Indiana Law Review


Indiana Law Review
Volume 32 1998 Number 1

NOTES

Court-Appointed Expert Panels:
A Comparison of Two Models

Karen Butler Reisinger*

Introduction

Science and the law make uneasy partners. Expert testimony at trial in toxic
tort and product liability cases is unavoidable and increasingly complex.

1

This

creates two sources of difficulty for a federal trial judge: ( 1 ) how to manage the
potential venality and questionable science presented by some experts selected
by the parties;

2
and (2) how to understand the scientific issues well enough to

make admissibility decisions under the judge's role as "gatekeeper" of expert
testimony.

3

To address either issue, courts sometimes turn to court-appointed experts
pursuant to Federal Rule of Evidence 706 ("Rule 706").

4
In the first instance, a

neutral expert appointed by the court may provide a reference point for a jury
trying to determine the scientific truth based on biased testimony from party
experts.

5
Without the neutral expert, it is feared, juries cannot make just and

* J.D. Candidate, 1999, Indiana University School of Law—Indianapolis; B.S., 1985,
Purdue University, West Lafayette, Indiana.

1

.

See JOE S. CECIL & THOMAS E. WlLLGING, COURT-APPOINTED EXPERTS : DEFINING THE
Role of Experts Appointed Under Federal Rule of Evidence 706, at 3 ( 1 993), microformed
on Sup. Docs. No. JU 13.2:C 83/4 (U.S. Gov't Printing Office) [hereinafter Cecil & Willging
Study].

2. See id. at 13; see also Fed. R. EviD. 706 advisory committee's note.

3. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993) (stating the role of
the judge in determining the admissibility of scientific evidence is a "gatekeeper"). The Court in

Daubert held Federal Rule of Evidence 702 ("Rule 702") sets the standard for admission of

scientific testimony by an expert. Id. at 587. Rule 702 states: "If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education,

may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702.

4. See CECIL & WlLLGING STUDY, supra note 1, at 3-5. In contrast to Rule 702, which
guides ajudge in qualifying expert witnesses, Rule 706 allows a judge to appoint an expert witness

to testify at trial. FED. R. EviD. 706.

5. See Developments in the Law—Confronting the New Challenges ofScientific Evidence,
108 HARV. L. Rev. 1583, 1589 (1995) [hereinafter Developments in the Law].



226 INDIANA LAW REVIEW [Vol. 32:225

consistent determinations.
6

In the second instance, a court-appointed expert may
assist the judge in determining whether the methodology behind a proffered

opinion is based on scientifically valid principles.
7
Judges know the law but need

help wading through the scientific principles involved in complex litigation such

as toxic torts. A court-appointed expert could help teach the court enough for
sound decision-making during the admissibility phase of the pretrial process.

8

Some complex issues, however, need more than one expert. For example,
causation in toxic torts is a particularly difficult area.

9
There can be three types

of problems: (1) whether the substance has the capacity to cause the disease

suffered by the plaintiff;
10

(2) whether the particular plaintiff contracted the

disease because of exposure to the agent and not for another reason existing in

the general population;
11
and (3) whether the particular defendant being sued

produced the agent causing the plaintiffs disease.
12

Determination of the

capacity of a substance to cause the disease suffered by the plaintiffs (sometimes

called "general causation")
13

often involves complex interaction of scientific

disciplines including toxicology, epidemiology, and other branches ofmedicine.
14

To understand this interaction, more than one expert must help the jury or the
judge make an appropriate assessment of the science involved.

Court-appointed expert panels raise uncertainty for litigants that they will

receive fair treatment from juries. Aspects of the adversarial system such as

party autonomy and impartial decision-making
15
are compromised when court-

appointed expert panels testify at trial. Parties want to control the presentation

of the testimony to a jury to ensure fairness.
16

Juries, as impartial decision-

makers, bring social conscience into the litigation process.
17

Courts have been

6. See id. at 1585-86, 1589 (discussing the errors in decision-making by juries without

accurate evidence and suggesting court-appointed experts could alleviate this problem).

7. See Cecil & Willging Study, supra note 1 , at 1 2.
8. See, e.g., Bert Black et al., Science and the Law in the Wake ofDaubert: A New Search

for Scientific Knowledge, 72 Tex. L. Rev. 715, 795-96 (1994) (suggesting court-appointed experts

as a method for applying the Daubert test); Joe S. Cecil & Thomas E. Willging, Accepting
Daubert 's Invitation: Defining a Rolefor Court-Appointed Experts in Assessing Scientific Validity,

43 EMORY L.J. 995 (1994) (advocating increased use of court-appointed experts).

9. See Jean Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence After

Daubert, 55 U. Pitt. L. Rev. 889, 890 (1994).

10. See id.

1 1

.

See id.

12. See id. at 903.

13. See id. at 896.

14. See id. at 896-98.

15. See Patrick E. Longan, Civil Trial Reform and the Appearance ofFairness, 79 MARQ.

L. REV. 295, 300 (1995) (setting out party autonomy and impartial decision-making as key aspects

of the adversarial system).

16. See id. at 300-02.

17. See Allan Kanner, The Evolving Jurisprudence of Toxic Torts: The Prognosis for

Corporations, 12 CardozoL. Rev. 1265, 1279-80(1991) (discussing the importance of the jury



1 998] COURT-APPOINTED EXPERT PANELS 227

reluctant in the past to appoint expert panels to testify at trial out of respect for

the adversarial system.
18

However, the judge's increased managerial role and his

role as gatekeeper of expert testimony likely will increase the need for court-

appointed expert panels in toxic tort cases.
19 Two recent appointments of expert

panels provide models for the judiciary in addressing this need.
20

Specifically, in May 1996, U.S. District Chief Judge Sam C. Pointer, Jr.
appointed a national expert panel, pursuant to Rule 706, to investigate the

causation data in the combined federal cases regarding silicone gel breast

implants.
21

Requested by the National Plaintiffs Steering Committee,
22
Judge

Pointer's order provides for an expert panel to review scientific data relevant to

the issues in the breast implant litigation, particularly general causation.
23 The

panel will serve as experts for any trial under the multidistrict litigation

umbrella.
24

However, following an initial "discovery-type," casual deposition

taken by the parties, an individual expert's testimony is limited to a video-taped

deposition presided over by Judge Pointer.
25

Parties will participate in the

videotaped deposition by cross-examining each expert about his findings.
26

in "doing justice" in toxic tort cases because it brings morals and values into the analysis that a

scientific expert would not).

