THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, January 29, 1996 TAG: 9601290077
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 226 lines
Judge Henry C. Morgan Jr. was furious and he wanted everyone in the courtroom to know why.
His anger came in midtrial, in midwitness, so Morgan sent the jury out of the room. Then he ripped into the smartly dressed businessman on the witness stand, a high-ranking baseball official who was testifying against former slugger Glenn Davis.
``That was one of the most distorted presentations of statistics I have ever seen,'' Morgan said angrily. Later, he turned to defense attorney Edward Breeden. ``I don't know where you're going with this, Mr. Breeden, but the court is just about out of patience with this witness.''
The object of Morgan's wrath that morning of Jan. 18 was an expert witness spouting statistics.
The federal judge's beef: This witness, and expert witnesses in general, have become mere hired guns - not impartial experts educating the jury, but paid advocates for a cause.
``In my experience, expert witness testimony in a significant percentage of cases is simply unreliable,'' Morgan said in an interview last week. ``The most cynical will say that expert testimony on any issue is a product for sale in the marketplace.
``Now, in my experience, most experts are honest and testify with integrity. But a substantial number are willing to slant their opinions.''
And Morgan is not alone in his concern. Judges and lawyers generally agree.
``The explosion of experts and expertise has stirred concern among bench and bar about professional witnesses - called hired guns or worse - who might testify to anything for a price,'' the American Bar Association Journal reported in November 1994.
For trial lawyers, it is a simple fact of life. If you have a client, you need an expert.
And if you need an expert, you don't have to look far.
Across America, the expert industry is big business. For example, the legal newspaper Virginia Lawyers Weekly routinely carries ads under the heading ``Expert Witness Guide.'' The latest issue includes experts on firearms, auto engineering, documents and economic analysis.
If that's not enough, the country's largest referral service, Technical Advisory Service for Attorneys of Blue Bell, Pa., lists about 24,000 experts in 5,500 fields, from aerosol cans to zippers.
And such experts can be very expensive. In the Davis trial, one charged $375 an hour to testify, plus $275 an hour to prepare for trial. The total bill was about $15,000.
The problem is not that so many experts are available. It is that some are willing to bend their opinions in court.
Judge Robert G. Doumar, another federal judge in Norfolk, said the problem of biased experts isn't new - it's been around for 20 or 30 years - but it is growing worse.
``We are having in courts experts who are, in essence, advocates for a position on behalf of the individual who is paying them,'' Doumar said in an interview last week. ``It's becoming obvious these people aren't objective at all in their testimony.''
David M. Zobel, a Virginia Beach lawyer who represented Davis in the recent trial, agreed.
``There are known hired guns out there that have known viewpoints,'' Zobel said. ``As the judge said, they definitely become advocates for one side, without rendering a fair and unbiased opinion.''
The argument is not new. What is unusual is that a federal judge would make the case so publicly, in midtrial, and that the judge would be Morgan, an even-tempered man who rarely interrupts witnesses with questions or challenges.
How did the problem become so widespread?
It's not hard to imagine. During a trial, lawyers on each side scramble for every tiny edge, always seeking new ways to tell jurors their stories.
Sometimes, that edge is a ``fact witness,'' someone who can tell a tale without embellishment - an eyewitness to a car crash, for example. No opinion; no gloss.
More often the lawyer's edge is an ``expert witness,'' someone who can convey complex and specialized facts to a jury of laymen - for example, how a doctor cut out a tumor in a malpractice case, or how a car's brakes locked up just before a crash.
Almost always the expert throws in his opinion. That is the beauty of the expert witness: Only a court-certified expert may offer opinion to go along with his facts.
It is the expert's most important job.
``You cannot successfully prosecute a claim of any complexity without expert witnesses,'' said Robert R. Hatten, a Newport News lawyer who specializes in asbestos cases. ``They provide an essential part of the evidence because they're the only people who can offer opinions.
``Your typical case now involves so many things that are beyond the ordinary background of the jury. They need an expert to walk them through information that leads them to make an opinion.''
In a complex civil case, it is not unusual for each side to have two or three expert witnesses. ``It does have a tendency to make cases expensive and lengthy,'' Hatten agreed, ``but in many cases its unavoidable.''
The question then becomes: If a lawyer pays an expert that kind of money, does anyone really expect him to say anything bad about the client who hires him?
Not likely, some say.
``Unfortunately,'' Hatten said, ``there is a perception out there that with enough money you can get an expert to say almost anything.''
Which brings us to the Glenn Davis trial.
The case seemed simple.
A bouncer at Club Rogues, a popular Oceanfront bar, punched a customer in the face three times, breaking his jaw. The customer sued for $5 million. Simple.
The complicating factor was the victim's identity: Glenn Davis, one of the highest-paid players in baseball. At the time, he was under contract to the Baltimore Orioles for $3.75 million.
The trial centered on two issues. Did the bouncer commit assault and battery? And if so, how badly did it hurt Davis' career?
It was a case built for expert witnesses.
``I've never had a case where lost income was so specialized,'' Zobel said later. ``The number of experts in this case was unusual.''
There were several.
As expected, both sides had medical experts. To no one's surprise, Davis' expert said the ballplayer has lingering injuries; the bar's expert said Davis is cured. The dueling experts became a problem only when the defense witness, a Portsmouth oral surgeon, tried to testify about Davis' mental condition.
