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

Washington Monthly, June, 1987 by Blake Fleetwood

Without pricey experts, John Hinckley wouldnever have copped an insanity plea for shooting the president. Eleven psychiatrists canvassed Hinckley's mind during the 52-day trial, including Harvard psychiatrist David Baer, who was paid $35,000 for his efforts. There may have been merit to Hinckley's case, but few ghetto kids could hire a Ph.D. to make their case in court.

The same problem arose in the Baby M case.Was it fair that the Sterns could summon witnesses to analyze Melissa's patty-cake technique, while Mary Beth Whitehead could not respond with a salvo of her own, save for the few witnesses who helped her gratis. "Custody cases are a real problem,' said one public interest lawyer. "It's just hard to afford the clinical psychologists or physicians who will testify that the poor parent is competent.'

One Detroit psychiatrist, Dr. Emanual Tanay,simply refused to testify on behalf of a murder suspect in Kalamazoo County, Michigan for "slave wages' of $150 per day. Eventually Tanay showed up, carrying his report in a tape recorder. His testimony was played, but the doctor wouldn't answer questions as a matter of principle. The judge cited him for contempt, but his ruling was later overturned by an appeals court. Dr. Tanay testified that if he didn't get paid his customary fee, he couldn't pay his two secretaries and his office overhead.

While individuals can hire talented experts tomake their points, corporations can bankroll teams of witnesses to testify on their behalf, especially in product liability suits. For instance, A.H. Robins hired physicians to defend its Dalkon Shield IUD against charges that it maimed the women who used it. One of those hired, Dr. Lewis Keith, a professor of obstetrics and gynecology at Northwestern University, testified on the device's safety at a trial in Tampa, Florida. When attorneys asked him whether he had done any "hands on' studies of the IUD, he replied that he had. That snippet of testimony proved crucial; Robbins's lawyer played it like a harp in his final summation, telling the jury that "the best test had been done under the auspices of Dr. Keith' and that the cumulative evidence vindicated A.H. Robbins. The jury believed him and dismissed the $12 million suit. Robbins would never have been found guilty save for one mistake. When the case went to an appeals court in Atlanta, Georgia, Keith answered the same question, saying he had only looked at the notebooks of those who had done the tests. The Atlanta court, concluding that Keith had lied, overturned the verdict. For his testimony, Keith earned $277,092.

Consequences not truth

To be sure, there is a noble side to experttestimony. We should be glad that clannish loyalties no longer prevent physicians and other professionals from testifying against one another. Expert testimony can be a way of keeping them accountable. And many experts who take the stand do so with integrity. In the sex discrimination case against Sears, Roebuck, two scholars of women's history, Professors Alice Kessler Harris of Hofstra University and Rosslyn Rosenberg of Barnard College, squared off in what observers of all political stripes acknowledge was a committed, honest debate about what constitutes sex discrimination. There was nothing fuzzy around the edges; both said under oath what they had long maintained in their academic treatises. It was Rosenberg's first case, and she said she wouldn't take another "unless the right one came up and I could be clear.'