"I Am Not a Doctor But I Play One on TV": An Essay/Review of Galileo's Revenge () by Peter Huber¹

Jack Zusman^*

ABSTRACT: Peter Huber's book, Galileo's Revenge, is reviewed and the problems with expert testimony are discussed.  Suggestions are made as to how to make expert witnesses more responsible and accountable.
  

"I am not a doctor but I play one on TV."  Most of us have seen the distinguished looking older gentleman in his white coat as he makes a pitch in a TV commercial for an over-the-counter medication.  That this commercial has run so widely across the country and for so long suggests its strong appeal.  The appeal plays upon the awe which most people have for scientists and physicians.  Indeed, the authors of that commercial are so sure of the power of the medical halo that after dressing their star in a white coat, they brazenly do not hesitate to begin his script with the truthful statement that he is not a doctor but only play acts as one.  They are confident that the strength of his image will overcome the truth of his words.

We live in an age where there is enormous respect for scientists but little for scientific knowledge.  The medication commercial makes no attempt to report scientific evidence of the superior effectiveness of the product (if any exists).  Rather it attempts to make the audience think that evidence must exist — after all, would the "doctor" dare to stand there looking so professional and speaking so authoritatively if he was not telling the truth?

The result is a competition among advertisers over scientific appearance or superficial believability rather than medication safety and effectiveness.  Fortunately (or unfortunately, depending upon your perspective) being a scientist requires more than putting on a white coat and having gray hair and a mustache.  Carrying out scientific procedures means adhering strictly to certain procedural rules and when those rules are followed the resulting conclusions are likely to be correct.  Certainly one of the key strengths of the American economy is the centrality of science.  Yet science is both expensive and uncomfortable to carry out.  The rules are hard to follow.  What a temptation it is to claim the benefits of science without having to endure the costs.

Such a shortcut is so attractive that sometimes even scientists engage in it.  But regardless of who attempts to benefit from the reputation of science while avoiding all of the scientific constraints, such a practice is expensive for all of us.  When the "facts" which are claimed to be "scientific" are revealed as false, the revelation reduces respect for science and confuses the large majority of the people who are not scientists.  They see they can no longer take for granted that something labeled as science is true.  The reputation and the language of science have been degraded.

Peter Huber has written an examination of this pseudo or "junk science" phenomenon as it occurs in the courtroom, particularly in civil trials such as negligence or workers' compensation.  Using court transcripts and appellate opinions, newspaper articles, anecdotes, and similar historical materials he has demonstrated very well how illogical and downright silly both judges and juries can be in some of the decisions they have made apparently in response to testimony by presumed scientists.

For example, one patient won payment for developing cancer of the jaw which he and his experts convinced a jury was from cutting his lip on a cardboard carton (Huber, 1991, p.47).  Another group of individuals was awarded $49,000,000 in damages for being exposed to chemicals from a nearby soap and cosmetics plant (p. Huber, 1991, p. 97).  The symptoms in question included "nerve damage and heart disease, brain damage and vomiting, kidney infections and headaches.  Young women reported interrupted menstrual cycles ... dogs, cats, cattle, chickens, parakeets and bee colonies died 'unaccountably and without signs of predation'."  One expert testifying for the plaintiffs in this case blamed the damage on the immune system being "functionally wiped out."  Though testifying as an expert on the immune system, he had never taken a course in immunology.  Another of the experts in this case failed his board exam in Internal Medicine five times and withdrew from the exam twice.  But he testified that he took the exam only once and later explained he had forgotten about the other times (Huber, 1991, p.92).

Then there was the $5,100,000 verdict against the Ortho company because its spermicidal cream was determined by a court after expert testimony to be at fault in causing birth defects (Huber, 1991,p. 174).  The testimony was apparently based on one study which suggested spermicides "might" cause birth defects and the authors of the study later essentially repudiated the findings.

