For years, the insurance industry complained about "junk science"
in Florida's courtrooms. According to its lobbyists, juries were reaching
large verdicts because they were duped by expert witnesses using dubious
science to testify for injured people.
Whether that was ever true is highly debatable at best. Nonetheless, the
insurance industry got what it wanted this year. There is now a more stringent
standard for expert witness testimony in Florida courts. Florida state
courts are now subject to the same rules as Federal courts, which require
judges to act as "gatekeepers" for expert witness testimony.
As a result, Florida judges will probably look more closely at expert
witness testimony before allowing a jury to hear it.
The interesting thing is that this may end up being a be-careful-what-you-wish-for
story. There is plenty of marginal "science" being peddled by
witnesses for the defense side in
personal injury and
death cases. A stricter standard for scientific evidence could end up backfiring on them.
For example, the defense sometimes hires psychological experts who administer
personality tests to injured people. Some of these tests include "pain
scales" which are supposed to measure a person's pain level and
function. They then use the test results (scored by the expert, of course)
to testify that an injured person is "malingering, " or exaggerating
their symptoms to try and help their case. The titles of some of these
test sections - including the "fake bad scale" and "lie
scale" - imply dishonesty all by themselves.
There are many problems with using these tests to try and show malingering.
A full discussion of those problems would require much more time, but
among them are: (1) a baseline of telltale answers given by malingerers
has not been established for these tests, (2) legitimately injured people
can gets points toward malingering even if they answer truthfully, and
(3) a poor test score alone cannot explain why someone performed badly,
and does not rule out reasons other than faking or exaggeration.
Many plaintiff's attorneys have already done fine work in pointing
out the flaws in these tests and the conclusions drawn from them. Things
should get even more interesting as judges apply stricter standards to
this kind of testimony. It seems likely that it will be kept out of evidence
in all but the rarest cases.
Another example is accident reconstruction testimony. Some principles of
accident reconstruction, such as the underlying physics equations, are
admittedly well-established. The problem is that many defense experts
go beyond those principles and peddle misleading testimony.
For instance, some experts concoct "force analogies" that compare
impacts from auto accidents to forces people encounter in everyday life.
A defense expert might testify, for example, that the force generated
by a low speed rear end auto accident is the same as the force created
by flopping down onto a mattress from a standing position. The unspoken
implication of this testimony is obvious: a car accident is no big deal,
and involves no more force than one encounters navigating through their own home.
However, the flaw in this type of purported analogy is pretty easy to spot.
Even if the testimony is correct
as a mathematical expression of overall force, it does nothing to explain the force felt in
specific parts of the human body. When one flops down on their back onto a mattress, the
mattress stops the neck's fall. However, a person sitting upright
in the driver's seat of a car rear-ended with the same force would
have their neck thrown forward and back by the impact (not even a well-placed
headrest will prevent neck motion entirely).
Many judges have already recognized this and barred use of the analogies
for that reason. Now that we have a stricter standard for scientific evidence,
the case against this type of misleading testimony will be even stronger.
The point is that there's nothing to cry about here. Injured people
and their attorneys should treat this as a golden opportunity to bar defense
pseudo-science from the courtroom.