A new breed of hired gun: in today's legal system, you not only need the best lawyers money can buy - but also the best expert witnesses

Washington Monthly, April, 1997 by Preston Lerner

In today's legal system, you not only need the best lawyers money can buy--but also the best expert witnesses

Carmen Mistich was tootling down St. Bernard Highway just outside New Orleans when a full-size pickup truck traveling at least 40 mph faster than her Volkswagen plowed into the back of her car. Mistich wasn't wearing a seat belt, and as the VW rolled over, she was hurled through the rear window. Two months later, she died as a result of her injuries.

The accident could have happened anywhere, anytime. But this being America, the most litigious nation on the planet, Mistich's heirs hit Volkswagen with a product liability lawsuit. And this being the '90s, they were able to find not one, not two, but three experts willing to testify that Mistich died because the design of her car's seat anchorage system was flawed.

Never mind that she wasn't wearing a seat belt; that the Volkswagen performed better than most cars in its class in a federal study of seat anchorage systems; that the accident, on its face, had all the makings of a textbook fatality: massive, fast-moving truck smashes into a tiny, nearly stationary car. A no-brainer, right? Hardly. As one cynical attorney puts it, "You can hire an expert to say just about anything."

The star witness in the case against Volkswagen was a self-proclaimed automobile design expert named Byron Bloch, who testified that the Volkswagen seat was "a unique aberration in design ... the weakest, minimalist seat anchorage ever put in a production car...the worst seat anchorage system ever."

And who exactly was Byron Bloch, and why was he qualified to say these terrible things about Volkswagen?

According to court records, he'd been dismissed from one collegiate engineering program, was placed on academic probation by the electrical engineering and industrial design departments at a second college, then ended up getting a B.A. from a third school. He was laid off from his first job after three months, fired from his second after six months, fired from his third after less than a year and released from his fourth after two years. When he embarked on a career as a consultant/expert, often testifying against Volkswagen, he hadn't worked on a single job involving automobiles, much less engineering.

Despite the defense's strenuous objections, Bloch was permitted to testify as an expert witness. "He has been qualified by courts across the land," the judge ruled, "and I do not presume that all of them were incorrect." Partly on the strength of Bloch's damning testimony, the Mistich family won its suit against Volkswagen and was awarded damages in excess of $2 million. Justice is blind all right. And sometimes, it would seem, deaf and dumb.

The Mistich case highlights one of the most vexing currents in the American legal system: the growing reliance on expert witnesses, and the absence of clear-cut standards regarding their expertise. "When you've got $3 billion product liability lawsuits being decided on the strength of junk science that's just wildly out of whack with objective reality, and when you've got people being sent to Death Row because some lunatic shrink says he can predict "future dangerousness" on the basis of some criteria known only to him, then, yeah, you've got a problem," says Peter W. Huber, author of the psychological impact reformers had hoped to see. Fewer people are including reliance on welfare in their plans for the future.

There is also good news from some states that are acting to soften the law's horrible features. For example, New York and 39 other states have asked for at least partial waivers of the requirement that food stamps for the unemployed be limited to 90 days.

The bad news is that way too little is being done about providing health care for the working poor, including those who leave welfare and then lose their Medicaid when they get jobs as we urge them to do.

At least Bill Clinton has proposed health insurance for the 5 million children of the working poor. But Republicans are opposing even this modest program. Their position seems to be, in the words of my friend Matthew Miller, "that insuring kids is just the camel's nose under the tent, the beginning of the slippery decline into socialism. Why, if we insure poor kids today, they argue, look out: Before long, every American may have decent healthcare coverage!"

The problem is not going to go away. Indeed, according to a recent study reported by Elisabeth Rosenthal in The New York Times, the problem is growing: "One quarter of New York City residents under 65 now have no health insurance at all: the exact figure is 24.8 percent, up from 20.9 percent five years ago....The number of children without insurance has gone up twice as fast as the number of adults."

One state, Massachusetts, has done something about the problem. It has enacted the Massachusetts Children's Medical Security Plan, which insures children whose parents earn too much to qualify for Medicaid but too little to pay for private health insurance. The program, financed by a 25-cent-a-pack increase in the cigarette tax, was enacted over the veto of the state's Republican governor, William Weld.