1 8. See Cecil & Willging Study, supra note 1 , at 20. Most panels appointed to date either
assisted the court in understanding the issues or assisted the court in determining appropriate

reorganization plans. Compare, e.g., Pierce v. Murphy, 984 F.2d 196 (7th Cir. 1993) (court-

appointed expert panel recommended new procedures for children services department to reach

settlement agreement); Reed v. Cleveland Bd. of Educ, 607 F.2d 737 (6th Cir. 1979) (panel of

court-appointed experts assisted special master in evaluating a desegregation plan for Cleveland and

Ohio); Lightfoot v. Walker, 486 F. Supp. 504 (S.D. 111. 1980) (panel of experts appointed by the

court to evaluate prison system medical care), with In re Swine Flu Immunization Prods. Liab.

Litig., 495 F. Supp. 1 185 (W.D. Okla. 1980) (panel of experts appointed to testify in Swine Flu

suits). See also THOMAS E. WlLLGING, COURT-APPOINTED EXPERTS, 18 & n.62 (1986).
19. See Cecil & Willging, supra note 8, at 995-96; Stephan Landsman, Of Witches,

Madmen, and Products Liability: An Historical Survey ofthe Use ofExpert Testimony, 13 BEHAV.

SCI.&L. 131, 154-55(1995).

20. In re Silicone Gel Breast Implant Prods. Liab. Litig., Order 31 (N.D. Ala. 1996), 4

Mealey's Litig. Rep.: Breast Implants, June 13, 1996, at F-l [hereinafter Order 31]; Hall v.

Baxter Healthcare Corp., 947 F. Supp. 1387, 1392 (D. Or. 1996).

2 1

.

Order 3 1 , supra note 20, at F- 1

.

22. Id. The National Plaintiffs Steering Committee is a group of individuals appointed by

the court to coordinate litigation efforts on behalf of all plaintiffs participating in the multidistrict

litigation.

23. Id. at F-4. Judge Pointer made subsequent modifications to his original order. See

Mealey's Litig. Reps.: Breast Implants, May 1996-Nov. 1996. The most significant of the

modifications further defined the parameters for the working of the National Science Panel. See

infra notes 205-07, 211 and accompanying text.

24. Order 3 1 , supra note 20, at F- 1

.

25. Id. at F-5.

26. Id.



228 INDIANA LAW REVIEW [Vol. 32:225

By contrast, in December 1996, U.S. District Judge Robert E. Jones filed an
opinion and order describing a Federal Rule of Evidence 104(a) ("Rule 104(a)")

admissibility hearing
27

in which he employed four court-appointed experts to act
as his advisors.

28
Judge Jones appointed the experts using the inherent power of

the court.
29

The parties' experts presented their evidence and answered questions
from the court, the panel of appointed advisors, and the parties themselves.30

Each advisor submitted a report, and the parties raised questions about the reports

before Judge Jones issued his ruling.
31

The processes of appointing experts pursuant to Rule 706 and under the
inherent authority ofthe court raise questions of party autonomy and fairness that
judges need to consider before following either model. This Note ascertains
which court-appointed panel model is more appropriate for the adversarial
system. Part I reviews the history of court-appointed experts in our system. Part

II discusses modern justifications for and opposition to court-appointed experts.
Part III focuses on expert panels appointed by the court: reviewing arguments for

their use during and before trial; looking in detail at the two models provided by
judges in the breast implant litigation; and comparing the models in the context

of the adversarial process. This Note recommends that judges looking to utilize
court-appointed expert panels use a preliminary hearing model because it
represents the best balance of scientific certainty, party autonomy, and impartial

decision-making.

I. History of Court-Appointed Experts

Noted partisanship on the part of doctors testifying at trial during the 1 850s

prompted calls for reform of expert testimony.
32

Proposals for reform continued

through the early 1900s.
33

Judges responded to proposals by appointing their

own experts using the inherent authority of the court.34 These early court-

27. Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1392 (D. Or. 1996). See also Fed.

R.Evid. 104(a).

Preliminary questions concerning the qualification of a person to be a witness, the

existence of privilege, or the admissibility of evidence shall be determined by the court,

subject to the provisions of subdivision (b). In making its determination, [the court] is

not bound by the rules of evidence except with respect to privileges.

Id.

28. Hall, 947 F. Supp. at 1392-93.

29. Mat 1392.
30. Mat 1393.
31. Id. at 1394.

32. See Landsman, supra note 19, at 144-47.

33. See id. at 1 5 1 (citing Learned Hand, Historical and Practical Considerations Regarding

Expert Testimony, 15 Harv. L. Rev. 40 (1901); Roscoe Pound, Mechanical Jurisprudence, 8

Colum. L. Rev. 605 (1908)).

34. See, e.g., Ex parte Peterson, 253 U.S. 300, 312 (1920) (discussing the history of court-

appointed advisors).



1 998] COURT-APPOINTED EXPERT PANELS 229

appointed experts generally had the special skills necessary to assist the judge in
narrowing issues, interpreting complex financial data or auditing volumes of
data.

35
Experts utilized in this manner preserved the litigants' Seventh

Amendment36 right to a trial by jury because their appointment only made the
judicial process more efficient by simplifying issues without making ultimate fact
determinations.

37
In addition, some experts could participate in preliminary

hearings to assist the judge in sorting evidence for presentation at trial.
38 Ajudge

might also enter an expert's report into evidence, provided the parties had an
opportunity to call rebuttal witnesses.

