Blinded experts

Blinded experts 03 December 2012

Reducing expert witness bias in litigation by introducing a neutral intermediary that selects genuine experts.

Expert witnesses are crucial to resolving disputes about specialised subject matter, such as medical malpractice. In the United States, experts are generally retained by the litigants. However, the credibility of such experts is undermined by the charge that they are "hired guns" biased by the opinions of the party which retained them. A litigant who produces an expert free of this bias has a tremendous advantage, and justice is better served.

A blinded expert is provided the facts of a case and asked to render an opinion prior to learning which side has retained her/him. This requires an intermediary between the attorney and the expert. The attorney notifies the intermediary of the need for an expert, along with the desired qualifications (e.g. education, experience, hourly rate, etc.) The intermediary then proposes one or more potential experts for the attorney's approval. The expert selected is then furnished the pertinent records of the case by the intermediary, while being kept blind to the party which has requested an opinion. The expert formulates an opinion, and commits it to writing. Only then may the attorney and the expert have direct contact. At the time of testimony, the expert's opinion can be bolstered by reviewing the circumstances under which it was formulated. In appropriate settings, such as the determination by a medical expert of whether or not a breach of the standard of care occurred, an additional form of blinding may also be employed to produce a more objective opinion: the information provided to the expert may be limited to that which was available to the defendant. For example, an expert set to determine whether the standard of care was met by a physician in an emergency department is only furnished with information which was available to that physician at the time, but not given information about subsequent developments.

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