In the context of this journal are a number of well-publicized cases where persons claiming mental health professional expertise of some sort had major roles in initiating and/or keeping legal actions going against presumed child abusers.  No matter how unlikely the charges or weak the scientific evidence, these experts were willing to swear to the truth of the charges solely on the basis of psychological findings or esoteric physical evidence not corroborated or considered valid by any other professional.  Some experts were willing to swear that children making abuse charges never lie, although a moment's thought should have made it clear to them that such a statement had to be way beyond anyone's scientific expertise since the necessary studies had never been done.

Recently in Hanover Park, Illinois, a man was arrested after being charged by a five-year-old next door neighbor of forcing her to witness the murder of five young girls in his bedroom and of the murder of a man in the basement (The Economist, 1991).  The murdered man was then allegedly partially eaten by the accused and his wife.  A mental health counselor, an expert in satanic sexual abuse, had worked with the five-year-old who was the only witness to the alleged crimes.

The case was eventually dismissed by the judge for lack of credible evidence but consider what damage must have been done to the accused, his wife, and all those around them.  Indeed, the accuser also was probably damaged by having to go through the accusatory process rather than having what seem to be her childish nightmares dealt with as such.

Much of the questionable expert testimony Huber is concerned with has been based on work outside the scientific mainstream and/or by an "expert" whose expertise, if any, would not be recognized as legitimate by most scientists.  Time and time again, liability has been found in lawsuits where scientific knowledge strongly suggests the damage could not have occurred as claimed.  Regardless, the courts found for the plaintiff.  The result has been large monetary awards.

For criminal defendants or those in the area of law where punitive measures can be taken against civil defendants — divorce and child custody —  use of these experts can lead to false accusation, loss of reputation, the enormous expense of presenting a defense, and the greatest risk of all: losing the case and facing the penalties on the basis of incompetent testimony from a junk scientist

Huber's focus is less on the decision makers themselves and more on the parts played in the decisions by expert witnesses who have testified in support of a damage claim.  We learn from his descriptions that many of these damage claims are exaggerated, nonexistent, or come from some cause other than the one claimed.  Often a plaintiff's lawyer has searched diligently to find some person who could be made out to have scientific credentials and who would be willing to attempt to convince the jury regardless that mainstream science would not agree.  The result has been unfairness, misallocation of resources, and tremendous increases in liability insurance costs.  In some cases, such as those involving vaccines and medications, manufacturers have subsequently discontinued production despite a need and a good market rather than face more lawsuits.

One problem with all of this is that Huber does not tell us how frequently such misadventures occur in comparison to the total number of cases.  By picking on horrible examples and implying they are typical, he may be committing the same sin he demonstrates many "experts" do — confusing what can happen with what is likely to happen.

Huber's thesis is that there has been a significant deterioration in the scientific qualifications of expert witnesses testifying in court and of the scientific quality of the testimony.  At present, judges in many jurisdictions, including Federal courts, will allow testimony from just about any person who can be at all justified as having scientific credentials.  The extent or nature of the scientific underpinning of experts' opinions are not scrutinized by the judge.  Weaknesses are left to exposure through cross examination by the opposing side — if the opposing attorney gets around to it.  Any kind of expert testimony can get in front of the jury.  As a result, attorneys place a premium on experts' believability — i.e. talent at impressing a jury — rather than on scientific knowledge.

The charismatic, attractively dressed and coiffed individual who speaks convincingly will inevitably outweigh the highly skilled, knowledgeable, mainstream scientist who looks and speaks the way most of us do.  And if the good looking expert should testify to something which is in line with common beliefs of the moment or fads no matter how outlandish, then truth and knowledge have hardly a chance.  Form inevitably overcomes substance.