39
Courts likened court-appointed experts

to special masters, used at the time only in suits in equity.
40

The early cases laid
out broad authority for the trial judge to appoint and utilize an expert to make
preliminary findings, however, left the "ultimate determination of issues of
fact"

41
for the jury.

Courts continued utilizing the inherent power of the court to appoint various
specialists to assist the judge before or during trial.

42
However, one judge in

1962 expressed concern over the potential for abuse of the inherent power.
43

In

particular, he wanted to protect the parties from the surprise appointment of an
expert and he wanted to ensure the expert chosen had no hidden bias.

44
Even

with this judge's expressed concern and the enactment of the Federal Rules of

Evidence in 1975,
45

courts still enjoyed broad discretion to appoint advisors or

experts.
46

For example, the appellate court in Reilly v. United States*
1
found the

35. See id. at 313.

36. U.S. Const, amend. VII. The Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-

examined in any court of the United States, than according to the rules of the common
law.

Id.

37. See Ex parte Peterson, 253 U.S. at 309-10.

38. See id. at 310.

39. See id. at 311.

40. See id. at 312-14.

41. Id. at 310.

42. See Danville Tobacco Ass'n v. Bryant-Buckner Assocs., Inc., 333 F.2d 202 (4th Cir.

1964); Scott v. Spanjer Bros., Inc., 298 F.2d 928 (2d Cir. 1962). See also Cecil & Willging, supra
note 8, at 1001-04 (discussing recent uses of experts appointed to assist the judge at trial and

pretrial).

43. Scott, 298 F.2d at 932 (Hincks, J., dissenting in part).

44. Id

45. The enactment of the Federal Rules of Evidence in 1975 included express authority for

the court to appoint experts. See Fed. R. Evid. 706.

46. See, e.g., Reilly v. United States, 863 F.2d 149, 157 (1st Cir. 1988) (holding the district

court properly invoked the court's inherent power to hire a technical advisor to assist the judge in

making estimates of damage award in a medical malpractice case).

47. 863 F.2d 149 (1st Cir. 1988).



230 INDIANA LAW REVIEW [Vol. 32:225

district court's appointment of a technical advisor proper even though the judge
gave no notice to the parties.

48
However, that court was quick to point out the

impropriety of such action if the expert had been appointed by the court to testify
at trial.

49 The Reilly court attributed this finding to the difference between
technical advisors and experts who will testify at trial.50 Technical advisors,
appointed with the inherent power of the court, present no evidence at trial. 51 By
contrast, an expert appointed by the judge under Rule 706 presents evidence at
trial and is subject to deposition and cross-examination by the parties.

52
The

Reilly court apparently decided that a court's discretion to appoint expert

advisors is broader than that under Rule 706. A closer look at Rule 706 will
highlight some procedural safeguards that restrict a judge's inherent power53 and
outline some other purposes fostered by the Rule.

Federal Rule of Evidence 706 gives the court authority, upon its own motion
or the motion of a party, to appoint an expert witness.

54 To an extent, this rule

48. Id. at 155-56.

49. Mat 156.
50. Mat 155-56.
51. Mat 156.
52. Id. at 155-56. See also FED. R. Evid. 706(a).

53. See Reilly, 863 F.2d at 156 (stating Rule 706 establishes a procedural framework for

court-appointed expert witnesses); 3 J. WErNSTEiN & M. Berger, Weinstein's Evidence ^ 706[02]
at 706-15 (1988) ("The provisions of subdivision (a) of Rule 706 operate as restrictions on the

judge's common law power to appoint experts.") [hereinafter Weinstein's Evidence].

54. Fed. R. Evid. 706(a). Federal Rule of Evidence 706 states:

(a) Appointment. The court may on its own motion or on the motion of any party

enter an order to show cause why expert witnesses should not be appointed, and

may request the parties to submit nominations. The court may appoint any

expert witnesses agreed upon by the parties, and may appoint expert witnesses

of its own selection. An expert witness shall not be appointed by the court

unless the witness consents to act. A witness so appointed shall be informed
ofthe witness' duties by the court in writing, a copy of which shall be filed with

the clerk, or at a conference in which the parties shall have opportunity to

participate. A witness so appointed shall advise the parties of the witness'
findings, if any; the witness' deposition may be taken by any party; and the

witness may be called to testify by the court or any party. The witness shall be

subject to cross-examination by each party, including a party calling the

witness.

(b) Compensation. Expert witnesses so appointed are entitled to reasonable

compensation in whatever sum the court may allow. The compensation thus

fixed is payable from funds which may be provided by law in criminal cases

and civil actions and proceedings involving just compensation under the fifth

amendment. In other civil actions and proceedings the compensation shall be

paid by the parties in such proportion and at such time as the court directs, and

thereafter charged in like manner as other costs.

(c) Disclosure of appointment. In the exercise of its discretion, the court may



1 998] COURT-APPOINTED EXPERT PANELS 23

1

codified the practice federal courts already followed.
55

Similar to development

of the court-appointed expert process at common law, agreement of the parties
on the appointment is recommended, not required.

56
In addition, the Rule

provides no limit on the ability of the parties to call experts on their own.
57

Rule 706 departs from the common law in significant ways, however. Unlike
the traditional practice which allowed the judge to exercise broad discretion in
choosing and utilizing a court-appointed expert, Rule 706 imposes procedural

checks on the court's inherent power.
58

These checks include: (1) the expert

himself must agree to testify;
59

(2) the expert witness must inform the parties of
his findings;

60
(3) the parties must be provided an opportunity to both depose and

cross-examine the expert witness;
61

(4) the court must delineate the duties of the

expert in written form, filing a copy of the document with the court's clerk for
access by all parties;

62
and (5) the court's appointment decision is reviewed on

appeal with an abuse of discretion standard.
63 The advisory committee's notes

suggest Congress codified the inherent power of the federal court;
64

however,

addition of the "safeguards" in Rule 706 reflect an intent to minimize the

negative effects of court-appointed experts on the adversarial process. Each
safeguard appears to protect the parties' interests in controlling and contributing

to the fact-finding process while granting the court access to an impartial expert.

