THE CASE AGAINST EXPERT WITNESSES Want to win a lawsuit? Just call an all-purpose expert. For a fee, you can find one to ''prove'' almost anything. Judges are starting to rebel.
By Walter Olson WALTER OLSON is a senior fellow at the Manhattan Institute for Policy Research. He is at work on a book about the litigation explosion. REPORTER ASSOCIATE Sandra L. Kirsch

(FORTUNE Magazine) – WITHIN THE thriving business of suing people -- what you might call the disservice sector of the American economy -- expert witnesses occupy a fast- growing and controversial niche. Hardly a liability suit goes forward without an engineer or a doctor swearing that the product was misdesigned, or the injury devastating, or the hospital negligent. The other side then calls its expert to say the exact opposite. Both get paid handsomely. Courts have always relied on expertise in one form or other. But sweeping changes in federal rules of evidence in the mid-1970s vastly widened the definition of an expert -- and what that person can talk about. Says Jack Weinstein, a federal judge in Brooklyn: ''An expert can be found to testify to the truth of almost any theory, no matter how frivolous.'' Unlike other witnesses, experts freely give opinions and can speak in the language of legal conclusions: ''In my professional opinion, this was a clear case of malpractice.'' They are allowed to base their comments on evidence that for other witnesses would be inadmissible as hearsay. And they often make a big hit with juries. No field is out of the experts' reach. Going through a nasty divorce? A forensic accountant will sketch a dazzlingly prosperous future for your spouse's business. Caught skimming the till? A hired psychologist will arouse sympathy with the jury by calling you a hapless victim of compulsive gambling syndrome. Your son was dropped from his college basketball team because of poor grades? A self-styled sportsologist can swear that if not for this unfairness Kevin could have earned $1 million a year with the pros. $ A lively business has sprung up to bring lawyers and experts together. One of the biggest referral firms, Medical-Legal Consulting Service Inc. of Bethesda, Maryland, says it has 600 experts on call. If the first doctor it refers doesn't agree with your lawyer's theory on the case, the company promises to send over a second one free. Another firm, Medical Quality Foundation of Herndon, Virginia, has offered seminars on how lawyers can increase the size of jury awards. The referral services, and individual experts, put out colorful brochures listing the areas in which they can testify. Exuberant ads in the back of Trial magazine, which is published by the Association of Trial Lawyers of America, tell the tale. One, headed ''Heavyweight Malpractice Experts,'' features a photo of a man in a white clinical coat wearing boxing gloves. Other experts specialize in mishaps involving utility poles and so-called sport surfaces. Some ex-cops are eager to help in the growing area of ''negligent security'' -- suits against the supermarket in whose parking lot you were assaulted, or the bank at whose automated cash machine you were robbed. ''The more measured and impartial an expert is, the less likely he is to be used by either side,'' writes Professor John Langbein of the University of Chicago law school, who has himself testified. If the conscientious outsider resists the subtle pressure to get on the team by shading his opinions, he may not be called back. There seem to be plenty of willing replacements.

