innocence blog

A Web log for the Innocence Institute of Point Park University

Tuesday, August 29, 2006

Junk Science Fuels Lawsuit Abuse

This op-ed piece ran in the Tallahassee Democrat on August 29, 2006.

Junk science is distorting justice in Florida

By Slade O'Brien

As the lazy days of summer begin and the deluge of vacationers hits Florida's pristine beaches, sparkling waters and world-class theme parks, we should all take a moment and ask, “Who else are we inviting in?”

Each year, Florida's courts play host to personal injury lawyers from far and wide, stirring together a toxic brew of lawsuits, litigants and so-called expert witnesses who are ready to provide flavor in the form of junk science.

So what is this junk science? Junk science is questionable, unfounded or misleading information that is put forth as medical or scientific fact. It's not terribly difficult to identify junk science, because it is driven by speculative theories outside of the thoroughly peer-reviewed mainstream of science.

Junk science is typically medical or a scientific claims made by so-called "expert witnesses," claims that are not supported by fact but theory, and are not validated by others within the scientific and medical community. In Florida, these "experts" are free to believe in their theories and testify in court as if the theory is fact - even in the face of compelling evidence to the contrary.

The proliferation of these so-called "experts" for hire, promulgating lawsuits based on junk science, is a very real concern and one of the prime culprits of the lawsuit abuse epidemic in our state. In Florida, expert witnesses are given extreme latitude to offer the court their opinions and, unlike a normal witness, their testimony can be based on hearsay or what would normally be regarded as inadmissible evidence solely for the purpose of supporting their opinions.

In fact, the issue of highly “misleading”- even fraudulent-expert testimony made national headlines when Dr. Ray Harron from West Virginia and other medical experts were found to have made fraudulent silica diagnoses in a Texas courtroom. These diagnoses were characterized by the judge in the case as "driven by neither health nor justice - they were manufactured for money."

A congressional panel is investigating Harron, and a medical screening company with which Harron worked is the subject of a probe by federal prosecutors in New York.

While this happened in a Texas case, it could just have easily have happened in Florida.

Aggressive personal injury lawyers know that jurors are made to believe, because a witness is labeled an "expert" and is testifying in court, that the expert is credible and therefore their testimony should be strongly considered. Knowing this flaw in our system, personal injury lawyers pick Florida again and again as one of their lawsuit venues of choice and continue to view our state as fertile ground to try out the best science money can buy.

With no ethical standards to protect our legal system from these bad apples, Florida will continue to be a haven for on-call experts and purveyors of junk science.

The state needs to stop casting a blind eye to the problem and take action.

Florida should require our courts to follow the highest standards when admitting expert testimony on medical, scientific and technical matters. Common sense tells us that only those who are actually qualified in a specific field should be able to testify as experts on issues concerning that field of science, and should be compensated only for their time - not their ability to help secure sizable judgments.

Put plainly, a reasonable person would not go to an ophthalmologist, demand a diagnosis of foot fungus, and then reward that diagnosis with an exorbitant fee for telling others it is true. It just wouldn't make sense and wouldn't be ethical, especially if we were talking about doing this in a court of law.

Unfortunately, this happens more often then we would like to believe and exemplifies why Florida's courts must adopt a straightforward, common-sense approach to the use of expert witness testimony. By doing so, our courts can ensure that the testimony given is reliable, trustworthy and based on the highest of ethical standards. This common-sense approach would also go a long way in sending a message to those who file lawsuits based on junk science that we are watching and ready to take action against abusive and unethical behavior in our courts.

Floridians deserve better. We deserve a court system where those who truly have been injured or harmed get their day in court. But almost more importantly, we deserve a court system based on truth, fairness and plain old common sense. Only by eliminating the frivolous, extortive and junk lawsuits that crowd our legal system will good honest people who truly need restitution receive it in a timely manner.


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