COMMENTARY
Bloom & Buell's

WHO WANTS TO BE AN EXPERT?

Not every expert who testifies in a legal action is as candid as the psychologist from California who said from the witness stand in Middlesex Superior Court that "I'm not here to use common sense.  I'm here as an expert."  Such candor would only confirm those in and out of the legal profession who regard testifying experts as the most unprincipled of hired guns, prepared to sell their expertise gladly to whoever pays their fees and expenses.

Still, there is this pesky fact that many issues before courts these days need some explaining by someone who knows what he or she is talking about.  That this insight is acknowledged only grudgingly by the legal establishment comes out in the routine admonition of judges to juries that they may believe all of an expert's testimony, some of it, or none of it.

Comes now a pair of cases that pretty much demolishes the image of the expert as the lone hired gun who rides into court and singlehandedly sets the laymen straight about what is what.  Both cases, decided by the Massachusetts Supreme Judicial Court, say that an expert cannot just get up on the stand and say that the facts are such and such and that his opinion is good.  The decisions, and the reasoning behind them, stress that such opinions must either have been shaped by methodology that the relevant scientific community considers sound and appropriate, or that these opinions are grounded in irrefutable logic.  Moreover, both rulings say, in effect, that an expert witness had better stick to what he or she knows.

The most recent case, an appeal from a conviction of rape and sexual assault, decided last March, deals with the controversial topic of recovered memory.  A psychiatric social worker, called as an expert, testified that sometimes rape victims, especially children, will suppress the memory of such a traumatic experience and then have it resurface later, sometimes after intervals of years.  The victim testified he had been raped when he was 14, had suppressed the experience, and was not able to summon up the traumatic incident until more than three years had passed.

The expert witness, called by the prosecution, testified that there is such a thing as dissociative memory in which the victim at first denied that all this was happening to him and that he, as it were, was taking himself out of himself.  The expert, however, admitted on the stand that there was much controversy around recovered memory and that the subject was not completely understood.

The SJC had been prepared to examine the witness's testimony in light of the so-called Lanigan standard.  This is a standard established in yet another rape case where DNA evidence was challenged. The high court at first threw out the conviction because the prosecution introduced testimony to the effect that the likelihood of a person other than the defendant having the DNA found on the victim was on in two million, a figure not universally accepted by scientist.  However, when the prosecution came back with evidence acceptable to the scientific community - that the odds ranged from on in 108,000 to one in 300,000 - the SJC agreed to let that expert testimony stand.  In doing so, the court said that there need not be unanimity in the scientific community, just a reasonable agreement.

But in the case of the victim with the recovered memory, the high court did not get to that topic.   It drew the line when the expert, who had no appropriated medical training, testified about brain scans, so-called PET scans, that are said to show how memory is stored in the brain. A new trial was ordered, but not before the SJC chided the judge for examining the expert's qualification before the jury.  This, said the SJC, might suggest that the judge himself found the expert credible.

The second case dealt with the testimony of an expert before an administrative judge who ended up accepting his opinion that a former nurse had become disabled by being exposed to various vapors in the operating room, among them ethlylene oxide, formaldehyde, and diesel fuel.  This, the expert said, brought on the symptoms attributable to so-called multiple chemical sensitivity, or MCS.  The administrative judge's ruling passed the Industrial Accident Reviewing Board and, after the hospital that employed the nurse appealed, it was upheld by the state's Appeals Court.

But the SJC reversed the decision, saying that the lower bodies had not applied the aforementioned Lanigan standard as they should have.  Specifically, the court said, the testifying physician had shown no generally acceptable methodology that would have supported his diagnosis of MCS, nor had he made a persuasive argument that the various chemicals he had implicated in the nurse's ailments could be linked to them.  The court noted that under cross-examination, the expert admitted that there was uncertainty about what caused MCS and acknowledged that the symptoms could be rooted in genetics, metabolism, stress, or toxic exposures and that the cause and effect might differ from person to person.

The lesson, then, would seem to be that if a court admits an expert's opinions, it better be safely within the accepted scientific standards and/or buttressed by such tight logic that one would look foolish in refusing to believe it.