REPORT OF THE BOARD OF TRUSTEES
B of T Report 5-A-98
Subject: Expert Witness Testimony
Presented by: Thomas R. Reardon, MD, Chair
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INTRODUCTION

This informational report is submitted in response to recent House of Delegates actions addressing expert witness testimony. At the 1997 Interim Meeting, Resolutions 211, 216, and 221 were introduced by the Illinois, Florida, and California delegations, respectively. All three resolutions called upon the American Medical Association (AMA) to adopt policies that expert witness testimony be considered the practice of medicine and be subject to peer review. They also requested that the AMA study mechanisms by which peer review could be conducted.

The reference committee which considered these resolutions recommended that the AMA adopt Substitute Resolution 211 in lieu of Resolutions 211, 216, and 221. In essence, the Substitute called for the AMA to declare false testimony intolerable and agree to assist medical societies in disciplining physicians who testify falsely by reporting these physicians to state licensing authorities. It also asked the AMA to study whether expert witness testimony should be considered the practice of medicine subject to peer review. If
so, the AMA should study how such peer review could be implemented nationwide. In an amendment, the House of Delegates
asked for the results of the study to be reported back at the 1998 Annual Meeting. Substitute Resolution 211 was adopted as amended.

Subsequently, Resolution 221 was extracted and also adopted. Resolution 221 called upon the AMA, without further study, to adopt policy that expert witness testimony be considered the practice of medicine subject to peer review. It also requested that the AMA study mechanisms by which such peer review could be conducted, with a report due at the 1998 Interim Meeting.

Therefore, current AMA policy is that expert witness testimony is the practice of medicine subject to peer review. The AMA is now studying mechanisms by which peer review of expert witness testimony could be conducted, and a report is being developed for the 1998 Interim Meeting. This report provides a brief summary of AMA policies and current activities on expert witness issues.

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DISCUSSION

Achieving a balance on medical expert witness issues is difficult. This difficulty stems in part from the differences between getting at the "truth" in law and the "truth" in medicine. In the art and science of medicine, "truth" is determined by empirical testing. Statistical significance is required to show that an association between an intervention and hypothesized result is not due to mere chance. Law reflects "relative justice;" i.e., while science evolves, the courts evaluate a plaintiff's claims considering all relevant evidence existing at the time of trial. The plaintiff has the burden of proof. If the plaintiff can prove his or her claim by preponderance of the evidence, or with more than 50% certainty, then damages are awarded. Thus, a plaintiff often may be awarded damages for prevailing in an issue that cannot be proven with scientific certainty.

Because medicine is both a science and an art with a dynamic body of knowledge, theories held by a minority of the medical community may not necessarily be "junk science," and instead could be an evolving scientific consensus. Courts have to allow for this sort of testimony, which may not meet the formerly applied "general acceptance" test first announced in 1923 in Rye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

The Supreme Court has established that, consistent with the Federal Rules of Evidence and contrary to the "general acceptance" test, trial judges must evaluate expert scientific testimony "at the outset." The analysis should focus on whether the testimony constitutes "scientific knowledge that . . . will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 (1993). Applying Daubert means the judge must ensure that the evidence is relevant under Federal Rules of Evidence 403, 703, and 704, through the application of a deeper and more detailed preliminary review of scientific claims than most courts previously have undertaken.

Courts should be encouraged to have meaningful requirements for establishing the foundation for expert testimony in court. This includes requiring that the expert have practiced in the field at issue in the case. Being a licensed physician in and of itself should not be sufficient to qualify as an expert in every case.

AMA ACTIVITIES ON EXPERT WITNESS ISSUES
The AMA has long been involved in issues regarding expert witness testimony. Though the range of advocacy activities on expert witness issues is broad, perhaps the most notable advocacy efforts have taken place in the courts. In 1992, the AMA and numerous medical specialty societies participating in the AMA/Specialty Medical Liability Project (AMA/SSMLP) filed an amicus curiae brief in the U.S. Supreme Court case, Daubert, discussed above. The AMA/SSMLP brief argued that the Federal Rules of Evidence require judges to make a determination that expert opinion offered by a party is based upon scientific knowledge, as shown by publication in peer-reviewed journals or by other reliable indicators of sound scientific methodologies. Since the Daubert decision, the AMA has tracked court decisions regarding scientific testimony and intervened when appropriate.

