From the people who brought you the twinkie defense; the rise of the expert witness industry

Washington Monthly, June, 1987 by Blake Fleetwood

Little surprise, then, that law and medicalschools offer classes on how to deliver testimony. At the University of Virginia, Paul Elliot Dietz, a professor of law and psychology, teaches his medical students how to testify. One of his most important points: stress your credentials. "A jury may be more impressed to know that someone is an instructor of psychiatry at a local nursing school than they are to know that someone is an assistant professor of psychiatry at a leading medical school,' he said. "Juries sometimes think that an assistant professor is an assistant to the professor.'

Does all the money and coaching pay off?Consider the case of Philadelphia psychic Judith Haimes who won a $1 million verdict from a jury after she claimed that the dye used before a CAT scan had damaged her powers and prevented her from making a living. A parade of specialists, including a doctor and several police department experts, took the stand to support her claim. Eventually, Judge Leon Katz threw out the verdict and ordered a new trial, calling the jury award "excessive.'

Expert witnesses were also pivotal in DanWhite's infamous "Twinkie Defense.' White was able to avoid a murder conviction in the killing of George Moscone, mayor of San Francisco, and Harvey Milk, the city supervisor, after psychiatrists claimed that he suffered "diminished capacity' from wolfing too much junk food. The experts testified that sugar caused a chemical imbalance in his brain; the jury bought it.

It is not just juries that can be snowed by thetestimony of a slick expert witness. A. Morgan Kousser, an expert witness and history professor at CalTech who defended his work in an article, "Are Expert Witnesses Whores?', notes that judges are just as susceptible, particularly when the topic is technical. "Many weren't that good at math or science or statistics,' he said, "that's why they went to law school.'

Expert witness testimony certainly impressedJustice Marvin Shoob of the U.S. District Court in Georgia. In 1981, Shoob, sitting without a jury, ruled that the Ortho Gynol contraceptive cream caused birth defects in a newborn child. He awarded $5 million to the baby's parents. That would have been fine except that the overwhelming consensus among doctors--who weren't getting paid for their opinions--was that there was "no connection' between the drugstore spermicide and birth defects. The New England Journal of Medicine blasted Shoob, lamenting that "courts will not be bound by reasonable standards of proof.' Millions of women bear the cost of Judge Shoob's decision every time they pay more for the contraceptive.

Slave wages

Like any expensive service, the well-off havegreater access to expert witnesses than the rest of society. Sure, in personal injury cases, like the Dow Chemical catastrophe in Bhopal, India, there's no dearth of attorneys waiting to serve the poor and serve themselves. But in most cases where the stakes are lower--only the lives and health of those involved--attorneys and their hired experts are not so altruistic.