The Biased Expert Witness in Louisiana Tort Law: Existing Mechanisms of Control and Proposals for Change

• Author: W. Raley Alford, III
• Position: Recipient of the Vinson & Elkins Best Student Casenote or Comment Award, 1999-2000

Recipient of the Vinson & Elkins Best Student Casenote or Comment Award, 1999-2000. The author wishes to thank Frank L. Maraist, Nolan J. Edwards Professor of Law, Louisiana State University, for the patience, encouragement and guidance he contributed throughout the many stages of this paper's development.

I Introduction

In a particularly colorful closing address, a lawyer once offered a jury the following insight:

We [lawyers] have our own way of talking about witnesses. And one thing that we very often say and talk about is the three classes of liars. There is the plain liar, the damn liar, and the expert witness. And of all of them, the expert witness is the worst.¹

While this characterization of the expert witness can be dismissed as theatrical,² it nevertheless has an echo of credibility today that it may not have enjoyed 60 years ago when it was delivered. In the intervening years, courts and commentators have witnessed the rise of "professional" experts who confer with attorneys and testify at trials with such frequency that they derive a significant portion of their income from providing these services.³

Because the "universe of experts is defined only by the virtually infinite variety of fact questions in the trial courts,"⁴ the ranks of professional experts are ever increasing. This proliferation has resulted in the creation of the expert-advocate who, lured by the prospect of a substantial fee, testifies in conformity with the needs of the principal who engages him.⁵ The natural tendency of parties with interests adverse to those of the principal has been to counter testimony perceived as biased with "hired guns" of their own. The result is a "battle of the experts" in which outcomes at trial are all too often dependent on which party's expert has the greatest impact on the jury.⁶ As proclaimed by a former president of the American Bar Association, "I would go into a lawsuit with an objective, uncommitted, independent expert about as willingly as I would occupy a foxhole with a couple of noncombatant soldiers."⁷

While the present concern over biased expert testimony is well placed, it must nevertheless be acknowledged that the marketability of expert testimony is directly influenced by the needs of litigation and by admissibility standards.⁸ Put simply, expert testimony is often essential.⁹ Cases in the areas of toxic tort and products liability have risen to such a level of scientific and technological complexity that triers of fact have come to rely on expert testimony both to understand difficult facts and to determine what inferences can correctly and comfortably be drawn from those facts.¹⁰ This reliance is by no means limited to the cases that garner headlines. In even the most common personal injury actions, medical experts explain injuries, economists quantify damages and engineers reconstruct accident scenes.¹¹ To ensure the availability of such testimony, it is admissible in court if it will "assist the trier of fact."¹² To further encourage the participation of experts in the judicial process, courts traditionally afford the expert witness absolute immunity from a defamation action based upon his in-court statements.¹³ This protection from liability reflects the historical view that witnesses are "friends of the court" who come forward to "assist in the attempt to achieve justice."¹⁴ However, the modern expert-advocate has challenged, if not obliterated, this amicable view and necessitated an increase in appellate supervision of trial court decisions on the admissibility of expert testimony.¹⁵

Tort law has provided the landscape upon which recent battles over the admissibility of expert testimony have been fought. ¹⁶ Of primary concern has been the protection of parties from biased or "suspect" expert testimony. For the benefit of comparison with national developments, as well as to avoid the constitutional issues raised by expert testimony in the criminal arena, this comment examines issues surrounding the biased expert witness in Louisiana tort law and, more specifically, the protections afforded litigants under the law and by the courts.

Part II will discuss the challenges the expert witness presents to the jury system. Part III will address existing methods of controlling biased expert testimony. Part IV will assess the effectiveness of existing safeguards, while Part V will consider two current proposals for correcting abuses. The comment will conclude with a determination that heightened vigilance on the part of trial judges and a modification in the testimonial immunity of the expert witness are the best solutions to the problems presented by the biased expert witness.

II The Expert Witness And The Jury

In the modern adversarial system, the jury is "ideally both an unbiased and an uninformed fact-finding body whose members... give their verdict solely on the basis of the evidence presented at trial."¹⁷ For a variety of reasons, expert testimony challenges the traditionally celebrated ability of lay jurors to sift through opposing arguments and bring a fair resolution to a controversy.

First, expert testimony differs significantly from lay testimony with respect to both substance and form. Under the Louisiana Code of Evidence, a lay witness may testify only as to matters within his "personal knowledge."¹⁸ The personal knowledge rule is clearly consistent with the modern institutional arrangement, wherein jurors form opinions, while witnesses provide the facts.¹⁹ Thus, opinion testimony by lay witnesses generally is excluded from evidence as irrelevant or incompetent.²⁰ Expert testimony, on the other hand, is admissible in the form of an opinion.²¹ In further contrast with the lay witness, the expert may base his testimony on matters not within his personal knowledge.²² This wide latitude not only makes it easier for experts to qualify to give testimony, but also equips them with tremendous power to influence a jury.²³

Second, because the expert testifies to matters beyond the knowledge of the jury, the jury is ill-equipped to meaningfully evaluate the merit of the expert's opinion.²⁴ Therefore, as one commentator has observed, "there is a great tendency, or at least a temptation, for the trier of fact to take the expert's recitation of facts and opinions as truth and adopt those recitations as its own."²⁵

The tendency of jurors to abdicate their ultimate duties can be attributed, at least in part, to the "apparent objectivity" of the polished expert witness.²⁶However, within the context of the "battle of the experts," jurors are frequently left to choose between two contending experts whose opinions seem equally plausible or "objective."²⁷ When jurors are faced with this situation, they are likely to resort to the same criteria they employ in assessing the credibility of lay witnesses.²⁸Thus, considerations of demeanor, personality, appearance and communication skills will determine not only which opinion is accepted, but often the outcome of the litigation.²⁹

Finally, unlike lay witnesses, the expert receives a fee for preparation and testimony provided in court.³⁰ In and of itself, the compensation of the expert merely reflects that the time spent preparing for or testifying in court is time spent away from the expert's customary professional endeavors. However, lawyers today are keenly aware that an expert's showmanship may be at least as important as the substance of his testimony.³¹ This awareness has generated a profitable market for the services of the expert-advocate, as lawyers jockey for the "best" expert possible.³² The product contemplated in this market is not the independent exercise of professional judgment, but rather charismatic testimony to a pre-ordained conclusion.³³ Lawyers, then, have used their ability to compensate expert witnesses to integrate them into the litigation team.³⁴ An expert who does not advance the interests of the team through his testimony is not likely to be retained again.³⁵Consequently, many experts who testify in courts today have a financial stake in the outcome of the litigation, which inevitably results in a decrease in the reliability of their testimony.³⁶

The challenges presented by the biased expert to the jury system are "not merely of academic or hypothetical concern."³⁷ For most litigants, "the only day in court of consequence is the one spent at the trial court level...."³⁸ This is so because an appellate court may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong."³⁹ Litigants, then, are "occasionally justified in their concern that a well-heeled party can obtain its version of justice at the trial court simply by retaining an arsenal of 'hired guns' to prove its case, particularly in the context of a jury trial, then rest on the [manifest error] line of defense."⁴⁰ The rise to prominence of biased experts and the danger that their testimony will carry "undue weight" with a jury demand the attention of the courts.⁴¹ As stated by the United States Court of Appeals for the Fifth Circuit in Eymard v. Pan American World Airways:⁴²

[T]he professional expert is now commonplace That a person spends substantially all of his time consulting with...