Rule 706 also effectively addresses concerns about notification of appointment

to the parties by encouraging their participation in the appointment process. The
parties' involvement in selection of an expert and the parties' ability to depose

and cross-examine the expert address concern about uncovering potential bias of

the appointed expert.

Adding procedural safeguards was not the only reason for adopting Rule 706.
Abuse of the judicial system by the use of partisan experts

65
and the need for

authorize disclosure to the jury of the fact that the court appointed the expert

witness,

(d) Parties' experts of own selection. Nothing in this rule limits the parties in

calling expert witnesses of their own selection.

Id.

55. See Fed. R. EviD. 706 advisory committee's note ("The inherent power of a trial judge

to appoint an expert of his own choosing is virtually unquestioned Hence the problem becomes

largely one of detail.").

56. Fed. R. Evid. 706(a); see also WlLLGlNG, supra note 1 8, at 6-7. *

57. Fed. R. Evid. 706(d).

58. See supra note 56.

59. Fed. R. Evid. 706(a).

60. Id.

61. Id.; see also, WEINSTEIN'S EVIDENCE, supra note 53, at 706- 15.

62. Fed. R. Evid. 706(a).

63

.

WlLLGlNG, supra note 1 8, at 3 (citing Gates v. United States, 707 F.2d 1141, 1 1 44 ( 1 0th

Cir. 1983)).

64. Fed. R. Evid. 706 advisory committee's note.

65. See FED. R. EviD. 706 advisory committee's note.



232 INDIANA LAW REVIEW [Vol. 32:225

more effective management of the federal court docket
66

also motivated

codification of the common law. Three specific concerns emerged. Availability
of experts was the first issue.

67
Experts avoided involvement with litigation

because they distrusted the adversarial process to represent their views in an

objective fashion or to expose the scientific truth.
68 A process allowing for

neutral expert testimony alleviated this concern. Rule 706 permits such

testimony.

Enactment of Rule 706 also attempted to discourage the practices of

"shopping for experts" and venality.
69

Shopping for experts is a partisan practice

whereby parties select an expert based on the conformity of the expert's opinion

to that party's theory of the case. This practice, according to commentators,

helps obscure the truth rather than reveal it for resolution by the jury.
70

Enactment of the Rule also sought to decrease "junk science" in the courtroom.
71

"Junk science" is a term developed to describe the type of expert testimony relied

upon by some plaintiffs which is purported to lack credible scientific
foundation.

72
According to the advisory committee, in addressing these

problems, Rule 706 overtly threatens the appointment of a neutral expert by the

66. See Landsman, supra note 1 9, at 1 54 (discussing the increased pressure on federal courts

to manage litigation because of the rising number of cases being brought in federal court).

67. See FED. R. EviD. 706 advisory committee's note.

68. See Landsman, supra note 19, at 144-46.

69. See FED. R. EvlD. 706 advisory committee's note. A venal expert is one whose opinion
tends to change based, in part, on his fee, or, based on the position of the party that hired him. See

Developments in the Law, supra note 5, at 1586; see also BLACK'S LAW DICTIONARY 1 555 (6th ed.

1990) (defining venal: "[Pjertaining to something that is bought; capable of being bought; offered

for sale; mercenary. Used usually in an evil sense, such purchase or sale being regarded as corrupt

and illegal.").

70. See E. Donald Elliott, Toward Incentive-Based Procedure: Three Approaches for

Regulating Scientific Evidence, 69 B.U. L. REV. 487, 493 (1989) (commenting "an expert's

testimony can be used to obfuscate what would otherwise be a simple case"); Landsman, supra note

19, at 148-51 (discussing the effect of expert venality on fact-finding and tracing the development

of expert shopping from the mid-nineteenth century to the present). See generally Samuel R. Gross,

Expert Evidence, 1991 Wis. L. REV. 1113 (outlining the problems with partisan expert testimony

and suggesting reforms using court-appointed experts); John H. Langbein, The German Advantage

in Civil Procedure, 52 U. CHI. L. Rev. 823, 833 (1985) (contrasting the German fact-finding

process with the American adversarial fact-finding process and recommending the adoption of a

system in the United States where the judge plays a more managerial role in the fact-finding

process).

71

.

Fed. R. Evid. 706 advisory committee's note.

72. See Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom 2

( 1 99 1 ); Ellen Relkin, Some Implications o/Daubert and Its Potentialfor Misuse: Misapplication

to Environmental Tort Cases andAbuse ofRule 706(a) Court-Appointed Experts, 1 5 CARDOZO L.

Rev. 2255, 2255 n.3 (1994).



1998] COURT-APPOINTED EXPERT PANELS 233

court.
73

In theory, it was proposed, "the availability of the procedure in itself

decreases the need for resorting to it. The ever-present possibility that the judge

may appoint an expert in a given case must inevitably exert a sobering effect on
the expert witness of a party and upon the person utilizing his services."

74
In

addition, parties usually end up paying for court-appointed experts,
75

increasing

their overall costs. This aspect of the rule supports a theory that parties would

rather address venality and unreliable science issues themselves, rather than

paying for another expert.
76

By enacting Rule 706, its developers sought mainly to improve the quality
oftestimony by party experts, not necessarily to encourage the use of appointed

experts at trial. Implied in this theory is a balance of the need for experts to help

resolve complex issues of science or technology and the virtues of party

autonomy inherent in the adversarial system.
77

Actual appointment of experts

was meant to be rare.
78

II. Modern Day Court-Appointed Experts

A. Justifications

All commentators seem to agree that the need for and the use of scientific

testimony in product liability litigation is likely to increase as products become

more complex and science advances more rapidly.
79

This trend coupled with

continued concern about "junk science"
80
and venal experts supports modern day

advocacy for increasing the use of court-appointed experts.
81

Further, the

73. See FED. R. EviD. 706 advisory committee's note. See also Pamela Louise Johnston,

Comment Court-Appointed Scientific Expert Witnesses: Unfettering Expertise, 2 HIGH TECH. L.J.

