Medical Expert Witness Confusion: Insight into the Limits of Medical Expertise from the Fight Over the U.S. Dietary Guidelines
It should come as no surprise that many complex litigation matters are decided not based on which attorney best understands the laws, or how impressive the opening and closing arguments are to the jury. Instead, when a decision goes before a jury - whether it be an IP case, a complex tort matter, and so on - that jury is often considering which side’s expert witnesses made the most compelling arguments and withstood cross-examination without losing credibility.
Many experts sound great on paper and even in person, but they must be prepared to withstand the other side’s scrutiny of the basis for their testimony and other evidence. The fragility and susceptibility of expert reports was highlighted by a recent BMJ investigation into the expert report underlying the 2015 U.S. Dietary Guidelines, which found that the report was misleading and unsupported.
The Expert Report
The U.S. releases nutrition guidelines every five years to provide Americans with what is supposed to be unbiased and reliable advice on nutrition for adults and children. A team led by journalist Nina Teicholz found, however, that the 2015 guidelines failed to incorporate relevant scientific literature in 70% of the topics it covered, and thus failed to properly consider any evidence that contradicts nutritional guidelines from the past 35 years.
The report in question was produced by a dietary guidelines advisory committee of experts and then reviewed by federal health and agricultural agencies. Due to unprecedented public concern, Congress proposed a requirement that the guidelines be based on "strong" science without consideration for sustainability. The investigation further revealed that the committee paid no attention to established analytical methods, including using the Dept. of Agriculture's Nutrition Evidence Library (NEL) to conduct systematic reviews when selecting and evaluating relevant studies.
More than 70 percent of nutrition topics included in the recent report did not use NEL reviews, relying instead on systematic reviews of external professional associations, including a heavy focus on the American Heart Association (AHA). Since these groups are held to different standards and receive financial support from food and drug companies, the materials they produce can be problematic and reflect certain conflicts of interest.
For instance, the American Heart Association (AHA) has long promoted the cardiovascular health benefits of vegetable oil products, while simultaneously receiving decades of financial support from the manufacturers of these same products. Meanwhile, the American College of Cardiology (ACC), also heavily represented in the report, reported receiving 38 percent of its revenue from industry in 2012 alone.
Implications for the Courtroom
If corporate interests and poor vetting practices can even influence a report as far-reaching as the U.S. Dietary Guidelines, there's no reason to expect a more rigorous and reliable result from expert witness testimony. And while a team of investigators may or may not descend on any given report released by the government, you can be sure that the other side in your litigation matter will descend on your experts and their reports with as much scrutiny as possible.
JuriLytics will help you find the potential issues in your expert reports before the other side brings them out in front of your jury. A thorough peer review of your expert medical witness can effectively weed out conflicts of interest and insufficient evidence before they affect your case. Contact JuriLytics today to find out how we can be of service in presenting your case.