Over at The Green Bag, Judge Richard Posner published “What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part I.” The article is quintessential Posner: concise, expansive, forceful, and packed with good and bad ideas with minimal supporting citations.
Let’s focus today on his arguments about Federal Rule of Evidence 706:
A big problem with jury trials is that often they involve technological or commercial issues that few jurors understand (not that many judges understand them either) and that the lawyers and witnesses are unable or unwilling to dumb down to a level that the jurors would understand. There is a solution to this problem, however, though one that few judges employ: appointment by the judge of an expert witness (thus a “neutral” expert, by virtue of not having been selected by the lawyer for one party to the litigation). The authority to make such an appointment is explicitly conferred on federal judges by Rule 706 of the Federal Rules of Evidence, but is alien to the Anglo-American judicial culture, in which the witnesses in a case are designated by the lawyers rather than by the judge.
The fault is the culture. Our legal culture, in contrast to that of most countries in the world (notably Japan and the nations of Continental Europe), is “adversary,” in the sense that the judge is the arbiter of a contest–a drama, really – put on by the lawyers for the contending parties. . . .
Id. at 190 (hyperlink added). Judge Posner has been beating that drum for over twenty years now. See, e.g., Indianapolis Colts, Inc. v. Metro. Balt. Football Club Ltd., 34 F.3d 410, 414-415 (7th Cir. 1994). The chorus seems to be growing louder. Five years ago, the American Bar Association published an article summarizing much of the federal court precedent on the issue, and suggesting wider use. Three years ago, one of the experts appointed by Judge Posner wrote his own article in support. Last year, Pennsylvania trial judge Bradford H. Charles (Lebanon County) wrote a thorough law review article in favor of the practice.
As Judge Richard Kopf points out, the use of “independent” experts goes against the grain of most judges, and there are more than a few practical problems with the concept:
While I suppose there might be an exception, no sane federal trial judge would appoint his own expert in 99% of federal criminal cases. Unless both parties agreed on the expert and the specific role of the expert, such an appointment would result in the judge injecting himself or herself too far into the adversarial nature of criminal trials and, far worse, possibly diminishing the government’s obligation to prove guilt beyond a reasonable doubt.****
****I proposed using my own expert in the bench tried second partial birth abortion case that made it to the Supreme Court because I blew up the ridiculous federal statute. I told the truly extraordinary lawyers for both sides that I was thinking of appointing an independent expert obtained through the AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE using that organization’s Court Appointed Scientific Experts (CASE) program. Neither side thought it was a good idea. I also considered the logistical problems if I decided to proceed and concluded that I was likely to make a mistake on how I handled the court appointed expert. For example, could I confer with the expert privately? Would I question the expert at trial? Would the parties have a right to depose my expert? Who would pay? And so forth. I decided not to appoint an expert. As a result, I was required to teach myself more about gynecological matters than any man who is not a physician ought to know.
I agree with Judge Kopf, and I’d add to that: how am I supposed to effectively cross-examine an “independent” expert with research outside of the expert’s report? Usually, courts won’t allow the cross-examination of an expert with academic papers unless “the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.” See Fed.R.Evid. 803(18)(B). In other words, unless the expert agrees that my source is a “reliable authority” — which experts often refuse to do as a matter of habit — then I can’t use it as evidence unless I hire my own expert (something Judge Posner wants to avoid) or if I convince the court in its discretion to accept the paper, which the court then has to review on its own without the benefit of expert advice.
The United States Supreme Court hasn’t said much on the use of Rule 706 except through a concurrence by Justice Breyer in Gen. Elec. Co. v. Joiner, 522 U.S. 136, 149-150 (1997), which argued:
In the present case, the New England Journal of Medicine has filed an amici brief “in support of neither petitioners nor respondents” in which the Journal writes:
“[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authority . . . to appoint experts . . . . Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science.” Brief, supra, at 18-19.
Cf. Fed. Rule Evid. 706 (court may “on its own motion or on the motion of any party” appoint an expert to serve on behalf of the court, and this expert may be selected as “agreed upon by the parties” or chosen by the court)
And that’s my biggest concern: the absence of any truly “neutral” or “independent” or “impartial” experts. The New England Journal of Medicine is a great place to start: just last week, ProPublica and The Boston Globe published, “Amid Public Feuds, A Venerated Medical Journal Finds Itself Under Attack.” They don’t mince words:
[F]ollowing a series of well-publicized feuds with prominent medical researchers and former editors of the Journal, some are questioning whether the publication is slipping in relevancy and reputation. The Journal and its top editor, critics say, have resisted correcting errors and lag behind others in an industry-wide push for more openness in medical research. And dissent has been dismissed with a paternalistic arrogance, they say.
As the article outlines, the New England Journal of Medicine’s conduct lately is charitably described as bizarre, and more accurately described as brazenly biased. The editor-in-chief published a “widely derided” editorial last year that used the term “research parasites” to describe scientists who performed the most fundamental task of science, i.e., the attempt to analyze or replicate other studies. A study of the most prominent medical journals found that the New England Journal of Medicine routinely allowed ‘outcome switching,’ where the researchers behind an article add new measures to their study after it was performed, a practice which raises a host of issues about bias and prejudice.
The problem of bias in medicine is of course not unique to the New England Journal of Medicine; medical research is “broken.” Worse, judges are hardly in a position to root out these problems.
Consider WebMD. In WestLaw, I found nine examples of Judge Posner citing WedMD in support of his opinions. For example:
Injecting steroids or other drugs is sometimes suggested for treating back pain, see Web MD, Back Pain Health Center, “Injections for Back Pain Relief,” www.webmd. com/backpain/guide/back-pain-injection-treatments, but the administrative law judge offered no reason for thinking that it would have been appropriate for Voigt.
Voigt v. Colvin, 781 F.3d 871, 877 (7th Cir. 2015). Did Judge Posner rely on WebMD to decide whether or not injectable steroids were an appropriate treatment choice? The problem is, WebMD is by no means a trustworthy source. WebMD gets most of its funding from pharmaceutical and medical device companies, and several medical researchers “noted the lack of context around some of the site’s medical advice, as well as a smattering of misinformation,” including off-label promotion of anti-psychotics (including for the odious drug Risperdal, the same drug which Johnson & Johnson plead guilty for misbranding) and recommendations for treatments that weren’t evidence-based. As Julia Belluz wrote, “The site may be an okay starting point for information, like Wikipedia. But the information isn’t always reliable, and unlike Wikipedia, the site’s business model relies on the same industry it reports on.”
No field of science is safe from the influence of bias. Ever since the passage of the Bayh-Dole Act, which gave universities ownership of patents arising from federally-funded research, universities have been pushing hard to capitalize on that research — for example, Columbia University made over $790 million from the patent for inserting foreign DNA into cells, and New York University made over $1 billion from the patents leading up to the drug Remicade. The California Institute of Technology sold dozens of patents to the notorious patent troll Intellectual Ventures.
All of which is to say, as much as I recognize the problem with adversarial experts for each party looking like hired guns, the problem doesn’t go away with hiring “neutral” or “independent” experts — that just masks the expert’s potential biases under the veneer of judicial approval. Epidemiologist Ben Goldacre has been fighting bad science for years and, as he says, “real science is all about critically appraising the evidence for somebody else’s position, that’s what happens in academic journals, that’s what happens at academic conferences,” and that’s how it should be in court.