The objectives of this chapter are two-fold. The first objective is to familiarize readers who have not previously been involved with the overall process of civil litigation with the basics of that process. The second objective is to aid the reader in navigating the process by providing practical guidance about serving as an effective expert while protecting oneself and steering clear of ethical pitfalls.
THE ROLE OF AN EXPERT WITNESS IN LITIGATION
Over the past two decades, expert witnesses (“experts”) have played an increasingly important role in litigation. The outcomes of cases involving complex scientific concepts often come down to “a battle of the experts.” Physicians serving as experts provide an important service to the community and to the legal system by helping to ensure that litigation outcomes are based on scientific facts and principles. Experts who are good communicators can assist a judge or jury in understanding difficult and complex scientific concepts by breaking them down into comprehensible pieces, in much the same way an oncologist might explain the complexities of a cancer diagnosis and treatment plan in understandable terms to a patient.
Physicians with expertise in oncology have been involved primarily in three types of litigation: (1) medical malpractice cases alleging that a physician failed to comply with the standard of care in diagnosing or treating a patient; (2) product liability cases involving allegations that exposure to a particular chemical or medication was the cause of plaintiff’s injury; and (3) intellectual property cases involving patent disputes. There is no limitation, however, on the types of cases in which an expert can get involved.
Importantly, unlike the attorneys, who must be advocates for their clients, experts are supposed to be objective, impartial, and unbiased, with a commitment to being fair to both sides. Ultimately, of course, an attorney would not call an expert to testify if that expert’s opinions on balance are not helpful to the attorney’s case. The responsibility of the expert, though, is to provide a candid, unbiased review of the case as opposed to simply telling the attorney what he or she wants to hear. When a case review is ultimately “favorable” (i.e., supporting the position of the party on whose behalf the expert was retained), there are still likely to be some aspects of the case that are challenging. An expert’s review is most useful when it provides a candid assessment of not only the strengths of the party’s case but also the weaknesses.
Even a case review that is ultimately “unfavorable” provides value. For example, it is important for a plaintiff’s attorney to know when, from a scientific vantage point, his or her case is relatively weak or lacking in merit. Ultimately, that knowledge may prevent the attorney from devoting a lot of financial resources to a case that has limited value. Conversely, from the vantage point of a ...