This is a serious problem for all of us because we all need a dependable legal system, whether we happen to have to go to court or not.  We need the legal system to be fair to reach the best possible judgment regardless of the personal characteristics or sympathetic appearance of the individuals involved.  We expect the system to be reality based — that when a decision is reached, the decision is based upon something which really did happen and not on the imagination or mistaken theories of some person or some group.  When an event is attributed to a particular cause, we expect that the cause really did precipitate the event.

We expect the legal system to be predictable so that what was legally acceptable yesterday is going to be legally acceptable tomorrow or else how can people who wish to be law abiding govern their behavior?  We also expect trials to have fairly predictable outcomes so that lawbreakers cannot feel that even if caught they can gamble on a lottery and have a good chance to go unpunished.  Accused persons who are innocent should not have to feel they must trust to luck for exoneration.  A legal system which uses experts whose expertise may never be properly evaluated, and whose expert opinions may be based on no more than personal belief or untested theory cannot be relied upon to be fair, just, or predictable.

What is the role of the expert in a legal system if final judgment is left to a jury of peers?  Though the legal decision process heavily weights the experience and common sense of the average person, it also recognizes that the average person does not have sufficient knowledge or experience in certain issues to be able to arrive at a just decision.  For example, if a trial hinges on whether or not a defendant is mentally ill, the average juror will have knowingly encountered perhaps two or three mentally ill people in a lifetime.  This is not a large enough experience to make an informed decision.  The jurors can be assisted by someone who has seen hundreds of mentally ill persons and has learned to use demonstrably effective methods of recognizing and categorizing mental illness.

However as Huber emphasizes, the use of experts has brought problems as well as advantages.  And the more freedom experts have been given, the more problems there have been.  From 1923 to 1975 Federal courts (which tend to set the standards for state courts) permitted experts to testify only if their opinions were based upon theories and procedures which were within the scientific mainstream.  This considerably limited the manner in which attorneys could use experts in trials because even if the attorney could find an expert to support a far out claim, the judge would not permit the expert to testify.

In 1975 the Federal Rules of Evidence were written to allow any expert testimony as long as it assisted the judge or jury to understand the evidence or determine a fact.  For good or for bad this opened the door for experts to have an expanded role in the courts.  Presumably the safeguard against unqualified experts or outlandish opinions would be cross examination by the opposing lawyer who would bring out the weaknesses for the jury to see.

What this failed to consider is that few attorneys are scientifically sophisticated enough to cross examine an expert and expose gross error or incompetence.  The best many attorneys seem to hope for is to use their own experts to confuse the jury to the point that the testimony of one expert cancels the effects of the other regardless of the differing acceptability of their views.  And of course both experts and attorneys have learned to make use of appearance and manner of presentation over substance.  So there is little protection of the decision making process from well presented but incorrect or inadequately based expert opinions.

Huber certainly makes the point with his anecdotes that there is a problem.  Where the book is weak is on proposing solutions to the problem.  Huber barely goes beyond making clear that he is in favor of going back to some method of distinguishing mainstream science from fringe science.  The mechanism through which this could be accomplished is problematic.  In an era of great scientific complexity, how can judges know which experts to exclude?  We could set up official bodies to represent the various scientific fields and have them determine who is to be accredited to the courts, or require some sort of high level credential for an expert to be able to appear in court.  Indeed serious proposals of these sorts have been made and discussed.

Junk science in the courtroom though is a more complex problem than Huber recognizes.  Many factors are at work.  Even if permitting only mainstream scientists to testify yielded some improvement, it would be far from a satisfactory solution.  A number of other issues must be tackled as well.

First we do not want to repeat the Galileo problem.  As Huber reminds us in the in the book's title, Galileo is the prime example of the damage which can be done when representatives of mainstream science decide who can speak up.  Galileo developed a theory that the earth revolved around the sun — certainly not mainstream science at the time.  To their eternal discredit, the powers that be forced him to recant his "error."

