hour, and some earn as
much as $500 an hour.[59] If the expert spends 40 hours on a case, he
could earn from $8,000 to $20,000. Fees
paid to experts in some case range from $25,000 to a veterinarian to $177,888
for an accountant.[60]
Scholars have
proposed a variety of different methods for dealing with problems relating to
financial biases in expert testimony, such as developing organizations that
certify and credential expert witnesses[61], and
increasing the use of court-appointed witnesses or neutral witness panels.[62] One might argue that the actions by the NCMB
(and the AANS) also could help to curb problems relating to biased expert
testimony, although neither organization has alleged that Lustgarten had any
financial bias in the case in which he testified.
This essay will not
explore the issue of financial bias in any significant depth, since this
inquiry would take us too far astray.
However, it is important to introduce this problem in order to provide
the reader with some additional context for the NCMB's actions against
Lustgarten, and to distinguish between biased testimony and incompetent or
unethical testimony.
We can define “biased
testimony” as testimony that is skewed, slanted, or interpreted toward a
particular conclusion or viewpoint. For
example, a medical expert receiving a substantial fee from a plaintiff might
offer testimony that is biased in favor of the plaintiff’s case. Since bias involves an interpretation of the
facts, testimony can be biased without being incompetent or unethical. Biased testimony can be competent because a
competent expert may have his or her own biases, and biased testimony may still
aid the trier of fact. The trier of fact
may benefit from hearing two opposing, but biased, viewpoints. Since biases often occur subconsciously, one
could offer biased testimony without deliberately lying or misleading the trier
of fact. Moreover, a biased inference
might still be a reasonable one. Of course,
expert testimony could be biased and also incompetent or unethical, but it is
important not to draw the conclusion that biased testimony must be incompetent
or unethical. (As we shall see later,
the legal system has a means of dealing with biased testimony.)
5. How the Legal System Deals
with Incompetent or Unethical Expert Testimony
The U.S. legal system already has a variety of procedures and
strategies for dealing with incompetent or unethical expert testimony. As mentioned earlier, judges have the
authority to bar incompetent expert testimony from the courtroom. If a judge makes a mistake and allows an
incompetent witness to testify, or a competent witness makes a mistake and gives
incompetent testimony, then the opposing party has the opportunity to overcome
this problem.
First, the opposing
party may cross-examine the witness.
Both sides in any trial have the right to cross-examine all witnesses,
including expert witnesses. During
cross-examination, the opposing counsel can require the expert to disclose
facts and data that support his testimony; the opposing counsel can use
passages in published treatises and articles to attack the expert’s testimony;
and the opposing counsel can also ask questions about the financial interests
and potential bias of the expert.[63] An opposing party may also impeach the
testimony of an expert witness by showing that he has made prior statements
that are inconsistent with his testimony.
For example, an opposing counsel could impeach the testimony of an
expert by showing that statements provided in a deposition are inconsistent
with statements made in court. An
opposing party could also impeach a witness by questioning his character or
even his mental capacity.[64] Second, the opposing party can call its own
witnesses to provide testimony that contradicts or undermines the testimony of
the other party.[65] If the experts disagree on a particular
factual claim or opinion, then the trier of fact will have to determine who has
the correct view. Third, if the opposing
side loses the case, it can challenge the judge’s decision to admit the
incompetent testimony in an appeal to a higher court. Fourth, the court has the authority to remedy
potential problems with expert testimony by appointing its own experts, such as
a special witness or an expert panel.[66]
The criminal law also
has ways of responding to problems with expert testimony. If an expert witness gives unethical
testimony during a deposition or in court, then he or she may be liable for
perjury. A witness may also be subject
to criminal charges if a judge finds the witness in contempt of court. Black’s
Law Dictionary defines perjury as “the act or instance of a person’s
deliberately making material false or misleading statements while under oath.”[67] Federal law defines perjury as willfully
testifying under oath to any material matter that ones does not believe to be
true.[68] Most state statutes follow the common law
definition of perjury as intentionally giving testimony under oath that one
believes to be false.[69] These definitions all include three key
elements: 1) perjury is deliberate or intentional; 2) perjury involves making
false statements; 3) the statements are material, i.e. they have some
connection to the consequential facts of the legal proceeding. These definitions provide different
interpretations of the mental state required for perjury: under federal law,
perjury is asserting a statement that one does not believe to be true; under
state laws, it is asserting a statement that one believes to be false. There is an important epistemological
difference between not believing that something is true and believing that it
is false, since one may be indifferent to the truth or falsity of the
statement. In some ways the federal
definition creates a more exacting standard, since it punishes people for
asserting statements as true when they simply do not know whether those
statements are true.
