THE EXPERT WITNESS IN AN ADVERSARIAL SYSTEM
by Marvin and Mark Jacobs, Jacobs Associates

In an adversarial system of justice such as ours, where the truth is supposedly discovered in the crucible of conflicting points of view, litigants hope to gain a decisive advantage by presenting expert testimony at trial. Product litigation – especially cases involving technical subject matter like elevators, escalators and moving walks – often becomes “a battle of the experts.” In these cases, both plaintiffs and defendants hire specially qualified witnesses to explain to the court and jury why certain vertical or horizontal transportation equipment was or was not defective, or how the building owner or maintenance company was or was not negligent, and whether there was compliance or noncompliance with American Society of Mechanical Engineers (ASME) A17 Codes.

In such a system, the notion of well-qualified experts coming into court and giving diametrically opposed opinions about the same subject matter has become so commonplace that for decades few courts gave the matter much thought. To most scientists, engineers and elevator people – and indeed to anyone outside the narrow world of American civil litigation – the idea is appalling. How can two experts look at the same facts, the same elevator equipment and consistently, emphatically disagree? Can it be that the process of litigating disputes, not the product or even the incident, promotes the conflict? Do the partisanship and financial interests inherent in litigation stand in the way of a broader consensus among the experts?

These questions have become an increasing concern for the courts and spawned a broader inquiry. Are otherwise thoughtful rules addressing the admissibility of evidence undermined by the latitude, indeed the deference, most courts extend to expert witnesses? Has an understanding of the civil litigation system become more important than the technical matters the witness is explaining? Are the results of trials determined by manipulating unknowing fact finders with testifying skills having little to do with a valid technical presentation? These questions strike at the heart of our civil justice system: Are the courts producing sound decisions through a process aimed at finding the truth?

In this article, we will examine the crucial role that experts play in technical litigation, look at the recent trend in our courts to try to exclude untrustworthy expert testimony, and suggest how reliable mechanical engineering practices, the ASME Codes, and new ideas of standardizing risk assessment for future code development could be used by the courts to rein in mercenary experts.

What is an expert witness? And why have expert witnesses come to play such a central role in the trial of technical cases like personal injury or property damage cases involving elevator and escalator equipment?

The law defines an expert witness as a person with special knowledge, skill, experience, training or education in a subject that is beyond the common experience of the jurors. No one of these qualifications has particular weight or priority over others. For example, formal education is no more important – and for practical reasons may even be far less important – than hands-on experience when it comes to qualifying as an expert in an elevator or escalator case. A service mechanic is almost always better qualified as an expert in elevator cases involving maintenance issues than a engineer or physicist with a Ph.D. whose only prior experience with elevators is acquired from riding in them.

Whether a witness is qualified to testify as an expert is a decision for the trial judge. Some judges look hard at the qualifications of an expert before allowing the jury to hear the expert’s testimony. More often, judges will sidestep a critical evaluation of the witness’s qualifications, permit the witness to testify as an expert and tell the jury to consider the expert’s qualifications when they decide how much weight the testimony should receive.

Why are experts so crucial in a product liability case? The expectation is that experts’ opinions will assist a jury in understanding and deciding the facts of a case. But their indispensability is explained by one simple rule of evidence: The expert witnesses are the only persons in the courtroom entitled to offer opinion testimony to the jury.

Most witnesses in a trial are not permitted to give their personal opinions to the jury except in a rather bland, narrow range of subjects concerning their perceptions; things like an estimate of size or speed, or a description of colors, or an approximation of the amount of time an event may have taken. These are matters of commonplace, daily observation. They are not what we usually think of as opinions; and in most cases involving elevators, escalators and moving walks, they do not get at the central questions of fault in the case of an injury-producing accident.

Lawyers too are prevented from giving their personal opinions to the jury. Even in closing argument – the part of the trial where the lawyer has almost free rein to recap, explain, analyze, analogize, spin and argue the meaning of the evidence – it is improper for a lawyer to personalize his remarks by telling the jury how he or she would resolve the evidence.

In the U.S., unlike England, even judges are prevented by the Canons of Judicial Conduct from disclosing their personal impression of the evidence to the jury. In many jurisdictions, at the beginning or conclusion of the trial, the judge tells the jury that they should not interpret any of his or her statements or rulings as a comment on the evidence.

