The Expert Witness
Posted by The Expert Witness on 8/22/06
In a civil court action, financial compensation is the
means of exchange for righting a wrong. "Liability" is
determining responsibility for a wrongful act. Broadly
speaking, it is the civil equivalent of being convicted.
This in itself does not necessarily determine the level of
punishment, or "Damages." Punishment is made in the form
of assigning financial compensation to the aggrieved
party. In the American Judicial system, parties are
frequently asked to provide "Expert Witnesses" to validate
the level of financial Damages. This is particularly true
in suits involving destruction of health.
It is entirely possible that while "guilt" is determined,
no Cause of Action is proven for these Damages. Attorneys
for both sides are expected to produce "Expert Witnesses"
to establish or attempt to destroy the link between the
act (no matter how horrible or malicious) and the level of
compensation.
IN PRAISE OF THE PERSONAL PHYSICIAN
In the case of the aggrieved party, their personal
physician might be the most "Expert" medical witness of
all. This is particularly true if they have an ardent
interest in the subject.
Because of long term care giving, they are intimately
familiar with their patient's condition, both emotionally
and medically. The personal physician tends to be more
empathic to subtle nuances that would be easily overlooked
by the superficial detachment of the
alleged "professional" medical witness. The personal
physician develops a level of interest for a patient whose
condition they know very well through personal, long term
observation.
THE PhD RESEARCHER
Contrary to popular opinion, it is the PhD rather than the
MD that produces the bulk of medical research. Given
their background, the "pure researcher" is not highly paid
by standards of the medical profession. Many of them have
a keen interest in their specialty that drives them to
clarify issues and develop remedies. While some have been
corrupted by huge sums paid to professional "Expert"
witnesses, most labor with a sense of dedication to their
field.
THE "PROFESSIONAL" MEDICAL WITNESS
To offset this, a well funded opposition will secure what
is termed "Expert" medical witnesses. To impress the
jury, they substitute alleged professional credentials for
long term and in depth knowledge of the patient and their
condition. In addition, it is not unusual for the
government to use government employees to testify.
Needless to say, these medical "professionals" have a
vested interest in protecting their positions and backing
their employer.
Expert Witnesses are frequently bought, not found. In the
case of providing medical experts, the cost of getting a
physician to testify can cost tens of thousands of
dollars. When a wronged American citizen files suit
against a Federal agency, the citizen is at a grave
disadvantage unless they are very wealthy.
A Federal Agency such as the US Department of Justice has
an infinite amount of taxpayer money to spend and diminish
the aggrieved party's compensation . They have the
ability to BUY any number of witnesses at any expense to
testify on their behalf without any level of
accountability.
This is not like filing suit against a corporation. In a
corporate suit, the cost of providing Expert Witnesses is
weighed against the cost of paying Damages. In a suit
against the government, little thought is given to cost
benefit. The money isn't coming out of the government's
pocket. It's being grabbed from the hard earned income of
the taxpayer. On the other hand, the aggrieved citizen's
response is limited by their personal budget.
While many doctors are sincere practitioners of their
healing art, being offered $10,000 or significantly more
of taxpayer dollars for a few hours of testimony can be
very tempting. Many of these witnesses can and do earn a
large portion of their annual income serving as
witnesses. With experience, they become very skilled at
providing convincing testimony.
In this way, the Government agency hopes to crush the
aggrieved party. This ploy forces the wronged American
into accepting either an unfair out of court settlement
(with their story forever hidden from the public), or
being driven into bankruptcy and dropping the case all
together.
Rule 26 of the General Rules Governing Discovery, provides
some indirect method for discrediting specific Expert
Testimony. Rule 26, [2] Disclosure of Expert Testimony
states in part [2B] that "... the compensation to be paid
for the study and testimony and a listing of any other
cases in which the witness has testified as an expert at
trial or by deposition within the preceding four
years ..." must be stated in the "Expert's" report. It
can reveal less-than-sincere motivating factors for the
direction of their testimony.
Many people labor under the delusion that their government
is out to do "the right thing" for an aggrieved citizen.
In its most optimistic scenario this only exists in a
civil suit that doesn't involve the government as
defendant. When a Federal agency like the US Department
of Justice becomes the defendant, they will steadfastly
refuse to admit that they did anything wrong. They will
protect the individuals responsible and squander an
infinite amount of taxpayer funds to undermine the abused
citizen's case.
Written and Copyright © by: LTC Michael G. Leventhal
The Expert Witness
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