249, 261 (1987) (suggesting the advisory committee intended that judges use the threat of

appointment inherent in the rule, not the mechanism itself); Michael J. Saks, The Phantom ofthe

Courthouse, 35 JURIMETRICS J. 233, 234 (1995) (reviewing CECIL & WILLGING STUDY, supra note
1).

74. FED. R. Evid. 706 advisory committee's note.

75. See Fed. R. EviD. 706(b) (requiring parties pay for a court-appointed expert).

76. See the interesting discussion on a lawyer's responsibility to select an appropriate expert

in Dick Thornburgh, Junk Science—The Lawyer's Ethical Responsibilities, 25 FORDHAM URB. L.J.
449(1988).

77. See Saks, supra note 73, at 234.

78. See id.

79. See Cecil & Willging Study supra note 1 , at 3 (citing Judicial Conference of the
U.S., Report of the Federal Courts Study Committee 97 (1990)).

80. See supra notes 71-72 and accompanying text.

8 1

.

See Developments in the Law, supra note 5, at 1 589; Tahirih V. Lee, Court-Appointed

Experts and Judicial Reluctance: A Proposal to Amend Rule 706 ofthe Federal Rules ofEvidence,

6 YALE L. & POL'Y Rev. 480, 484-85 (1988); Beverly W. Lubit, Note, The Time Has Come for
Doing Science: A Callfor the Rigorous Application o/Daubert Standardsfor the Admissibility of

Expert Evidence in the Impending Silicone Breast Implant Litigation, 42 N.Y.L. SCH. L. REV. 1 47



234 INDIANA LAW REVIEW [Vol. 32:225

Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.?2

making the judge a gatekeeper for expert testimony, provides additional fodder

for advocates.
83

Partisan experts, commentators argue, often fail to clarify issues for the jury

because the expert may tailor testimony to meet the needs of the client rather than
make a full disclosure.84 Adversarial experts also tend to polarize the parties'
theories of the case

85
and may create a conflict for resolution by a jury where in

actuality little conflict exists.
86

In contrast, a neutral expert is loyal to the court's

interest in finding the truth.
87 The reason is simple: Neutral experts are "less

susceptible to pressures to tailor their testimony to support a particular legal

outcome than are partisan experts whose fees are paid by parties interested in the
legal outcome."

88
Since the use of a court-appointed expert under Rule 706 is not

intended to replace party experts,
89

but merely to enhance the information

available to the trier of fact, the neutral expert may fill in gaps of knowledge
necessary for resolution of the parties' dispute.

90
Hence, advocates of court-

appointed experts encourage sacrificing some party autonomy for more accurate
results.

A second modern justification for Rule 706 court-appointed experts is
encouraging the parties to settle before trial.

91 A court-appointed expert working
with the parties and their corresponding experts before trial, may clarify issues
on which the party experts agree and disagree.

92
This reduces polarization

93
and

forces the lawyers to re-evaluate continually their positions.
94

If the court-

appointed expert clarifies issues for the parties, allowing them to resolve the case

without a trial, the parties save money and the federal case load is reduced. If the

(1998).

82. 509 U.S. 579, 597 (1993) (discussing the gatekeeping role of the judge in allowing

expert testimony).

83. See Black et al., supra note 8, at 793-94; Cecil & Willging, supra note 8, at 995-96;
Lubit, supra note 81, at 147.

84. See Gross, supra note 70, at 1 188; Developments in the Law, supra note 5, at 1 589-91

.

85. See Gross, supra note 70, at 1181.

86. See id. at 1184.

87. See Langbein, supra note 70, at 847; Lee, supra note 81, at 492-93.

88. Lee, supra note 81, at 493. See also Gross, supra note 70, at 1 188 (commenting: "If

witnesses are chosen and compensated by the court, and responsible to it, these pitfalls are

avoided.").

89. See Fed. R. EviD. 706(d).

90. See Lee, supra note 8 1 , at 493.

91. See Cecil & Willging Study, supra note 1 , at 1 5; Weinstein's Evidence, supra note
53, at 706-09.

92. See CECIL & WILLGING STUDY, supra note 1 , at 1 6.
93. See supra note 86 and accompanying text.

94. See CECIL & Willging STUDY, supra note 1 , at 16. See also Langbein, supra note 70,
at 832-38 (discussing the fact-finding process in the German system that encourages settlement

through the use of expert witnesses).



1 998] COURT-APPOINTED EXPERT PANELS 23 5

court-appointed expert simply narrows issues for trial, the trial process itself

becomes more efficient. The growing federal case load adds weight to this
argument since slim judicial resources force federal courts to look for ways to
increase efficiency.

95

Advocates of Rule 706 argue that court-appointed experts could assist the

judge in determining the reliability and fit of an expert's testimony in his

gatekeeping role under Federal Rule of Evidence 702 ("Rule 702").
96

In

Daubert
91

the Supreme Court articulated the requirement under Rule 702 of "a
preliminary assessment of whether the reasoning or methodology underlying the

testimony [of an expert witness] is scientifically valid and of whether that

reasoning or methodology properly can be applied to the facts in issue.
,m

This

"gatekeeping role"
99
of the judge puts him in the difficult position of having to

assess the scientific validity of a scientist's assumptions, methodology, and data.

Without the necessary scientific skills, a judge thrust into this role may need an
appointed expert to help him make sound decisions on admissibility. 100

B. Opposition to Court-Appointed Experts

If court-appointed experts were a panacea, judges would likely use the Rule
706 process more often, particularly in toxic tort and product liability cases. This
is far from reality. Of 431 federal district judges polled for a 1993 study, only
twenty percent had appointed an expert under Rule 706;

101
only ten percent had

used the process more than once. 102 Some of the reasons cited for the rare
appointment of Rule 706 experts include the infrequency of the need for

95. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 317-18(1 985).

