Kevin Garcia
Expert Witness Bias in Slip and Fall Litigation
Expert testimony plays a vital role in slip and fall litigation; typically, jurors have to make
complex decisions regarding areas such as building codes, traction surfaces, lighting conditions,
and the proper maintenance of premises, which generally are beyond the average juror’s expertise
and knowledge base. Therefore, expert witnesses provide a critical component in helping jurors
understand the legal implications of liability and causation relative to the case being decided.
As such, the influence of expert witnesses raises an essential question; are expert witnesses who
testify in slip and fall cases entitled to stricter evaluation of potential bias so that the amount
of potential bias can be minimized? Is it either feasible or acceptable to remove all bias from
expert witness testimony?
Importance of Expert Witness Testimony to a Jury
In slip and fall litigation, jurors often rely heavily on expert witness testimony because, the
determination of liability is commonly based on technical evaluations and analyses rather than
direct observation by a witness. Courts acknowledge the reliance on expert testimony and permit
the testimony of experts if the testimony will assist the trier of fact in understanding the
evidence or assist in determining a fact in dispute in the case. Personal injury cases frequently
involve expert testimony in regard to safety standards, the foreseeable nature of hazards, or
whether a particular condition creates an unreasonable risk.
On the other hand, the perceived authority of expert witnesses provides potential risks. Jurors
may place undue emphasis on the credentials of the expert witness or the use of technical language
when evaluating expert testimony, thereby possibly overlooking discrepancies in the evidence or
using reasonableness that could have been used in evaluating the evidence. When competing experts
present differing conclusions, jurors may find it difficult to identify the credible basis of the
expert’s opinion versus the persuasive aspect of the expert’s opinion. This dynamic supports the
necessity of having a court system that has effective oversight of expert testimony.
Reviewing the Use of Expert Witness Testimony in Trial Proceedings
Expert testimony must continue to be reviewed on a continuous basis in relation to the use of
expert testimony in trial proceedings. Expert opinions are not statements of fact; they are
assessments made by professionals based on their experience, assumptions, and methodology. In
slip and fall cases, where the issue of liability may depend on minute factors (such as surface
conditions, lighting adequacy, etc.) expert testimony should be an aid to the jury, not a
replacement of the jury’s own deliberative processes.
Courts and counsel are responsible for ensuring this balance between expert testimony and the
jury’s independent decision-making. Cross-examining the expert, presenting opposing experts, and
providing clear directions to the jury on what constitutes expert testimony are all tools that
help the jury to understand that expert witnesses may reasonably disagree with each other and to
evaluate the credibility of the expert based on those differences.
Role of the Court in Evaluating Expert Witnesses
The court is the primary gatekeeper for determining whether expert testimony will be permitted
into evidence. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme Court established
that the judge has a duty to determine whether proffered expert testimony meets two criteria: that
the testimony is relevant to the issue being tried and that the testimony is reliable.
The Court provided several criteria that judges can consider in making this determination
including: testability, peer review, error rates, and general acceptance within the relevant
scientific community.
In the context of slip and fall litigation, the application of stricter vetting criteria can help
to preclude speculative or methodologically unsound expert testimony from being admitted into
evidence and therefore from being heard by jurors. Judges should scrutinize the qualifications of
experts as well as the reliability and consistency of the methodologies employed by the experts.
Experts who frequently testify for only one side may require additional scrutiny to assure that
their opinions are generated through analysis rather than through advocacy.
While stricter vetting criteria are intended to help to preclude unreliable expert testimony from
reaching jurors, such criteria should not serve as an exclusionary mechanism. The purpose of the
judge’s gate-keeping role is to preclude unreliable testimony from being presented to jurors; the
goal is not to exclude legitimate professional disagreement.
Risk of Bias in Expert Witness Testimony
Bias does not always result in erroneous testimony. Professionals by definition bring their
experiences and viewpoints into their assessments. Frequently, the source of bias lies in the
professional’s area of specialization and not in their honesty. An engineer who regularly
testifies on behalf of plaintiffs may still employ sound scientific principles, whereas a defense
expert may arrive at accurate conclusions regardless of the frequency of his representation of
defendants.
A greater concern is the degree to which biases may go unreported or misrepresented. However,
with sufficient transparency, jurors will be able to assess the credibility of the expert through
cross-examination. Courts have traditionally relied upon the adversary process to expose the
deficiencies in the expert testimony rather than relying on categorical exclusions.
Finding the Correct Balance
Stricter vetting criteria can reduce the likelihood that biased or unreliable expert testimony
will mislead jurors in making their decisions. Stricter vetting criteria should focus on the
reliability of the methodology employed by the expert, the disclosure of the expert’s opinions,
and the consistency of the expert’s testimony rather than focusing on eliminating completely the
inherent subjectivity in expert judgments.
Expert testimony continues to be necessary in slip and fall litigation. Strong gatekeeping
standards can be maintained while permitting jurors to evaluate the credibility of expert
testimony through transparency and cross-examination. By doing so, the value of expert testimony
can be preserved while continuing to maintain fairness in the trial process. Ultimately, bias
should be disclosed and evaluated in the trial process, rather than eliminated.
Bibliography
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
- Federal Rule of Evidence 702.
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).