Harnessing Expert Peer Review to Win: Building Upon the Silicone Implant Litigations


In analyzing issues of scientific integrity in the courtroom, it is important to keep in mind that almost everyone, attorneys and judges alike, agree that adversarial bias in expert testimony is the largest problem facing the system. Cross-examination of experts traditionally has been the check on this bias. However, given its zero-sum nature (i.e. both sides use it), judges and juries alike often get more confused after the dust has settled. In using neutral experts, problems abound in determining how experts are selected, what their roles are, and how parties can be effectively protected from their undue influence. Interestingly, these same issues, more or less, manifest already in science itself – and yet almost every scientific community has turned to and tuned the peer review process to inject scientific validity into the system. Now, it is time to do the same in the legal system, where to problem is further magnified by the adversarial process.

Blind Experts - A Rational Strategy?

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The use of expert witnesses in litigation is something all litigators know to be commonplace. Some estimates suggest that roughly 30% of ALL federal cases use experts. Some types of cases (mass torts, environmental law, etc.) have almost mandatory requirements for using expert witnesses.

Litigators also know that a good expert has a couple of essential traits that really go beyond the actual expertise. An expert must be credible to a jury, who in complicated cases, may not fully understand the science being presented, but must still make a decision of enormous consequence. In the same vain, the expert must be confident in the courtroom. Juries generally find waffling and imprecise explanation to be a sign of weakness, and accordingly discount an expert’s testimony.

Yet, a third, and perhaps most critical, factor can make a difference in a jury’s perception of expert testimony: bias. How does a jury come to terms with two experts who disagree on fundamental questions of science, and who they perceive as being paid to testify? Indeed, it is precisely this bias that requires an expert to be credible and confident – juries have no other way of “breaking the tie.”

When is Science Obvious in the Courtroom?

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After more than five years in litigation, the New Mexico Court of Appeals ruled recently in Firstenberg v. Monribot. Mr. Firstenberg sued Monribot, his neighbor, for being affected by her use of electronics including cell phones, WiFi, etc. within the confines of her own home. He claimed that he is sensitive to electromagnetic radiation through a disorder called electromagnetic sensitivity (EMS). After a long, winding road through the district court, the Court of Appeals affirmed the district court's ruling that Firstenberg's experts were not reliable, and that Monribot should therefore be granted summary judgment. The case was dismissed.