See generally THOMAS E. BAKER, RATIONING JUSTICE ON APPEAL: THE PROBLEMS OF THE U.S.

Courts of Appeals (1994).

96. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Federal Rule of
Evidence 702 provides for the use of expert testimony if it "will assist the trier of fact to understand

the evidence or to determine a fact in issue." FED. R. Evid. 702. See also Black et al., supra note

8, at 790-96; CECIL & WILLGING STUDY, supra note 1, at 12; Margaret G. Farrell, Daubert v.
Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process, 1 5 Cardozo L. Rev. 2 1 83,
2202(1994).

97. 509 U.S. 579(1993).

98. Id. at 592-93.

99. Id. at 597.

100. See Cecil & Willging, supra note 8, at 995-96 (noting the Supreme Court itself
recognized the possibility judges would need experts to assist them in their gatekeeping capacity);

see also Black et al., supra note 8, at 790-96 (expressing faith in judges to make correct

admissibility decisions with help from court-appointed advisors, experts or special masters); Lubit,

supra note 81, at 148-50 (suggesting judges employ more court-appointed experts to

"independently evaluate" scientific evidence).

101. See Cecil & Willging Study, supra note 1 , at 7.
102. See id. at 8.



236 INDIANA LAW REVIEW [Vol. 32:225

appointed experts,
103

particularly in light ofjudicial respect for the adversarial

system,
104

and the failure to recognize the need for such an expert until the eve

of trial when delay is costly. 105

Scholars offer additional reasons for caution in using appointed experts under

Rule 706. One argues "by designating [an expert] witness as court-appointed and
'impartial' the court has in effect cloaked him with a robe of infallibility."106 The
concern is undue persuasion. A designation of impartiality may elevate the
appointed expert's status, persuading the jury to the expert's viewpoint regardless

of the validity of the parties' position on the same issue. Opponents of appointed

experts argue that the opportunity to cross-examine the appointed witness cannot

safeguard against a jury's perception that the court-appointed expert is

infallible.
107

Closely related to this concern is the additional weight a jury may give to the
court-appointed expert's testimony. When the court announces the expert is
"neutral" a jury likely will believe that opinion. The problem is twofold. First,

a "neutral" expert may not always be right.108 Second, a "neutral" expert may be
biased by the school of thought under which he trained.

109
If a jury follows the

"neutral" opinion, the court-appointed expert has interfered with the deliberative

process of the jury.
110

Data regarding the impact of a court-appointed expert on a jury is mixed.

Little empirical data exists on the subject,
111

and what little there is points to a

finding that jurors do not accord nonadversarial experts more weight.
112 The

actual experience of federal judges, however, indicates real juries do seem to

follow court-appointed expert opinions. For example, in a study of court-

appointed experts in a series of asbestos litigation, the court-appointed expert

witnesses had a noticeable effect on jury outcomes.
113 A court-appointed expert

testified in each of sixteen asbestos injury cases tried in the Southern District of

103. See id. at 18.

104. See id. at 20.

105. See id. at 22.

106. Elwood S. Levy, Impartial Medical Testimony—Revisited, 34 TEMP. L.Q. 416, 424
(1961). See also Carl B. Rubin & Laura Ringenbach, The Use of Court Experts in Asbestos
Litigation, 137 F.R.D. 35, 41 (1991), discussed infra notes 1 14-20.

107. See Levy, supra note 106, at 427.

108. See id. at 420.

1 09. See id. at 42 1 ; Relkin, supra note 72, at 2257.

1 1 0. See Levy, supra note 106, at 424; Relkin, supra note 72, at 2257; see also Kian v. Mirro

Aluminum Co., 88 F.R.D. 351, 356 (E.D. Mich. 1980). But see Gross, supra note 70, at 1 194,

1 197 (arguing neutrality of the court-appointed expert should influence the jury).

111. See Black et al., supra note 8, at 787 n.456; Gross, supra note 70, at 1 1 83 n.2 1 5.

1 12. See Nancy J. Brekke et al., OfJuries and Court-Appointed Experts: The Impact of
Nonadversarial versus Adversarial Expert Testimony, 1 5 LAW & HUM. BEHAV. 45 1 , 45 1 ( 1 991

)

(reporting that "jurors did not accord more weight to nonadversarial expert testimony").

113. See Rubin & Ringenbach, supra note 1 06, at 4 1

.



1 998] COURT-APPOINTED EXPERT PANELS 23 7

Ohio.
114

Since some of the experts needed to testify by videotaped depositions,
practicality forced the judge to advise the jury of an expert's court appointment

in each of the trials.
115

Juries hearing the cases received instructions to "not

attach any significance to that fact in considering [the appointed expert's]

testimony."
1 ,6

In cases involving asbestosis, "the jury decided with the [cjourt's

expert in thirteen out of sixteen cases."
117

In case involving pleural plaque, "the

juries decided with the [c]ourt's expert in twelve out of sixteen cases."
118 The

judge in the cases, Judge Carl B. Rubin, and his assistant, Special Master Laura

Ringenbach, concluded: "A court's expert will be a persuasive witness and will
have a significant effect upon a jury."

119
Other judges polled about similar

experiences agree with this conclusion.
120

Litigants on both sides of the table dislike Rule 706 court-appointed experts

because the process interferes with party autonomy.
121

In essence, lawyers argue

against court-appointed experts because lawyers lose the ability to control

development of expert witness testimony because coaching of the court-

appointed expert is not allowed.
122

Discomfort with court-managed expert

testimony under Rule 706 is not surprising, however, given the liberal procedural

rules that govern most aspects of federal litigation. Some commentators suggest
the greater managerial role of the federal judge in settlement proceedings and

other pre-trial processes in recent years may encourage the use of court-appointed
experts.

123
However, this trend only would reduce party autonomy further.

For litigants, another disadvantage of court-appointed experts is higher

litigation costs. The parties pay for a court-appointed expert's time
124

and must
make additional preparations125 to accommodate the extra witness. More experts

1 14. See id. at 39. The original number of plaintiffs was sixty-five; however, forty-two "were

found to be free of any condition giving rise to a cause of action." Id.

