Expert Peer Review Can Pick Up Where Expert Testimony Leaves Off
In complex class actions, an expert witness is necessary to substantiate or refute a claim made by the plaintiff or defendant. Although usually a reliable source of information, an expert witness may have ulterior motives that call his or her testimony into question. For instance, the witness might omit relevant details, misrepresent certain facts, cherry pick scientific literature, or attack legitimate expert counterpoints using strawman arguments that non-experts would be unable to distinguish as such because of the complexity of the subject. Expert peer review sets a high standard for testimonial accuracy, thereby preventing misrepresentation of the facts.
Often, an expert witness is called upon to essentially translate complex aspects of the case for a layperson to understand. He or she can do this through visual, auditory, and/or modular representation. These modes of communication tend to be evocative by nature and thus quite convincing to lay audiences, such as a judge or jury. But what exactly is "lost in translation" when a witness oversimplifies or uses compelling metaphors and other representations to explain a topic? Peer review can help challenge misleading opposing testimony, because peers have more a sophisticated understanding of the subject.
Many class actions lead to what's known as a "battle of the experts." What this means is both plaintiff and defendant employ experts from similar fields with similar credentials espousing opposing views. A recent report from IADC members indicated that a result of the so-called battle of the experts "is that the district courts consider only plaintiff's expert testimony for certification purposes and reserve the effectiveness of defendants' expert for trial on the merits." For example, in In re Disposable Contact Lens Antitrust Litigation, a Florida federal district court stated that despite the defendants' expert's challenging of the "methodologies and conclusions propounded" by the plaintiffs' expert, it was "no reason to deny class certification."
The Role of Expert Peer Review
This last case cited illustrates why expert testimony is often not enough to make or break a class action suit on its own, especially from the perspective of the defendant. Even though the SCOTUS has not adopted a view regarding expert admissibility at the class action stage, Justice Scalia was skeptical that Daubert did not apply in Dukes v. Walmart, stating “we doubt that is so.” Until there is certainty, it behooves litigators to fill in the gaps for judges when it comes to conflicting experts. Expert peer review can pick up where expert witnesses fall short by vetting experts and providing the judge with an accurate, complete, and unbiased picture of the matter in question.
To achieve this goal, JuriLytics uses an advanced process that assembles 3-5 independent scholars with excellent, relevant credentials to analyze expert opinions. The justice system relies on expert testimony for good reason. But the “fact checkers” themselves need to be “fact checked.” We propose that litigators now have the chance to help courts, and in the process, serve their clients better.