Cooper & Elliott Blog

Credibility Abused: The Case Against Junk Science

Posted on Wed, Aug 23, 2017 @ 3:51 PM

We all enjoy a good story. But fiction has no place in the courtroom.

The quest for truth is the foundation of both science and litigation. Science depends on truths that are observable, repeatable, and beyond subjective interpretation.

Likewise, judges and juries depend on finding the truth through strict rules of evidence and testimony delivered under oath. Yet those restrictions, in themselves, offer no guarantee that truth will prevail.

What happens when questionable science is used in the courtroom to manipulate the truth and outcome of a personal injury or wrongful death case? The answers can vary, but we do whatever we can to protect our clients from being further victimized by what can best be described as “junk science.”

Junk science in personal injury cases

We label it “junk science” when the defense calls an expert witness whose testimony introduces a pseudoscientific explanation that reshapes the actual facts of the case.  It’s not unusual for that reshaping to strain credibility and even push the limits of common sense. But with enough credentials and sincerity, the witness can easily sell junk science to an unsuspecting jury.

Junk science isn’t really science at all. But the trappings are there, which is what can make it so effective in bending the truth—and so potentially devastating to a case.

Below are some examples and explanations of what experienced personal injury attorneys can do to help jurors see beyond the credentials and recognize junk science for what it really is.

The ‘agony’ of litigation

In one recent case, our client was in chronic pain months after an injury had occurred. The defense brought in a physician who testified that there was no physical reason why our client should still be in pain. By using his credibility as a doctor, he directly tried to minimize our client’s suffering and reduce potential damages.

The defense used the same witness to go even one step further.

He wasn’t going to call our client an outright liar because jurors don’t typically respond well to doctors who suggest that people in pain are lying. Instead, he speculated that our client’s pain was caused not by the injury, but by the stress of the litigation. According to his testimony, he believed the pain would almost certainly subside once the lawsuit was over.

There was no scientific or medical evidence to support that kind of claim. But the witness was a qualified medical expert. Who were the jurors to doubt him?

To counteract such blows, we must give the jurors good reasons to rely on their own common sense. There are a couple of ways we can go about it:

  • In the case mentioned above, we urged the jury to recognize the probability that this was not the first time the physician had been called upon to give this kind of testimony.

    We asked whether he had ever before made this kind of “diagnosis” in court. When he said that he had, we challenged whether he had ever followed up with those previous plaintiffs. Of course he hadn’t, so there was no way for him to confirm that his earlier predictions had been correct.

    Having done our homework, we had previously reached out to those plaintiffs and confirmed that their pain had not been the result of “litigation stress.”

  • Second, we have, on occasion, challenged an expert witness who suggests pain is a result of litigation, to back his or her claims with action. We ask if he or she would, under oath, agree to treat the plaintiff for any pain that might linger after the trial.

    Not surprisingly, they never commit. Their flimsy claims are exposed and the jurors are free to evaluate the testimony for what it is: junk science.

    On a more humorous note: Our request is typically met with strenuous objection from the defense, but by then our point has been made.

Knowing junk science when you see it

Frankly, our experience in recognizing and countering junk science in personal injury and wrongful death cases gives us an edge that our clients deserve. It’s bad enough that they’ve been wronged and injured by someone else’s actions or decisions. They don’t need to be wronged again by expert witnesses whose credibility doesn’t match their credentials.

If you find yourself needing someone to fight on your behalf for the truth, don’t hesitate to reach out to us with any questions you may have.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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