Only an expert is allowed into our courts to express opinions. Thus, for example, physicians give their opinions about the nature and extent of a plaintiff’s injuries, future disabilities and costs of treatment, and so forth. In the cases we are discussing, experts come to court to give their opinions about a claim of malfunctioning equipment. What, if anything, was wrong with the elevator that caused it to mislevel? What caused the handrail to stop? Was there a defect in design or manufacture in the equipment? How was the equipment inspected, maintained and tested? What does the service history disclose?

The subject of vertical and horizontal transportation equipment is outside of the common understanding of the court and the jury. As a consequence, the courts recognize there is great value in opinions that will assist the jury in resolving a dispute concerning equipment and activities with which they are technically unfamiliar. Without the advice of skilled experts in the field, the jury will have no basis to develop sound independent opinions on the subject matter being presented to them.

The selection of an indispensable witness who will have a lot to say about the outcome of a case is as important as any decision that will be made in a case. Experts, like the lawyers who try cases, are not fungible. Because different sides in the lawsuit will have experts testifying, to present more credible, solid expert testimony will often be the decisive asset in product liability litigation.

In the late 1980s, increasing concern developed about the corrupting influence of expert witnesses who would come into court to give testimony dictated by the interests of the client rather than by good science or solid engineering. In a 1990 speech, Chief Justice William Renquist of the U.S. Supreme Court decried the fact that the central role and importance of the expert witness had led to a system of justice in which the opinions of the experts themselves were increasingly untrustworthy. In 1991, the phrase “junk science” was coined to describe the charlatanism that characterized so much of the expert testimony in our courtrooms. Peter Huber, in his book Galileo’s Revenge, began to focus debate within the judiciary and among lawyers about the necessary and proper role of the expert witness.

The subject of “junk science” in the courtroom inevitably centers on a 1993 case called Daubert v. Merrell Dow Pharmaceuticals. That case, which went through the appellate system to the U.S. Supreme Court, involved a plaintiff born with crippling birth defects that he claimed were the result of Bendectin, a drug manufactured and marketed by Merrell Dow and taken by his mother during pregnancy. The plaintiff was supported by the testimony of a toxicologist – a paid expert witness – who testified that in her opinion there was a causal link between Bendectin and plaintiff’s birth defects. Relevant toxicology, epidemiology and medical research that had been performed at the time stood opposed to any such connection. The trial court excluded the toxicologist’s testimony, finding that it went against the weight of accepted opinion in the scientific community. The trial court granted judgment in favor of Merrell Dow. The plaintiff appealed.

When the issue reached the Supreme Court, it was framed in a broader, more philosophical context: What should be the role of the court in protecting the jury from junk science? The Supreme Court answered: The role is that of the gatekeeper – and the object is to protect the jury from unreliable scientific opinion testimony.

The Supreme Court emphasized that the focus of the trial court’s scrutiny must be on the methodology employed by the expert, not an evaluation of the ultimate opinions the expert reached. In other words, the role of the trial court is to ensure that the expert did his or her work in accordance with accepted scientific standards. If that foundation is established in the expert’s testimony, then the jury is entitled to hear the opinions the expert has reached.

In reviewing the Daubert trial on appeal, the Court of Appeals and the Supreme Court formulated the factors to take into account in determining if an expert’s work is the product of good science and whether to accept or exclude scientific expert testimony:
1) Is the theory or technique employed by the expert generally accepted in the scientific community?
2) Has it been subjected to peer review and publication?
3) Can it be and has it been tested?
4) Was the theory developed for purposes of litigation, or before the litigation commenced?

In the Federal Court system and many state courts, the Daubert analyses and the direction established by the Supreme Court is controlling. The trial judge is required to evaluate the methodologies used by experts in developing their opinions. Since Daubert, the most common application of the trial court acting as gatekeeper has been in the areas of medical causation, toxicology and epidemiology. The same approach also finds easy application in other areas of hard science. The trial court can ask:
• Is the scientific methodology reflected in scholarly journals?
• Has the opinion been subject to a scientific peer review process?
• Are scientific principles accepted by a majority of the relevant scientific community reflected in the opinion evidence?