115. See id. at 40.

116. Id. at 46.

117. Id. at 41.

118. Id. "[T]here is overlap in the foregoing [cases] since only sixteen cases in toto [were]

involved but [with] two questions [in] each." Id.

119. Id.

120. See CECIL & WiLLGlNG STUDY, supra note 1 , at 52-56.
121

.

See WiLLGlNG, supra note 18, at 22-23; see also Gross, supra note 70, at 1 193.

122. See Gross, supra note 70, at 1200.

1 23. See Landsman, supra note 19, at 1 54-55; Langbein, supra note 70, at 858-66 (theorizing

the continued rise in managerial aspects of a federal judge's role will increase the use of court-

appointed experts; however, safeguards against abuse ofjudicial power must develop concurrently).

124. See Fed. R. Evid. 706(b) (providing for compensation of court-appointed experts).

125. Extra preparation could include researching the background of the court-appointed

expert to prepare cross-examination, deposing the court-appointed expert, or further physical or

psychological examination of a party. See Relkin, supra note 72, at 2266-267 (identifying

additional physical examinations of a party as one extra cost in product liability cases where the

health of a party or causation is at issue). See generally CECIL & WiLLGlNG STUDY, supra note 1,
at 57-65.



238 INDIANA LAW REVIEW [Vol. 32:225

at trial increases court costs as well. Thus, any use of court-appointed experts

adds to an individual party's costs.

Finally, judges sometimes forego the Rule 706 appointment process because

identifying an expert with appropriate qualifications and neutrality is difficult

and time consuming.
126

Although no systematic method for procuring names of
potentially suitable experts exists, several options have been proposed including

centralized expert resource centers,
127

government agency expert review

panels,
128

and professional association referrals.
129

Scientists themselves

encourage the participation of professional associations in providing neutral

experts.
130

Given that some scientists dislike the litigation process because some
lawyers encourage venality,

131
and that the Federal Judicial Center encourages

judges to utilize professional associations to help find neutral experts,
132

interaction through associations is likely to develop first. Any formalized
collaborative effort likely will develop slowly.

III. Court-Appointed Expert Panels

A single court-appointed expert witness may have minimal negative effect
on the outcome of an individual case.

133
However, in toxic tort and some product

liability cases, finding a single expert who could address every scientific issue
in the case is a daunting (if not impossible) task.

134 The complexity of cases such

as toxic torts, and concern over venal experts and "junk science" experts offered

by some parties,
135

led scholars to conclude that court-appointed expert panels

under Federal Rule of Evidence 706 offer viable solutions. Suggestions to use

court-appointed expert panels sometimes include overhauls of the judicial

1 26. See CECIL & WlLLGlNG STUDY, supra note 1 , at 2 1 -22.
1 27. see carnegie comm'n on science, tech., and gov't, science and technology in

Judicial Decision Making: Creating Opportunities and Meeting Challenges 17 (1993)

[hereinafter Carnegie Comm'n Report],

128. See Lawrence S. Pinsky, Comment, The Use ofScientific Peer Review and Colloquia

to Assist Judges in the Admissibility Gatekeeping Mandated by Daubert, 34 HOUS. L. Rev. 527, 529

(1997).

129. See Gross, supra note 70, at 1214-15.

1 30. See, e.g., Marcia Angell, M.D., Science on Trial: The Clash of Medical Evidence

and the Law in the Breast Implant Case 205-07 ( 1 996); James T. Rosenbaum, Lessons From

Litigation Over Silicone Breast Implants: A Callfor Activism By Scientists, 276 SCI. 1524 (1997).

131. See Gross, supra note 70, at 1115.

132. See MANUAL FOR COMPLEX LITIGATION SECOND § 21.51 (1985).
133. See supra notes 1 1 1-20 and accompanying text.

1 34. See MARGARET A. BERGER, PROCEDURAL AND EVIDENTIARY MECHANISMS FOR DEALING

with Experts in Toxic Tort Litigation: A Critique and Proposal 40-41 (Carnegie
Commission on Science, Technology, and Government 1991). See generally Cecil & WlLLGlNG
Study, supra note 1, at 31-34.

135. See, e.g., ANGELL, supra note 130, at 207; Gross, supra note 70, at 1220.



1 998] COURT-APPOINTED EXPERT PANELS 239

system
136

or eradication ofthe jury altogether in complex cases.
137 Some scholars

argue that changing the system in which the expert panels operate effectively
eliminates the conflicts a court-appointed panel would have with the adversarial
system and the jury process. Thus, party autonomy within the jury process is
sacrificed on the altar of scientific certainty. Such sacrifice is unnecessary.
Existing procedural rules, the integrity of the judiciary, and modern managerial
techniques can effectively utilize the knowledge ofcourt-appointed expert panels

preserving both the adversarial process and the right to a jury trial.
138 The

remainder of this Note explores briefly the use of court-appointed expert panels

as witnesses and as advisors, then compares two current expert panel models.

A. Using Court-Appointed Expert Panels

Some proponents of the increased use of Rule 706 court-appointed experts
argue that juries may not understand the complexity of scientific issues.
Proponents argue that a panel of court-appointed experts should make findings
of fact.

139 Few empirical studies address the adequacy of juries in making
decisions based on the probabilistic proof offered by many scientists in complex

136. See, e.g., Gross, supra note 70, at 1221-29 (proposing procedural changes with

incentives forjudges and lawyers to use court-appointed experts in every case); Langbein, supra

note 70, at 825 (advocating more judicial control over the fact-finding process similar to the

German approach); Pinsky, supra note 128, at 529 (suggesting a centralized panel of experts

provide colloquia review of data offered by party experts).