The definition
of “perjury” is similar to the definition of “dishonest testimony,” discussed
earlier. First, perjury involves some
element of intent: perjury is more than a mere honest mistake. Second, perjury does not apply to mere
differences of opinion. If a person
asserts that a statement is only his belief or opinion, then he could not be
charged with perjury because he would not be asserting that his statement was
true. To commit perjury, one must assert
that a statement is true, when one either believes that it is false or does not
believe that it is true. If a witness
adds that qualifier “this is only my belief or opinion,” he should be protected
from perjury.[70] Thus, the definition of perjury maintains the
crucial distinctions between dishonesty and honest mistakes, and between
dishonesty and differences of opinion.
However, one difference between dishonesty and perjury is that perjured
testimony must be material to the case, whereas dishonest testimony need not be
material.
6. Should Licensing Boards or Professional
Associations Address the Problem of Incompetent or Unethical Expert Testimony?
As we have just seen,
the U.S. legal system already has a variety of procedures and
strategies for dealing with incompetent or unethical expert testimony. This naturally raises the question: is there
even a need for licensing boards or professional societies to address this
problem? Aren’t the currently existing
legal remedies enough?
One might argue that
the currently existing legal remedies are not sufficient to handle the problem
of incompetent or unethical expert testimony.
This appears to be the position adopted by several organizations,
including the NCMB, the AANS, and the AMA.
What kinds of arguments can these associations mount in favor of their
decision to adopt policies that attempt to respond to this problem? First, the organizations could argue that the
legal system fails to weed out incompetent and unethical testimony because
judges sometimes make mistakes, witnesses do not always perform as expected,
and juries are very poor at weighing and evaluating expert testimony: an
unethical or incompetent expert could easily persuade the jury, even if the
opposing side cross-examines and impeaches the witness. Second, prosecutors may be too busy to take
their time to bring up witnesses on perjury charges, especially since perjury
would be very difficult to prove in expert witnessing. An expert witness will not be liable for
perjury when he renders an opinion, but only when he makes a statement of
fact. Thus, the threat of perjury does
not constitute a significant deterrent for most experts. Finally, the organizations could also claim
that it is their social responsibility to set ethical standards for expert
witnessing, given the role of professions in society. The public expects that expert witnesses will
testify competently, ethically, and objectively. To protect this public trust, it is necessary
to adopt rules for expert witnessing and impose sanctions on
rule-breakers.
The following are
some guidelines adopted by the AANS:
“Expert” testimony should reflect not only the
opinions of the individual but also honestly describe where such opinions vary
from common practice. The expert should
not present his or her own views as the only correct ones if they differ from
what might be done by other neurosurgeons.
An expert should be a surgeon who is still engaged in the active
practice of surgery or can demonstrate enough familiarity with present
practices to warrant designation as an expert.
The neurosurgeon should champion what he/she believes to be the truth,
not the cause of one party or another.
The neurosurgeon should not accept a contingency fee as an expert
witness.[71]
The
AMA has adopted the following standards:
As a citizen and as a professional with special
training and experience, the physician has an ethical obligation to assist in
the administration of justice. If a patient who has a legal claim requests a
physician’s assistance, the physician should furnish medical evidence, with the
patient’s consent, in order to secure the patient’s legal rights. Medical
experts should have recent and substantive experience in the area in which they
testify and should limit testimony to their sphere of medical expertise. Medical witnesses
should be adequately prepared and should testify honestly and truthfully to the
best of their medical knowledge. The
medical witness must not become an advocate or a partisan in the legal
proceeding. The medical witness should be adequately prepared and should
testify honestly and truthfully. The attorney for the party who calls the
physician as a witness should be informed of all favorable and unfavorable
information developed by the physician’s evaluation of the case. It is
unethical for a physician to accept compensation that is contingent upon the
outcome of litigation.[72]
