Monday, April 8, 2013

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There?s a common belief that the pending concussion litigation against the NFL ultimately will result only in the lawyers making money.

The so-called expert witnesses likely will, too.

Often overlooked in complex litigation involving esoteric medical knowledge and jargon is the fact that the men and women who have the education and experience to share that knowledge and jargon with a judge and a jury get paid a lot of money.

That reality routinely results in a blurring of ethical lines.? According to Steve Fainaru and Mark Fainaru-Wada of, Dr. Robert Cantu previously served as a senior adviser to the NFL?s Head, Neck and Spine committee ? but he also has consulted with the lawyers who are suing the NFL on behalf of thousands of former players.

?It was an informational session, just like I get paid to give a talk someplace else,? Cantu said of a February 2012 presentation to the lawyers representing the players.? He also justified working for the players suing the league by explaining that the NFL could hire him to serve as an expert witness, which would block from him talking to those suing the league.

?If [the NFL] wanted to put me on their payroll, to defend their case, then I?m not gonna say boo about those issues [to the plaintiffs],? said Cantu, who gets $800 per hour for legal services, $5,000 for depositions, and $8,000 per day for trial testimony.

Cantu?s attitude underscores one of the biggest problems with the litigation industry.? Many experts aren?t necessarily motivated by the pursuit of justice but by the supplementation of their total income with the exorbitant fees they charge.? And since there?s plenty of discretion to be exercised when telling the truth, their testimony often can be molded to help whichever side of a case hires them first.

Here?s a concrete example, for those of you who are still awake.

Eleven years ago, I represented a former employee of a major U.S. low-cost big-box retailer who had been forced to take an alcohol test under circumstances that, as the jury concluded, didn?t justify an invasion of the employee?s privacy rights via the drawing of a blood sample.? The case included testimony from an expert witness who had been hired by the employer to justify the conclusion, based on the blood-alcohol concentration measured by the test, that the employee had indeed been intoxicated at work.

On cross-examination, I confronted the expert witness with a passage from a written report on the issue of blood-alcohol testing.? In the report, the author expressed concern about the reliability of efforts to use blood-alcohol measurements to determine a person?s BAC at an earlier point in time.

I read the sentence to the expert witness, and I asked the expert witness if he agreed with the statement.

He said, ?No.?

So I read it to him again, slowly.? I asked him if he agreed with that statement.

Again, he said, ?No.?

So I handed him the report, showed him the first page of it, and asked him to tell the judge and the jury who had written the report.

The expert witness, after taking a gulp, said his own name.

And that?s pretty much all I ever needed to know about the world of expert witnesses.


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