The key problem with the use of expert witnesses is that the jury is asked to
determine the credibility of the expert testimony presented. In the typical case,
plaintiff and defendant both have experts whose testimony conflicts. The
conflict may be subtle, or simple and direct: the plaintiff’s experts in the breast
implant litigation say that silicone causes autoimmune disease and that
women with implants have a high incidence of autoimmune problems. The
defense says it does not and that women with implants have no more
problems with autoimmune diseases than does a control group. The jury, of
course, has been selected to ensure that no jury members have any special
knowledge of medical epidemiology or autoimmune disease. They must
evaluate highly technical, conflicting testimony to determine billions of dollars
in liability.
Jurors cannot evaluate the scientific merits of such testimony. They have no
alternative but to judge the testimony of expert witnesses based on the
personal credibility of the witness. Positive factors such as academic degrees,
specialty board certification, and publications influence credibility. So do factors
such as physical appearance, race, gender, command of English, and
personality. For an expert witness, the foremost qualifications are effective
presentation and teaching ability. The expert must educate the jury in the
technical matter at hand, just as he or she might educate an undergraduate
physiology class. The objective is to convince the jurors that they understand
the technical issues. Once there is a perception of understanding, the expert
can convince them that they are making an independent decision that his or
her testimony is correct, rather than just agreeing with him or her.
The risks of this system are that scientifically or medically unsound evidence,
presented by credible-appearing witnesses, can supplant proper evidence.
[Huber PW. Galileo’s Revenge: Junk Science in the Courtroom. New York: Basic
Books; 1991.] There are legal rules that establish the standards that judges
are to use in determining whether an expert should be allowed to testify and
the extent of that testimony. Judges are charged with ensuring that this does
not happen by excluding the testimony of experts who are not properly
qualified, or whose testimony goes against known scientific principles. [Federal
Rules of Evidence Rule 104, 28 U.S.C.A.] Judges, however, are not any more
scientifically knowledgeable than most jurors, and are subject to the same
misunderstandings as jurors.