Expert Witness Blog

Dr. Andreas A. Theodorou, a pediatric expert witness, testified that the 2005 death of a 16-month-old child likely stemmed from a deliberate violent injury. Emily Mays died in Aug. 24, 2005, while in foster care. Her injuries included a subdural hematoma, or bleeding on the brain. The foster parents told authorities that Emily hit her head when she fell against a changing table in their home.

As reported in the Tuscon Citizen, the expert witness testified:

“The force it takes for a subdural hematoma is substantial, like falling several stories, being flung to a wall or a high-speed auto accident. It’s not caused by rolling off a changing table or by a linear fall of a few feet.”

The Indiana Supreme Court was scheduled to hear arguments last week on whether state courts should be required to pay for translators to assist defendants who do not understand English. This brings up an interesting debate as to whether state courts should be required to pay for expert witness fees as well.

Many state courts, including Indiana, will pay for some expert witness fees for defendants who cannot afford them. This is usually the case when the defendant is represented by a public defender. When the defendant has his or her own private attorney, most courts will not allow the state to pay for expert witnesses. As stated by one judge, “if you can afford your own attorney, you can afford your own expert witnesses.”

Expert witness should conduct necessary tests and investigation, and not just rely on others or risk being excluded. In Mitchell v. Gencorp, Inc., 165 F.3d 778, 779 (10th Cir. 1999), the plaintiff contended he had developed leukemia from regularly working in an unventilated room where hazardous materials were stored. The court excluded the industrial hygienist expert, noting that the expert merely studied photographs of the room and material-safety data sheets listing the chemicals stored there. The expert “never visited the flammable room and conducted no air tests to demonstrate [the plaintiff’s] level of exposure to the chemicals. Moreover, he did not attempt to re-create the level of exposure through computer modeling.”

It is commonly understood that despite the fact that one party retained and paid for the services of an expert witnesses, experts are supposed to testify impartially in the sphere of their expertise. See Selvidge v. U.S. 160 F.R.D. 153. However, the court in Wilson v. City of Chicago stated that the Federal Rules of Evidence do not require experts to be impartial. (6 F.3d 1233, 1238).

If experts are not advocates, at the very least they advance the cause of the party that retained them – otherwise they would not be there. By the time of the trial, the retaining attorney knows how the expert will testify. It is unlikely that the retaining attorney would call the expert if the expert did not testify in favor of the retaining party.

Prosecutors in the Phil Spector murder case filed a motion requesting the defense team be ordered to disclose the fees that Spector’s 13 expert witnesses are being paid before they take the stand in the music producer’s trial.

In papers filed with the court, prosecutors claimed they had previously asked Spector’s attorneys to see “fee schedules, billing schedules, invoices, canceled checks, cash payments, per diem payments, employment contracts and any other documentary or oral evidence of remuneration or compensation of any form made to each of your experts.”

In an email dated March 15, 2007 that prosecutors attached to the motion, Spector’s attorney responded that the prosecution’s request for financial records was “an appropriate one for cross-examination.”

Many argue that the Daubert reliability test is important because expert witness testimony is uniquely vulnerable to bias. Those in this camp argue expert witnesses differ from lay witnesses, because experts are retained to advance the cause of one party in an adversarial proceeding.

Courts have consistently reiterated than expert witness’ duty is not the retaining party, but to the court and finder of fact. See Kirk v. Raymark Industries, 61 F.3d 147 (“Experts are not agents of the party hiring them.”) However, some argue that even if experts are not “consciously” biased, they are “unconsciously biased.” As stated by Judge George Jessel: “There is a natural bias to do something serviceable for those who employ you and adequately remunerate you.”

However, even if the expert is biased, does this translate into unreliable testimony? After all, both sides have their own “unconsciously biased” experts (if not consciously biased). Many would argue that the Daubert reliability test will not prevent biased experts from testifying.