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The Illinois House committee is considering Bill HB1896, which would require pretrial hearing on the merits of any expert witness in a civil trial. Though the bill would apply to all civil litigation, the debate in the Illinois House committee will focus on medical experts in malpractice trials.

As stated in the St. Louis Post-Dispatch:

Doctors blame lawyers for filing what they see as frivolous lawsuits. Lawyers fault insurers, saying the companies raise rates and then blame the civil justice system.

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When one looks at the characteristics of attorneys, it becomes obvious that they do not spend a great deal of time finding the “best” expert witness:

1. Attorneys are middle persons who are controlled by the client. They will advocate the expert witness to the client, who ultimately pays for the services.

2. Attorneys are self-interested, in that they are concerned with how an expert appears to the decision maker (and you should be too).

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Viewing jail visitor lists is a common practice among prosecuting attorneys. But what happens when defense counsel asks an expert witness to visit a prisoner? Should that information be privileged? Courts have disagreed.

In California, one court denied the public defenders’ request to keep prosecutors from knowing which defense experts were visiting two men charged with murder. Judge Nancy Davis Stark stated: “”A prosecutor may not necessarily use (the information), but can keep it in his arsenal.”

However, in another California county, attorneys representing another man charged with murder and rape ifiled a similar motion. Judge John Kennedy ordered the Sheriff’s Department to seal the names of the expert witnesses who visited Kemp, saying they are privileged information.

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Philip Michels, a plaintiff’s lawyer at Michels & Watkins in Westwood, California, has written an excellent article entitled “Finding and effectively using experts in a professional medical negligence case.” The article appears in the April 2007 of the Advocate magazine, published by the Counsumer Attorneys Associations for Southern California.

In the article, Michels suggests one way to select medical experts is to match the defense experts specialty for speciality. As he states in the article:

“[Y]our have to be cautious about allowing the defense to have a specialist in an area that you do not have adequately covered. You can easily drop an expert witness; it is far more difficult to list an additional one.”

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U.S. District Judge Lowell Reed struck down a 1998 U.S. law that makes it a crime for operators of Internet sites to let anyone under 17 have access to sexual material, rebuffing the government’s argument that software filters are ineffective and upholding earlier rulings that the law infringed on free-speech rights. The testimony of software expert witnesses were key to the decision.

The judge agreed with the expert witnesses that filtering software was generally effective. He found that there are many products that allow parents to block sexually explicit material. Furthermore, the products were widely available and often offered free by service providers. He noted that even the government’s own expert witness concluded that software filters are effective, the vast majority blocking at least 95 percent of sexually explicit Web pages.

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West Virginia’s “Citizens Against Lawsuit Abuse” plans to ask the legislature to create a “code of ethics” to prevent “misleading expert witness testimony.” As reported in the West Virginia Register-Herald, a survey about expert witnesses was conducted by the the Center for Survey Research at the University of Virginia:

In its study, the center learned most doctors in West Virginia doubt the “expert” testimony if it is given beyond a physician’s specialty or is motivated by money. Sixty-four percent of doctors surveyed rated the overall quality of medical expert witnesses as “poor” or “only fair.” Only 27 percent felt it was “good.” And a mere 9 percent considered it “very good” or “excellent.” The survey found 72 percent had seen or heard testimony by a medical expert they felt was either in error or based on questionable science. All but 5 percent agreed that testimony as supportive diagnoses provided for a fee was tainted. A code of ethics was supported by 96 percent of the physicians interviewed in the University of Virginia research.

It should be noted that most in the survey would likely be facing a medical malpractice expert witness as opposed to working as an expert witness themselves. Also, most of the concerns of the doctors surveyed are addressed by the Daubert reliability test.

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Several medical expert witnesses and psychology experts are again expected to testify in the retrial of Daniel Ramsey of Keokuk, Iowa. His retrial began on Monday, April 2, 2007 in Lewistown, Iowa for the July 8, 1996, slayings of two girls. Ramsey was 18 when he was accused of the slayings, and 19 when he was first convicted and sentenced to death in 1997 by a Knox County jury. Ramsey’s conviction was overturned three years later, and it has taken seven years to start a new trial. The reasoning was that the insanity defense used in his first trial was later ruled unconstitutional. This will be the centerpiece of the expert witness testimony.

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Given the extreme importance of expert testimony to litigation, is the reliability test for expert testimony set out in Daubert v. Merrell Dow Pharmaceuticals the most radical and consequential change in the modern law of evidence? Before Daubert, most courts in most circumstances required only that an expert witness be at least marginally qualified to testify on the subject at hand, and that his testimony be relevant to an issue in the case. Many courts applied the general acceptance test set out in Frye to limited categories of scientific evidence, primarily in criminal cases. Even in Frye jurisdictions, generally testimony was allowed in most areas of expertise.

Many argue that the Daubert standard takes the issue of sufficiency of evidence and turns it into issues of admissibility. (See Richard D. Friedman: Squeezing Daubert Out of the Pciture) However, aren’t jurors and fact finders wise enough not to be misled by expert’s opinions? Those who ask this question would certainly point out that there are not similar reliability standards for lay witnesses, and for other types of evidence.

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Former Lt. Gov. Earle E. Morris Jr.’s appeal of his securities-fraud conviction has been bumped up to the South Carolina Supreme Court.

Morris, 78, was former board chairman of Carolina Investors. In November 2004, he was convicted on 23 counts of lying to investors during the Upstate firm’s financial collapse. He was sentenced to a 44-month jail term, or almost four years.

Morris appealed in part because one of his securities expert witnesses was excluded. He also argued that one of the state’s expert witnesses should not have been alowed to testify.

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As reported in Pennsylvania’s Times Leader, U.S. District Judge James Munley allowed gang expert witness Jared Lewis to testify as an expert witness at a Pennsylvania trial regarding the Illegal Immigration Relief Act. Lewis testified that the gang named “MS-13” had a presence in Hazleton, Pennsylvania, and was one of the most dangerous gangs in the world.

Lewis was allowed to testify even though he had minimal law enforcement experience, did not include any published authoritative works in his resume, and his expert report did not include any information based on gang statistics specific to the area. The court found that his area of expertise is not an area about which many authoritative books have been written.

Mike Cutler, a retired agent from the former U.S. Department of Immigration and Naturalization Services, is expected to testify as an expert witness for the defense, and is also expected to be the final witness in the trial.