Be Careful What You Wish For: Defense Industry Rule for Expert Testimony May Backfire

Be Careful What You Wish For: Defense Industry Rule for Expert Testimony May Backfire

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.

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