Personal and cognitive biases are major issues in challenging expert witnesses and their opinions. Discovery is an important opportunity to explore substantive issues, but some time should be allocated to inquiring about biases. Unfortunately, many lawyers inquire about fees and income and stop. At the end of a case, the jury will have heard that all the expert witnesses, typically, are charging for their time, and the jury’s initial shock at exorbitant fees will subside. Finding more revealing biases than income should be one of the goals of a pre-trial deposition.
One question that I try always to ask of expert witnesses is whether they have any friends or family members who have been injured by a product, and especially my client’s product. You never know until you ask.
Here is how the inquiry went with one expert witness in the field of history:
Q. Has anyone in your family or any close friend ever in your belief been injured by a product?
A. Well, this would only be my own belief. I don’t know that this is true. I have no specific knowledge of it.
Q. Sure.
A. It was never brought to court, but I believe my father was.
Q. In what way?
A. Well, he always had a very bad cough and he had always been very — he had been exposed as a worker in many different conditions to various dusts.
Q. What kind of dusts?
A. I have no idea. He worked in a foundry. He worked in a steel mill.
Deposition Transcript at 32:7-23, taken in Mendez v. American Optical, 342d Judicial District, District Court of Tarrant County, Texas (July 13, 2005)
In insurance coverage cases, I have asked defense expert witnesses whether they have advised family members against using products, the safety of which was at issue. Again, on more than one occasion, I have elicited testimony that family members were using the product and had no ill effects. In each case, the expert witness for the defendants withdrew rather than testify at trial about why they permitted a close relative to use the product, which they had maligned in their litigation opinion. Here is the Q&A in a deposition of one frequent testifier:
Q. By the way, has anyone in your family or any of your friends ever been implanted with a silicone medical device?
A. Yes.
Q. And does that have any significance in your reaching your opinions?
A. No.
Q. Is it a friend or a family member?
A. Family member.
Q. In your view, did that family member sustain any harm as a result of the silicone implant?
A. I have no comment to make about that. There have been no complaints and no difficulties. So, so far, I can’t answer the question. I’m not her physician.
Q. Does that person have a legal suit involving the silicone medical device?
A. No.
Deposition transcript at 19-20, in Claus v. Cooper Surgical, Inc., California Superior Court for San Diego County, JCCP-2754-00243, and Santa Clara County, No. 922061 (Dec. 6, 1994). The “cold” record does not capture the witness’s discomfort. The deposition was not concluded, and the witness withdrew rather than continue with his advocacy. See also Deposition transcript in Medical Engineering v AIU Insurance, 58th Judicial District, District Court for Jefferson County, Texas (Feb. 6, and 7, 1997).
Moving beyond the obvious financial incentives for expert witnesses, there are many other sources of potential and actual bias. Injuries and diseases among family members and friends are just the beginning. Memberships in advocacy groups, political organizations, and special-interest professional associations are other issues to be discovered and explored. Many expert witnesses have signed on to amicus briefs that have taken tendentious positions in high-profile cases. Beware of advocate expert witness opinion testimony.