Indeed, mainstream science can go terribly wrong, particularly in the social or behavioral sciences, where much of the courtroom action is these days.  To take an example from history much more recent than Galileo, look at the mainstream adherence to Freudian theories of psychopathology for a period of close to 50 years.  How many predictions have been made of terrible damage to children because of witnessing "the primal scene."  (For those too young to have lived through the Freudian era, the primal scene involves seeing one's parents engaged in sexual intercourse.)  Yet at the time there was not a shred of statistical or even good clinical evidence that this damage could occur.  (Nor of course is there any better evidence now.)

How many cases of schizophrenia were attributed to schizophrenogenic mothers simply on the basis of an untested theory?  Furthermore, one can hardly think of a more rigidly defined and enforced mainstream than analytically-oriented psychiatry and psychology.  Highly trained and respected colleagues were disgraced and ostracized for minor theoretical deviations.  The presence or absence of experimental evidence in support of theoretical positions was never even an issue.  We would not want to turn control over what can be said in a courtroom to mainstream groups of this sort.  Galileo's Revenge might better be called Galileo's Paradox or Galileo's Dilemma: how do we avoid junk science in the courtroom without foreclosing the opportunity to hear new, developing, and ultimately correct ideas?

Second is the fact that experts are in no way accountable for what they say in court and therefore improper testimony is not penalized.  Experts are free to say whatever they please in the knowledge that there likely will be no personal consequences regardless of how misleading their testimony eventually turns out to be.

Human nature being what is, even legitimate experts may be tempted to go beyond their scientific knowledge.  This is in contrast to the situation when psychiatrists or psychologists provide clinical services.  There they have strict codes of professional ethics to follow and concerns about loss of professional licenses or liability lawsuits for misbehavior.  Though perhaps in principle what experts say in court might lead to charges of unethical behavior or to a negligence lawsuit, such charges or lawsuits just about never occur.  And because of the adversarial manner in which we structure trials, experts are encouraged if not required to defend their testimony strongly while not mentioning any uncertainties or loopholes they are aware of in what they are proposing.  Though the courtroom oath to tell the whole truth and professional ethics might seem to require expressing such doubts (particularly the ethical code of the American Psychological Association), these are universally ignored without penalty.

The legal system also discourages acknowledgement of the shades of uncertainty with which science deals all the time.  Few legitimate scientists would defend any theory or conclusion as absolutely and ultimately correct.  The best science ever achieves is a high level of probability and scientists spend a lot of time attempting to punch holes in that probability.  Most scientific conclusions are tentative and accepted only until something better comes along.

The law in contrast looks for definitive statements of yes or no with nothing in between.  To play the legal game, the expert must assert a certainty with which most scientists are uncomfortable.  Failing to be so assertive or attempting to qualify a courtroom opinion will usually lead to damage to the side the expert is trying to support, particularly when the expert on the other side has no such scruples.  So for example, a cause and effect relationship which in the view of the conscientious expert is no more than possible becomes transmuted on the witness stand to inevitable and unquestionable.

Additionally, the sense of professional responsibility, pride, and allegiance to scientific principles which in past years governed what experts would say in the name of science, seems no longer to be as effective.  Concern over damaging the public's image of science or making oneself appear ridiculous in the eyes of colleagues seems for some individuals to be outweighed by the fame and fortune to be gained as a successful expert witness.  Impressing a jury, pleasing a lawyer, establishing a reputation as a witness who can win a case and therefore make a lot of money seem to be career goals for some.  Others look for the opportunity to get a public stamp of approval from a judge and jury for a theory which no panel of legitimate scientists would accept.  Still others seem to be on a crusade to improve the world, using their scientific credentials as weapons against sacrificial victims to advance a cause.