Experts in most demand are those with the surface polish that comes from previous trial combat. The more you appear in court, the more chances you get to appear again, picking up what you might call frequent-testifier bonus points. Counting in fees for strategy sessions, out-of-court appearances, and the like, just a few big cases may bring more to a professor than he normally makes in a year. If he or his consulting firm can swing a contingency deal -- getting a share of the jury's award -- the pay can be huge. Hence the rise of the professional witness. ''You see the same experts again and again around the country,'' says Arvin Maskin, a New York lawyer who helped defend the Agent Orange case for the U.S. government. Howard Balensweig, a semiretired Manhattan physician who spends much of his time as an expert in injury cases, says he averages $3,500 for a day in court and $2,500 for half a day. Lawyers for Merrell Dow Pharmaceuticals have grown quite familiar with Dr. Alan K. Done, a Salt Lake City physician and toxicologist who travels around the country testifying that Bendectin, the company's anti-morning sickness drug, has caused or contributed to birth defects. Merrell Dow sends in mainstream experts of its own by the vanload, and usually wins. The Food and Drug Administration has approved Bendectin, stating specifically that it does not increase the risk of birth defects. The World Health Organization, which acts only in an advisory capacity to member countries, basically supports the FDA conclusion. But when the occasional jury goes along with Dr. Done, the damages can be huge, $95 million in the case of one child. The judge rejected $75 million of that award. Other judgments against Merrell Dow keep getting thrown out by judges at trial or on appeal; federal judge Thomas Penfield Jackson cited the ''now nearly universal scientific consensus'' on the drug's safety. Still, because of the expense of litigation, Merrell Dow has stopped selling it. The expert needn't convince; he does well to confuse. If even the pros can't seem to agree, the side with the weaker factual case at least manages to stay in the game. When a bewildered jury decides that the chemistry or geology or economics of the case must be just a matter of opinion, it will often follow its other instincts -- especially the natural impulse to compensate a hard- luck litigant at the expense of someone with money. Among the claims that arouse the most sympathy in jurors are those of illness caused by pollution. In a typical pattern, neighbors of some chemical or nuclear facility come to court complaining that the plant has caused various ailments. Establishing a direct link between low-level toxins and specific illnesses has been difficult if not impossible. So the litigants, backed by their lawyers and a growing group of experts-for-hire, have developed a marvelously elastic theory: Pollution can suppress the immune system. Thus, it can be blamed for a wide range of common ailments from diabetes to learning problems, gallstones to hearing loss, depression to measles. THE EXPERTS -- who call themselves clinical ecologists, practitioners of environmental medicine, or immunologists -- aver that even minute exposures to man-made chemicals or radiation can alter the immune system. The American Academy of Allergy and Immunology has repudiated the theory, as has the California Medical Association. Still, it plays well with juries. Yale law ) professor E. Donald Elliott says it has ''dramatically changed the strategic balance in toxic tort cases.'' A judge ordered Velsicol Chemical Co. to pay $22 million to a group of Toone, Tennessee, residents who claimed to have been harmed by leaks from a company landfill. Dr. Alan Levin, a San Francisco physician who treats AIDS patients, said of the plaintiffs: ''In my opinion, their immune systems will never recover.'' (An appeals court later reversed part of the award, and Velsicol settled the case, along with some other damage claims, for about $10 million.) In a case brought by a group of Sedalia, Missouri, residents against Alcolac Inc., Arthur C. Zahalsky, who has a Ph.D. in microbiology and teaches immunology at Southern Illinois University, said several of the residents were suffering from ''chemically induced AIDS,'' a dramatic malady unrecognized by mainstream science. The jury awarded $49 million in damages. The judge later set aside the ruling and ordered a new trial to recalculate damages. But the verdict of liability against Alcolac was allowed to stand by the Missouri Supreme Court. The company has asked the U.S. Supreme Court to review the case. According to a court document, Zahalsky has no graduate credits in immunology, but he points out that such courses were not given when he went to school in the 1960s. He says he later audited courses in immunology at Washington University in St. Louis. Questionable science used to be excluded on principle from the courtroom. Under the so-called Frye rule, named for a 1923 case, expert testimony could be admitted only if the scientific methods behind its conclusions would pass muster with most of those active in a particular field. The problem: What was a field, and who was active? Also, the courts in their caution tended to lag behind developments in forensic science. CRITICISM intensified in the 1960s. Wasn't it elitist to insist on