Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER VIII: OPINIONS, SCIENTIFIC PROOF, AND EXPERT TESTIMONY
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D. Court-Appointed Experts (922)



Problem - Medical Malpractice (929)

Answer and Analysis:

The role of the experts is to assist the trier of fact to understand the evidence and thus to determine the fact in issue, i.e., what was the cause of P's death. Presumably, the jury cannot determine this fact without some assistance from an expert, otherwise there would have been no reason to call a witness who was not involved in the event in question. The role of the jury is to determine the fact in issue based on the evidence presented at the trial, including the experts' testimony. The problem is that if the experts disagree, how can the jury effectively perform its role? Because expert testimony is needed, this is presumptively a situation in which the jurors cannot decide the issue in question themselves. How then can the jury choose among experts?

The standard answer to this dilemma, which in our system of paid, partisan experts, occurs regularly, is that the jury can appraise the experts' credibility on the basis of their qualifications; demeanor, and the persuasiveness with which they present and defend their opinions. This seems at best logically inconsistent with the justification for the use of the experts in the first place; at worst, it is wishful thinking.

In this situation the judge has traditionally played the role of detached moderator and explainer of the law -- the "umpireal" role, (See Frankel, The Search For Truth An Umpireal View, 123 U. Pa. L. Rev. 1031 (1975)). In this model, the judge would let the experts give their conflicting opinions, charge the jury on the law, and leave it to the jury to figure out which expert to believe. A modem trend somewhat in opposition to the traditional role of the judge has developed. This is the "managerial" role. (See Resnick, Managerial Judges, 96 Harv. L. Rev. 376 (1982)). In this model of the judicial role, the judge might intervene more actively to obtain additional information for the fact finder so that the fact finder can more intelligently choose between conflicting partisan experts.

FRE 706 is a device the judge can use to obtain more information for the jury. Under this rule, the jury can hear expert testimony from a neutral expert, subject to cross-examination by both parties. FRE 706 even permits the parties to nominate persons to be the neutral expert. In many cases, skillful application of this rule can result in the parties agreeing on the neutral expert and dispensing with their own partisan experts. This should not only promote more accurate fact-finding, it will promote settlement and save transaction costs.


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