Experts Beware—The Risks of Making It Up

Testifying experts have, on occasion, been known to invent tests or theories, or to stray from generally-accepted methods, to support their opinions. Since juries are composed of non-expert lay people, these newly invented tests and theories may have an aura of undeserved scientific validity. Provisions that exist in the law for challenging such work are intended to be used to shield juries from pseudoscientific or "junk-science" opinions and tests that have no proven basis in scientific theory or practice. Although rare, these challenges can be used to disqualify such pseudoscientific evidence so that it never sees the inside of a jury room. Specifics regarding how various experts have misapplied or strayed from published and commonly accepted principles and techniques to arrive at scientifically unjustifiable conclusions, and challenges to those techniques and conclusions in the course of litigation are provided. The court that heard the challenges concurred that these techniques and conclusions lacked sufficient scientific basis to be admitted as evidence and barred related testimony from being presented in the courtroom, dealing a devastating blow to the credibility of these experts and to the plausibility of their client's case. Adding insult to injury, not only was the testimony of these experts barred by the courts, but their client was eventually required to refund millions of dollars in opposing experts' fees. Experts reading this paper should consider themselves duly warned that "making it up" and using pseudoscientific techniques or tests can result in more than appearing foolish on the witness stand; you can actually hurt your client far more than might seem possible.