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In 1997, the AMA filed an amicus curiae brief in a U.S. Supreme Court case involving scientific testimony, General Electric v. Joiner, 118 S.Ct 512 (1997). The AMA's brief argued that to determine whether expert testimony is based on scientifically valid reasoning and methodology properly applied to the facts in issue, the trial court must examine the substance of the proposed testimony. If it is difficult for the judge to evaluate the evidence, the Courts should be encouraged to exercise a power that they have, but seldom
use: the ability to retain their own nonpartisan expert under Fed. R.of Evid. 706. In situations where there are partisan experts on either side, the court-appointed witness may be able to provide the objective view needed to help a jury reach a good decision.

In GE v. Joiner, the plaintiff, an electrician and a smoker who worked for years around electrical transformers, claimed he developed lung cancer from exposure to PCBs from the transformers. The plaintiff supported his case with two expert witnesses whose study of baby mice found a possible association between PCB exposure and cancer. The trial judge, simply applying his discretion, excluded the testimony of these two expert witnesses. In December 1997, the Supreme Court's decision in GE v. Joiner supported the judge’s discretion and authority to dismiss "expert testimony" that presented scientifically invalid and questionable support of claims of injury. The Supreme Court reaffirmed the trial judge’s discretion to exclude these studies and proffered evidence that is not relevant under the Federal Rules of Evidence.

The AMA believes the proper application of the Rules of Evidence will help sift out expert witness testimony that is unreliable. It is important for judges to be allowed to apply standards for determination of evidence that is admissible, rather than to allow unreliable evidence before juries, who may not be able to sift out the "junk science" from evidence which is scientifically valid.

AMA POLICY ON EXPERT WITNESS TESTIMONY
AMA's concerns and recommendations regarding physician testimony are succinctly set forth in CEJA Opinion E-9.07, which states:

* As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist with the administration of justice,

* The medical witness must not become an advocate or a partisan in the legal proceeding,

* The medical witness should be adequately prepared and should testify honestly and truthfully,

* The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician's evaluation of the case, and

* It is unethical for a physician to accept compensation that is contingent upon the outcome of the litigation.

The AMA encourages physicians to recognize their ethical duty as learned professionals to assist in the administration of justice by serving as experts. According to the Federal Judicial Center, physicians and other medical experts represent the largest proportion of expert witnesses testifying in at least half of all federal civil trials. (Similar data not available from state courts.)

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CONTINUED PROBLEMS WITH EXPERT WITNESS TESTIMONY
Some expert witnesses develop theories of medicine or causation that are not sufficiently grounded in medical science. Generally, there is an economic incentive to do so. Income derived from expert witness testimony can be substantial. Although the AMA has deemed it unethical, fees can be earned on a contingency basis where the expert or "consulting firm" he or she works for earns more if the case is won. Economic incentives can color the nature of the physician expert's testimony.

Despite ethical guidelines and judicial discretion to exclude testimony that is not scientifically valid, “junk science” still finds its way into court through unchecked testimony of physicians. Examples abound regarding the continued problems of false and/or misleading physician testimony. A recent article, "Irresponsible Testimony by Medical Experts in Cases Involving the Physical Abuse and Neglect of Children," written by Drs. David L. Chadwick and Henry F. Krous, demonstrates that physicians as professionals have tremendous responsibilities, as do the trial judges, to ensure that scientifically valid information is considered in the judicial process. The article presents several examples wherein physicians misquoted standard journals and texts, made false statements, and deliberately omitted important facts and knowledge as it pertained to the expert opinion offered. Physicians who engage in such conduct lead to poor decision making by our judges and juries. Expert witness testimony should be an objective resource to these persons.

Several medical and specialty organizations are working to deter false testimony. For example, the Florida Medical Association (FMA) has developed a program by which physicians who falsely testify are reported to the state licensing board for discipline. The AMA is currently is studying programs like the FMA’s.

CONCLUSION
Both the judiciary and physicians play a role in ensuring that scientifically valid information becomes part of the judicial process. Though the admissibility of expert witness testimony clearly is the function of the judiciary, physicians should comport themselves in a manner consistent with professional ethics and responsibilities. The AMA currently is studying appropriate mechanisms by which to review physicians who do not meet professional standards of conduct, and will report back at the 1998 Interim Meeting.

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