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To the Editor:
As a child neurologist and attorney who has studied the expert witness process, I applaud Drs. Freeman and Nelson’s model for expert witness oversight that could form the foundation for an ideal medical model for expert testimony.1 However, several of their statements are not consistent with current legal “requirements” for scientific experts in US courts. Peer review, evidence-based literature support and “general acceptance in the scientific community” are parameters that judges can consider, but are not required, prior to permitting scientific testimony to be admitted into evidence.2 The reasons for this are complicated but can be ascertained via a review of the Daubert case2 and its progeny (e.g. Kumho, Joiner).
These respected physicians express concerns that judges are neither experienced, capable, nor willing to challenge expert testimony. From anecdotal experience and conversations, I believe that many judges are equally irritated by improper testimony and do their best to correct the problem, even to the extreme.3 We should remember that the Daubert Court simply assigned the role of “gatekeeper” to judges in determining whether testimony is sufficiently reliable or relevant to be admitted at trial. The Court noted that it is up to …
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