Can these same ideas be applied in elevator, escalator and moving walk cases? If it needs to be said, there is no less interest in safeguarding juries from the corrupting influence of unsupportable expert testimony in an elevator or escalator case than in Bendectin cases and no less need. But how can the Daubert principles be made to apply in cases in which the expert’s opinion come largely from professional experience and training rather than the carefully documented methodologies of some scientific disciplines? What are the tools a trial judge can rely upon in functioning as a gatekeeper?

These are questions that courts throughout the country are currently wrestling with. Do the Daubert principles apply in cases where the expert testimony applies engineering analysis? Or practical inspection, testing, maintenance or repair procedures? It should come as no surprise that the courts have not come up with a uniform answer.

In a small minority of states and Federal Court jurisdictions, engineering testimony is put through the careful gatekeeping analysis the Daubert case requires of judges in medical science cases. Most courts, however, have declined to apply the Daubert gatekeeping principles beyond the area of so-called hard science. And by hard science the courts typically refer to biology, toxicology and medical research. Almost all jurisdictions that have considered this question have observed that the absence of explicit criteria for the courts to use makes it difficult or impossible to apply the Daubert principles in engineering cases – in fact many of these courts have loosely referred to technical engineering evidence as “non-scientific” opinion testimony.

In cases involving a mechanical or electrical engineering analysis of equipment design – and even in cases involving service and sequential troubleshooting in the field – there is value in the application of the Daubert philosophy. In vertical and horizontal transportation litigation it may indeed be possible for courts to judge the methodology used by an elevator expert to formulate his or her opinions. The ASME A17.2 Inspector’s Manual represents a standard engineering methodology and, therefore, could become a means of testing the foundational methodology of an elevator or escalator expert’s opinions. Similarly, future codes based on a risk assessment model under development by the International Organization for Standardization (ISO)/the International Electromechnical Commission (IEC) may provide standardized methodology that has a valuable application in the courtroom.

The Code also provides tools to help the courts decide, at the outset, whether a witness indeed possesses sufficient qualifications to give opinion testimony based on an inspection of elevator or escalator equipment. ASME Qualified Elevator Inspectors (QEI)-1 has as its stated purpose the establishment of “uniform criteria” for inspecting to determine compliance with ASME A17.1, ASME A17.3 and A17.5. The qualifications required of an inspector are comprehensively defined, and there is no basis in reason to require anything less of an expert. If the courts apply this test, we will see more qualified elevator people and fewer jack-of-all-trades “accident reconstructionists” testifying about this specialized equipment.

If an expert witness has opinions to give regarding compliance or noncompliance with ASME A17 Codes, or defective products, or negligent service, that testimony will go a long way in deciding the outcome of a lawsuit. The tools are there. The courts can and should require a more solid foundation for those opinions than the needs of the client in a particular case.

If the courts require expert witnesses to follow procedures that are established as a National Standard and which many Qualified Elevator Inspectors use, perhaps elevator litigation may begin to move away from the gamesmanship of partisan expert battles, where paid experts can come into court and give the jury virtually any opinion they can concoct. Why not make the litigation experts use testing and inspection methods that reflect solid design and performance principles? Why not make them use the industry’s most considered consensus concerning necessary safety standards? When the court realizes it can function as a gatekeeper in our cases too, a rule of reason will be applied to our product liability litigation.

Make no mistake: The courts will still rely on expert witnesses to guide the jury and there will always be points that produce disagreements between qualified experts. But there is no reason that lawyers should not endeavor to adapt the methodologies of the ASME A17 and ISO/ IEC Code systems to recent developments in the law. Perhaps such efforts will rid elevator, escalator and moving walk cases of carpet-bagging, generic, accident reconstruction experts, and juries will learn about the workings of this specialized equipment from experts who are well qualified and whose opinions are based on sound mechanical engineering and proven industry practices.

Marvin and Mark Jacobs are the Managing Partners of Jacobs Associates, a San Francisco, California law firm. Jacobs Associates and its predecessor firm have specialized in elevator and escalator product liability litigation for over 50 years. The firm also consults with manufacturers and service companies to establish or update risk and litigation management programs and to advise on insurance questions.
Jacobs Associates© 1998

View More EW Online Extras

Return to Home page