The Expert Witness Exchange
Marketplace Platform for Aspiring and Experienced Litigation Support Professionals
Until now, a lawyer could not put out a call for help with a single case description and submit that to one, a dozen, or an entire community of relevant subject matter experts simultaneously with the single push of a button. Until now, an expert might have to choose between paying for advertising to be listed in a directory and/or set up their own website in the hope that additional expert witness consulting work would flow to them. The Exchange’s marketplace offers a different paradigm and value proposition. This has been a long time coming and will serve the interests of both the legal and expert witness communities in support of the justice system which the collaboration is meant to serve.
[su_pullquote align=”right”]Resources:
Testimony at Trial: What the Trier of Fact Expects From the Expert
Experts Sabotaging Themselves in Court—The Judges Tell All
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You may have heard that the Exchange is launching a Marketplace Platform to integrate the advantages that an internet-based service Marketplace Platform provides for expert witness location and retention to lawyers and their staffs. Maybe you have taken the time to visit our website and watch the explainer video (www.expertwitnessexchange.com). Connecting the legal community to a national network of subject matter experts not only facilitates timely information flow, with filtering options as one might find when searching for travel or lodging on the internet, but also puts the power of a network in the hands of the those participating. Until now, a lawyer could not put out a call for help with a single case description and submit that to one, a dozen, or an entire community of relevant subject matter experts simultaneously with the single push of a button. Until now, an expert might have to choose between paying for advertising to be listed in a directory and/or set up their own website in the hope that additional expert witness consulting work would flow to them. The Exchange’s marketplace offers a different paradigm and value proposition. This has been a long time coming and will serve the interests of both the legal and expert witness communities in support of the justice system which the collaboration is meant to serve.
The Exchange believes that the key to broad expert witness and legal community adoption is education and awareness of how such a platform saves each time and money while generating new business for participating subject matter experts. That is the purpose of this article, to start the dialogue and gain support from early adopters who will be patient with us while we test and improve the platform before full scale deployment can occur. Sincere thanks and gratitude is owed to Parnell Black and the entire NACVA board for seeing the promise and supporting our mission. As a number of NACVA members may be aware, the Exchange’s CEO, Mindy Sungenis Black, led the custom search industry for a number of years, serving as TASA’s CEO until accepting the challenge to steer a startup with a big agenda and a big task ahead. It is fair to say that the Exchange’s value to all members increases exponentially with each new member who commits to membership. Particularly in the early years of the Platform’s existence, making sure that the most highly talented, ethical, and vetted subject matter experts participate fully is a priority of the very first order.
- During the Conference, we encourage you to visit with Mindy and learn more about the concierge service offering we have fashioned to assist with your profile build out, the Validation Badge credential (explained below) and options including participating in a pro-bono offering geared towards connecting lawyers who are themselves serving in a pro-bono capacity on a matter in need of a subject matter expert willing to do the same. The truth is, everyone is a stakeholder in the vibrancy and integrity of this endeavor and the Exchange will profit most if its members gain new business and are anchored to the long-term success of the platform considering the duration that their careers as experts and litigators will span.
- We are different than all other attorney/expert witness matching sites in that the marketplace not only provides the network capacity and functionality to connect as previously explained but also to conduct commerce right on the platform using integrated invoicing and payment systems from leading payment company, STRIPE. We are now fully engaged in accepting experts into the marketplace to register and claim/build their profile as the case may be (free for a limited time). Due to the partnership between the Exchange and NACVA, members of NACVA have other continuing advantages which enable risk free participation for its members on an ongoing basis (i.e., the Exchange earns its money and processes the Validation Badge application required to activate one’s profile upon the member’s first expert witness engagement unless the member elects to do so earlier which we will shortly be encouraging. The Exchange invites you to become familiar with an ancillary service offering consisting of an Errors and Omissions insurance policy covering expert witness consultancies, negotiated at group rate discounts with a subsidiary of Lloyds of London and administered via Lockton, a national licensed brokerage.
Due to the popularity of the request for more of an explanation about why the Exchange had formed a committee and created the Validation Badge credential which is now integrated into the process of activating a subject matter expert’s profile, this will be explained in some detail, borrowing from a paper which the former Chairman of the Validation Badge Committee, Dr. Paul Powers, and Sam Lissi, then a JD candidate and now lawyer, both previously wrote on the subject. 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 more often than not, retaining attorneys and even opposing legal counsel will make a “leap of faith”, and assume that all material information presented on an expert’s 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.
Making headlines recently 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 has been lodged; the finality of judgment is being contested in a separate case that had already concluded;[2] and on yet another pending case, the trial schedule has been disrupted, as retaining counsel is now 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, i 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 misstated 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]
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 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.
A full listing of the requirements, limitations, and conditions of the Expert Witness Validation Badge can be found on 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).
Paul Levin is Director of Product and Services Development at The Expert Witness Exchange. Mr. Levin is a trial attorney and litigator involved in tort claims with over 25 years of experience in state and federal courts. His practice has focused on complex civil litigation necessitating the involvement of expert witnesses across a wide range of scientific, financial, and clinical disciplines. Mr. Levin holds his Juris Doctorate from California Western School of Law and a Bachelor of Science in Accounting issued by Nova University.
Mr. Levin can be contacted at (860) 206-5012 or by e-mail to info@expertwitnessexcange.com.
