The Expert Witness Exchange

Marketplace Platform for Aspiring and Experienced Litigation Support Professionals

There is no disputing the influence that expert witnesses have on litigation outcomes—this much we know for sure. Their expertise is often relied upon by the court in rendering decisions, weighing the opinions, methodology, and, indeed, the credibility of the competing expert witnesses involved for each party to the legal dispute. Considering what is at stake, it therefore behooves litigators to be exquisitely careful and circumspect in their expert witness retentions and due diligence practices. In this article, the authors discuss surprises that may arise and how those may affect the outcome of litigation.

[su_pullquote align=”right”]Resources:

Experts Sabotaging Themselves in Court—The Judges Tell All

The Expert’s Role in Financial Litigation—Real-World Guidance for Managing the Engagement

Testimony at Trial: What the Trier of Fact Expects From the Expert

Who Wants to be an Expert? Expert Preparation for the Expert Deposition

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There is no disputing the influence that expert witnesses have on litigation outcomes—this much we know for sure. Their expertise is often relied upon by the court in rendering decisions, weighing the opinions, methodology, and, indeed, the credibility of the competing expert witnesses involved for each party to the legal dispute. Considering what is at stake, it therefore behooves litigators to be exquisitely careful and circumspect in their expert witness retentions and due diligence practices. Perhaps, due to the competitive nature of expert witness work, human nature, or the lack of a universal, standardized credentialing body to track the credentials, background, or relevant employment experience of those who elect to participate in the judicial process as expert witnesses, there exists a reoccurrence of instances where some have been caught misrepresenting their licensure, academic credentials, certifications, and work history. In some instances, the circumstances are far more benign, yet still cause difficulties and considerable angst.

For example, licenses and certifications may have been surrendered or lapsed. Even if aware, an expert witness may not deem it a material matter to bring to the attention of retaining counsel. Whether arising from benign oversight or purposeful deceit, such revelations, rooted in the lack of a verification mechanism, may be devastating in all forms of litigation, presenting opposing attorneys a set of circumstances that may be leveraged for use at trial or in an effort to impose more favorable settlement terms. It is the Expert Witness Validation Committee’s view that an expert witness’s misrepresentation of credentials, deliberate or otherwise, is clearly harmful to the adversarial system of justice, in that it: adversely impacts the interests of the parties involved; harms attorney client relations; and erodes confidence in the judicial system itself.

Unfortunately, due to the many burdens which attorneys must tend to throughout the process of litigation, the detail of expert witness credential and background verification is often overlooked. Far too often, retaining attorneys and even opposing legal counsel will make a “leap of faith”, and assume that all material information presented on an expert’s curriculum vitae (CV) is accurate. These kinds of presumptive oversights are perilous, and there exists an entire body of cases where experts across scientific and forensic disciplines have been caught misrepresenting and embellishing their licenses, certifications, academic credentials, work history, and the like, wreaking veritable havoc on case outcomes.

An example of this is a matter involving a prominent expert in the field of economics and licensing transactions, Richard Gering, who had claimed to possess a PhD from the University of Maryland. In the numerous cases in which he testified or authored opinions, this assertion had not been questioned nor verified. It appears that Mr. Gering may have attended the university, but never obtained the credential.¹ In consequence of that revelation, a malpractice lawsuit and fraud complaint had been lodged; the finality of judgment was being contested in a separate case that had already concluded;² and on yet another pending case, the trial schedule had been disrupted, as retaining counsel was then forced to seek a substitution of experts over the objections of opposing counsel.³

In granting permission for counsel to substitute an expert for Mr. Gering, even though it would cause delay, and while reserving on the issue of awarding expenses and attorneys’ fees to opposing counsel that had been requested, District Court Judge O’Neil cited the case of U.S. ex rel. Suter v Nat’l Rehab Partners, Inc., which noted as follows: “…[A]lthough the Court agrees that a party should investigate the background of a potential expert witness, this Court doubts that it is general practice for attorneys to contact universities to obtain evidence that an expert received a degree.”⁴

Mr. Gering, of course, was not the first expert to have been caught misrepresenting credentials. Unfortunately, this has been a reoccurring problem for many years. In a past criminal case, Drake v. Portuondo, a psychology expert was caught not only falsifying his extensive work experience, but also completely fabricating his testimony surrounding a fictional syndrome that he had invented to establish the defendant’s intent in murdering his two classmates.⁵ Years after his opportunities for appeal had been exhausted, the defendant discovered through his own research in prison that: the expert witness had never performed criminal profiling in the Los Angeles County Medical Examiner’s Office; was never an adjunct professor at Northern Michigan University; and had never testified as an expert witness in a criminal proceeding during the time period that he claimed; all of which the expert had listed as experience on his personal CV.