Morgan stopped him cold. Not your field, the judge ruled.
Another expert, a professor from Philadelphia who trains private security guards, was excluded when Morgan ruled his testimony was irrelevant in an assault case.
Finally, each side had baseball experts.
They were the most fun - and, for Morgan, the most vexing.
The expert witness for the defense flashed his ring at the jury - big, sparkling, impressive.
It was no ordinary ring. This was a World Series ring, he explained. He got it as a member of the renowned Big Red Machine of the 1970s, the world champion Cincinnati team of Pete Rose, Johnny Bench and Tony Perez.
He had three more rings just like it at home.
Clearly this was no ordinary witness. His name was Richard Wagner, former president of the Cincinnati Reds, former president of the Houston Astros, special assistant to the baseball commissioner.
For several hours, Wagner had testified against Davis. It was his job to bolster Club Rogues' claim that Davis was washed up when the bouncer broke his jaw, and that Davis was not entitled to big money damages.
Wagner was brought into the case to counter the ballplayers' expert, a man named Tal Smith, president of the Houston Astros. It was Smith's contention, earlier in the trial, that Davis was on the rebound and that the bar beating cost him perhaps a $1.8 million contract for 1994.
Wagner set out to demolish that claim. To make his case, he spit out a blizzard of statistics, blown up on big charts. He told the jury about ``the two careers of Glenn Davis.'' One set of charts showed huge numbers for 1986 to 1989, with big home run totals. Another showed puny numbers for Davis' injury-filled seasons of 1990 to 1993.
The judge wasn't buying it.
With the jury watching, Morgan started quizzing Wagner himself. Over and over, the judge hammered at the witness, asking for statistics that Wagner simply didn't have. What about home runs per game? the judge asked. Or runs batted in per at bat?
``Some statistics are more accurate than others,'' Morgan said.
Finally, in exasperation, Morgan sent the jury out of the room and let loose. ``To come in here and say how many home runs he hit in that four-year period without relating it to the number of games he played is a distortion of the facts,'' Morgan said.
Morgan didn't question the witness' honesty, just his prejudice.
``It's his job to present this in an unbiased manner,'' Morgan said. ``The court does not believe he did that, to the extreme. . . . At some point, it reaches the breaking point, and I think that happened with this witness' testimony.''
After arguing baseball statistics for several minutes, the judge turned to the defense attorney again. ``I am not going to be final judge of this witness' credibility, fortunately for you,'' Morgan said.
In the end, the jury did not believe Wagner, either. It found the bouncer had committed assault and battery and awarded Davis $1.6 million.
A few days later, the judge lamented the general decline in expert witness testimony.
``The great majority of trials have experts. The more serious a case, the more like there is to be expert testimony,'' Morgan said.
Some of the best expert witnesses he has seen, Morgan said, are auto mechanics - guys who lack formal education, but know their trade. Some of the worst are highly educated and highly paid.
``It's absolutely unethical to compensate a fact witness,'' Morgan said. ``Yet in the case of an expert witness hired to testify in a case, they are frequently very highly compensated, simply to give their opinion. . . . It strains any person's integrity to be put in that position.''
The problem of expert witnesses is not new.
As far back as 1964, long before the current vogue of lawyer-bashing, a legal how-to book called ``Trials: Practice, Strategy, Controls'' warned attorneys to beware of some experts.
``Generally,'' the author wrote, ``the `professional' expert witness should be avoided. . . To the jury, such an expert may appear to be a professional testifier rather than an expert in his field.''
Thirty years later, there are more professional experts than ever, Doumar said, ``in fields we never even dreamed there would be'' - fields like economic loss and accident reconstruction.
The judge's job, in state and federal courts, is to sift the bad experts from the good, to prevent them from testifying before they taint the jury.
It is entirely the judge's call, and in federal court, the standard for deciding who is an expert and who is not is very confusing and subjective. Just a few years ago, the rule of thumb was, ``If he says he's an expert, then he is.'' Today, judges have wider discretion.
How can a judge judge the experts? Not easily, Doumar said.
For example, there was a case, some years ago, in which an ``eye expert'' offered to testify that a normal person driving on the Chesapeake Bay Bridge-Tunnel could not see a car stopped in the middle of the road. Doumar wrestled with that one, but let the expert testify.
``To this day,'' Doumar said, ``I'm wondering'' if he did the right thing.
Today, Doumar said, he will not allow another ``human factors'' expert to testify in his court. But then, it is hard for a judge to judge the experts, especially in new or unusual fields.
``Today, more than ever,'' Doumar said, ``the experts are being utilized in areas they were never utilized in before.''
Often, there is nothing unethical about dueling experts in a trial. They simply see things differently.
But it can be confusing for jurors.
``Sometimes it truly is a matter of opinion as to what's accurate and what isn't,'' Morgan said. ``Naturally the person who's being paid for his opinion is going to lean toward the person who retains his services. . .
``The fact that you can find an expert witness already willing to support your position on an issue is a problem in the sense that it may produce a case without merit - just because you can find someone who'll say it does have merit.'' ILLUSTRATION: Of expert witnesses, Judge Henry C. Morgan Jr. says: ``The most
cynical will say that expert testimony on any issue is a product for
sale in the marketplace.''
Richard Wagner, a longtime baseball executive, came armed with
statistics when he testified against Glenn Davis.
by CNB