paper credentials before letting someone testify? What if the witness wanting to speak his piece, whose training had come in the school of hard knocks, turned out to be the next Galileo? Why waste time on what one court later dismissed as ''scientific nose-counting''? In 1975 Congress enacted new liberalized rules of evidence, and most states followed suit. Now all it takes to be an expert in many courts is a call from a lawyer. Trials filled with self-described accidentologists with coffeepot- to-railroad-car expertise, human factor engineers, measurers and calibrators of workplace emotional trauma and post-one-thing-and-another- syndrome, and more. By no means are all these folks charlatans; many say perfectly commonsensical things in court. But in so doing they can add an aura of scientific authority to propositions (''It hurts to get fired'') that juries could grasp on their own. The let-it-all-in trend may have peaked in 1984 when the federal appeals court in Washington suggested that as long as a scientific proposition with very thin support had not been palpably disproved, it might be best to send it to a jury for a vote. But a reaction was already afoot. A federal judge in Kansas threw out a radiation claim based on testimony he felt the experts ''would not dare report in a peer-reviewed format.'' Then Judge Weinstein in Brooklyn dismissed the remainder of the Agent Orange cases, saying the expert affidavits claiming to prove connections between various illnesses and use of the herbicide were just too flimsy. (Cold comfort for seven chemical companies that had already agreed to spring for $180 million to settle claims with a more or less identical basis.) An even clearer call to action came in 1986 from federal appeals judge Patrick Higginbotham of Dallas, often mentioned as a future Supreme Court nominee. A Pan Am flight had crashed in New Orleans and lawyers were having the inevitable, ghoulish argument over what each passenger's death was worth. An economist hired by a bereaved family declared that a young man's struggling business had been headed for tremendous success: His after-inflation income would have climbed year after year in an unbroken line for the next 40 years, yet he would have found ways to keep his tax rate down to a thrifty 5%. And so members of his family lost $1,778,873 as their hypothetical inheritance (they were already on their way to an initial award from Pan Am of $3 million for other kinds of damages). Higginbotham called the economist's figures ''completely airborne'' and called for a new trial. ''It is time,'' he said, ''to take hold of expert testimony in federal trials.'' More and more of his colleagues on the bench seem to agree. Two appeals decisions have recently backed the dismissal of Bendectin verdicts on scientific grounds; one was written by Judge Spottswood Robinson III, a Lyndon Johnson appointee from the D.C. circuit's liberal wing. In overturning the immune damage award against Velsicol based largely on Dr. Levin's testimony, another appeals court noted that leading professional societies ''have rejected clinical ecology as an unproven methodology lacking any scientific base in either fact or theory.'' What Georgetown law professor Paul Rothstein calls the strict scrutiny faction among judges is fast gaining ground. Plaintiffs' lawyers object to this know-it-when-I-see-it judicial approach to bad science. They also oppose tighter laws of evidence or some kind of modern Frye rule. They argue that thorough cross-examination is protection enough against the roving jack-of-all-testimony. New York lawyer Paul Rheingold ruefully recalls what happened when he brought in an all-purpose expert to opine on the supposedly defective design of a motorcycle. The defendant's attorney rose and asked: Didn't the witness also testify in auto cases? Yes. And ladder cases? On the attorney went, ticking off specialties from the expert's promotional brochure -- glass, fires, TVs, explosions? Yes, yes, yes, yes -- by which point the jury might not have believed the expert if he had told them the time of day. The lawyers have a point: Cross-examination can be a good defense. The American Corporate Counsel Institute has begun keeping a database of hostile expert testimony so defendants can better expose weaknesses as cases accumulate. BROADER REFORM is clearly needed. Imperfect though it is, some sort of peer review is the ultimate answer. Juries deserve to know whether what they are being told would get a witness laughed out of an ordinary lab or hospital. To rely on judges' instincts about the validity of expert testimony is both not enough and too much. Courts may not be ready to return to the discipline symbolized by the Frye rule, but there are alternatives. Elliott of Yale suggests that dubious testimony could be countered by a court-appointed expert who would explain what mainstream practitioners of that particular branch of science might think of the witness's theories. Since junk science has made companies so vulnerable to all kinds of claims, American business has everything to gain by ousting it from the courtroom. And the public at large could begin to regain some of its former confidence in the justice system. Cynical lawyers call their experts saxophones because they can be played with such virtuosity. Let's hope the brassier ones are muted before long.