There have been multiple instances involving medical professional experts who were caught misrepresenting and/or exaggerating their credentials. A few of the more notable cases include:

• State v. Plude— Expert Dr. Saami Shaibani found to not actually be a medical doctor, nor a clinical professor at Temple University.⁶
• In re Vioxx Products—Cardiology expert, Dr. Barry Rayburn, found to have misrepresented the validity of his board certification, as his certifications had all expired.⁷
• Snyder v. Foote—The Court held that evidence proving a pediatric expert witness had mis-stated his credentials in a previous unrelated trial constituted reversible error.⁸
• Hamilton v. Negi— Plaintiff’s expert witness, Velva Boles, MD (Dr. Boles), was found to have omitted a period of probation during her residency at Tulane University Hospital in 1996; that her medical responsibilities were placed on administrative suspension in 1998; a period of suspension in 1998 for unexcused absences; and a period of administrative leave, also in 1998, for having ordered an excessive dose of potassium to be administered to a patient.⁹

Construction and engineering disciplines have not been spared either. In the matter of Kulbicki v. State, falsified transcripts from two separate higher education institutions were implicated where the expert claimed to have earned degrees in engineering. In fact, the expert had not been accepted to either of the schools that he had claimed to have earned the degrees from.¹⁰

A more comprehensive case compilation, where post retention expert credential scrutiny has led to a variety of evils, drives home the widespread impact that this phenomenon has had across a variety of disciplines. The compilation has been published through www.expertwitnessexchange.com, and the cases discussed involve expert witnesses in the following disciplines:

• Psychology
• Medical Professional
• Cardiology
• Pediatrics
• Psychobiology
• Dentistry
• Securities Trading, and Investment
• Restaurant, Lodging, and Food Industry
• Construction and Engineering
• Ballistics
• Technology
• Toxicology
• Oil and Gas
• Document Analysis

Taking a hard look at the challenge presented, it is self-evident that both the attorney and expert witness communities have a common interest in minimizing the risks of false and exaggerated credentials being proffered. The introduction of a mechanism for expert credential verification, including a validated expert registry to be updated annually and/or upon request, is a sensible development that has been a long time coming. The drive behind the Expert Witness Validation Badge™ effort is to provide an enhanced level of assurance that experts who bear the digital Badge are a valid participant in the judicial process.

The Expert Witness Validation Badge™ is one way in which Expert Witness Exchange is working to benefit attorneys, expert witnesses, and the judiciary process. A full listing of the requirements, limitations, and conditions of the Expert Witness Validation Badge™ can be found on www.expertwitnessexchange.com.

¹ Mr. Gering does, evidently, hold a credential as a certified licensing professional (CLP) per CLP’s website registry for the excellent qualitative credential which they do offer in this field; but inferentially, did not verify Mr. Gering’s educational background.

² DePuy Synthes Products, LLC v. Globus Med., Inc., No. CA 11-652-LPS, 2013 WL 1897833, at *1 (D. Del. May 7, 2013).

³ Synygy, Inc. v. ZS Associates, Inc., No. CIV.A. 07- 3536, 2013 WL 3716518, at *1 (E.D. Pa. July 15, 2013).

⁴ U.S. ex rel. Suter v. Nat’l Rehab Partners, Inc., No. 03-15-S-BLW, 2006 WL 3531647, at *1 (Dec 6, 2006).

⁵ Drake v. Portuondo, 321 F.3d 338 (2d Cir. 2003).

⁶ State v. Plude, 2008 WI 58, ¶ 23, 310 Wis. 2d 28, 39, 750 N.W.2d 42, 48.

⁷ In re Vioxx Products, 489 F. Supp. 2d 587, 591-92 (E.D. La. 2007).

⁸ Snyder v. Foote, 822 P.2d 1353 (Alaska 1991).

⁹ Hamilton v. Negi, No. 09-CV-0664, 2012 WL 1067857, at *3 (W.D. La. Mar. 15, 2012) report and recommendation adopted, No. CIV.A. 09-860, 2012 WL 1067897 (W.D. La. Mar. 29, 2012).

¹⁰ Kulbicki v. State, 207 Md. App. 412, 53 A.3d 361 (2012) rev’d, 440 Md. 33, 99 A.3d 730 (2014).

Dr. Paul Powers served as the chair of the Expert Witness Validation Committee, an advisory panel established by the Expert Witness Exchange, LLC., a Delaware for-profit corporation.

Dr. Powers can be contacted at (860) 206-5012 or by e-mail to powers@Chirocredit.com.

Samuel Lisi attended University of Connecticut School of Law, where he earned his juris doctorate degree in the spring of 2016. He also served as secretary to the Expert Witness Validation Committee.

Mr. Lisi can be contacted at samuelanthonylisi@gmail.com.