Third is the fact that though expert witnesses are usually hired by one side or the other, they are supposed to be neutral, advocating in the courtroom only for scientific truth.  Neutrality is often at best what has been called a legal fiction.  Once an expert becomes involved with a case, interacts at length with the legal team, prepares to defend the findings in court, etc. the expert in effect becomes part of the legal team.  As one observer put it, thinking that an expert can remain neutral is like thinking someone can sit on the bench with a basketball team in the middle of a hotly fought game and not root for that team.  Furthermore, a single expert may be employed not only to testify in court but to advise the attorneys on courtroom strategy and help the attorneys prepare to attack the opposing expert — hardly neutral scientific functions.

Finally is the tendency of experts to offer opinions on issues where they have no expertise.  Like most human beings, experts have strongly held personal opinions on many subjects, opinions they offer freely when asked.  Few experts seem ever to decline to offer an opinion in court even when that opinion is not on a scientific matter.  When an expert speaks on a moral, ethical, or even factual matter, despite the. expert's lack of scientific authority, the expert's opinion is usually accorded great weight by the jury.  Many experts, untrained in the nuances of courtroom procedure, may not even be aware of how they are going beyond the appropriate limits of their testimony.  Here again, the major barrier to this occurrence should be the opposing attorney but the opposing attorney often seems not to be aware of the issue nor interested in responding.

For anyone concerned with having an effective and just legal system, the current use of expert witnesses is painful to contemplate.  To be sure, many minor, unpublicized cases are swiftly and properly handled.  But there are enough disgraceful cases around to make improvement mandatory.

But what improvements seem both worthwhile and feasible?  As already mentioned, such suggestions are probably the weakest part of Huber's book — and for good reason.  The expert witness situation is so interwoven in the fabric of modern American law and has so many interest groups to defend it, this maybe one of those situations were "you cannot get there from here."  Nevertheless, here are a few thoughts about steps which seem to be doable with only modest disruption and which would produce considerable improvement.

First, make experts accountable in some way for what they say in court.  One way to do this would be to change the laws of each state so as to define service as an expert witness as professional practice.  Experts could then not only be more easily sued for negligence as an expert but could also lose their professional licenses for improper behavior.  Such an approach would discourage much of the unreasonable testimony by experts but would not shut off innovation nor solidify control by mainstream professional organizations.

Second, increase the specialization of attorneys and require complex cases involving scientific issues to be handled by attorneys competent in that area.  Though at one time any attorney felt prepared to take on any kind of case, this is no longer so.  Legal specialties have evolved and many attorneys will not take a case outside their area of competence.  However, specialization has not reached the point where scientific issue cases require a specialist.  Perhaps that point should be here.  At the least, generalist attorneys taking on such cases ought to use appropriate consultants.  Only with the benefit of such assistance or of their own specialized knowledge can attorneys explore adequately the scientific bases of expert testimony during cross examination.  The U.S. Supreme Court has recently ruled that attorneys dealing with death penalty defenses where mental illness is an issue have a right to consultation on the case from psychiatrists.  The significance of this ruling is that it recognizes the role of the expert consultant in assisting the attorney to do the attorney's job, not just in testifying in court.

Finally, is the elimination of the legal fiction that the expert is neutral.  Recognize the reality that the expert becomes part of the legal team and that in court the expert is not swearing that something did or did not happen but is describing only how something could have happened provided the claim by the expert's client is accepted as true.  In this approach, the expert is the explainer of scientific theory as it applies to the presumed facts of the case but not the certifier of the facts.  Conflict between experts for the two sides would then be over the likelihood that one theory or another is applicable in the situation but not over who is telling the truth.  Experts' expertise is appropriately used in evaluating scientific theory.  It is for the jury to sort out competing claims.

Peter Huber has written a thought provoking book.  Unfortunately, it only sets the scene for the work that remains to be done.  But considering the difficulty of the task, this is about all we can ask for at this time.  This book is certainly worth reading by anyone who is concerned with the use of scientific expertise in the courtroom.
  

References

Huber, P. W. (1991). Galileo's Revenge: Junk Science in the Courtroom (). New York: Basic Books.

The Economist, August 31st, 1991, p. 23.