137. See, e.g., In re United States Fin. Sees. Litig., 609 F.2d 41 1, 429-32 (9th Cir. 1979); Ora

Fred Harris, Jr., Complex Product Design Litigation: A Needfor More Capable Fact-Finders, 79

Ky. L.J. 477, 508 (1991) (determining an expert jury is the most feasible method to eliminate the

confusion of complex product design cases while furthering efficiency and equity); William V.

Luneburg & Mark A. Nordenberg, Specially Qualified Juries and Expert Nonjury Tribunals:
Alternativesfor Coping with the Complexities ofModern Civil Litigation, 67 Va. L. Rev. 887, 950-

51 (1981) (advocating the use of an administrative body for complex civil litigation similar to other

Congressionally created agency tribunals); Developments in the Law, supra note 5, at 1605

(concluding alternative methods of dispute resolution best handle complex or scientific issues).

138. The absolute right to a jury trial in civil cases is disputed in the literature; however, this

paper assumes that in tort litigation, regardless of complexity, litigants retain the Seventh

Amendment right to a jury trial. See Ex parte Peterson, 253 U.S. 300, 309-10 (19*20) (stating the

need under the Seventh Amendment to ensure the jury function is not usurped by court-appointed

experts); Luneburg & Nordenberg, supra note 137, at 1004 (concluding after analyzing the
Supreme Court's opinion in Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n,
430 U.S. 442 (1977), that state common law claims would not fit the Atlas criteria for exclusion
from the Seventh Amendment right to a jury trial).

139. See, e.g., Harris, supra note 137, at 508 (advocating the use of an expert jury); Luneburg

& Nordenberg, supra, note 137, at 950-51 (advocating the use of an administrative body for
complex civil litigation similar to other Congressionally created agency tribunals); Pinsky, supra

note 128, at 529 (suggesting "external scientific peer review of proffered evidence" and/or using

"colloquium style preliminary hearings" to educate the judge in making admissibility decisions).



240 INDIANA LAW REVIEW [Vol. 32:225

toxic tort cases.
140

However, results of some cases and studies support the
increased use of appointed expert panels to render scientifically oriented fact

determinations.
141

In the adversarial system, the best use of expert panels would

not replace the jury. An expert panel is best used to assist the judge in evaluating
the foundation of scientific testimony. Such an idea is not far-fetched,

particularly in light of recent applications of expert panels in the silicone breast

implant cases.
142 The key to any use of court-appointed expert panels is the

proper balance ofjustice, fairness, efficiency and adherence to the traditional

values of the adversarial system.

1. Court-Appointed Panels at Trial.—Introducing a Rule 706 expert panel
to testify at trial

143 may cause excessive interference with the adversarial system.
Concern stems from two difficulties: parties usually control presentation of

evidence to the jury,
144

and juries usually deliberate evidence not weighted by a

court-appointed panel of experts.
145

Procedural issues of how to present the panel experts' testimony perhaps
loom largest. First, Rule 706 suggests either the court or one of the parties may
call an appointed witness to testify.

146
If the panel expert's testimony is favorable

to a particular party, it makes sense for that party to call the expert witness,

allowing the other party to cross-examine. The panel testimony then integrates

into a party's presentation of evidence. That party's position is weighted not

140. See Black et al., supra note 8, at 787 n.456; Gross, supra note 70, at 1 1 83 n.2 1 5.

141. Professor Samuel R. Gross provides a clear example of a court reaching a non-scientific

resolution in a case based on partisan expert testimony. Tried to a judge, the court found a

spermicide caused birth defects without scientifically credible evidence. Gross, supra note 70, at

1 121-24 (discussing Wells v. Ortho Pharmaceutical Corp., 615 F. Supp. 262 (N.D. Ga. 1985), affd

as to liability, modified as to damages 788 F.2d 741 (1 1th Cir. 1986)). Professor Gross asserts

juries likely would be no better than judges in similar circumstances. Id. at 1 180. See also Jane

Goodman, Jurors' Comprehension and Assessment ofProbabilistic Evidence, 16 AM. J. TRIAL

ADVOC. 361, 375 (1992) (concluding jurors "failed to make adequately refined distinctions

between probabilities" in a mock study ofjury reaction to probabilistic evidence).

142. See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Or. 1996); Order 31, supra

note 20, atF-1.

143. Rule 706 itself suggests experts appointed with this authority will testify at trial stating,

"the witness may be called to testify by the court or any party." Fed. R. Evm 706(a). Some courts
use Rule 706 to appoint experts even if the experts will not testify at trial. See Willging, supra

note 1 8, at 1 8-23 (describing the various uses for court-appointed experts).

1 44. See Gross, supra note 70, at 1 193 (discussing main arguments against court-appointed

experts); see also Langbein, supra note 70, at 840-42 (discussing the use of court-appointed experts

in the American system and the adversarial approach to presenting testimony); Longan, supra note

15, at 300-01 (suggesting the key elements of the adversarial process are party autonomy and

impartial juries).

145. See Relkin, supra note 72, at 2257.

146. Fed. R. Evid. 706(a).



1 998] COURT-APPOINTED EXPERT PANELS 24

1

only by the testimony of its own experts147 but by the court-appointed panel as
well. A party faced with such opposition may feel compelled to even the score
by providing additional experts. Thus, this scenario encourages proliferation of
marginally useful testimony and works against the purpose of Rule 706 to control
venal experts.

When neither party wants to call the panel experts and the court must, timing
ofthe testimony becomes an issue. When in the trial process is presentation of
the panel testimony least prejudicial? One commentator suggests the most
neutral timing is between presentation of the two parties' cases.

148
Whatever

timing the judge selects is likely to influence the jury in some manner because
of a fact inherent to a panel of experts—there is more than one expert. Both
parties will attempt to discredit the appointed experts' testimony. As a result, a
jury will likely conclude something is different about that set of witnesses. The
panel testimony in such a situation may unduly influence the deliberations of the
jury

149
regardless of the judge's decision to divulge the panel's court-appointed

status.
150

In addition, assuming the court has each panel expert testify separately, too
many experts testifying at trial may confuse the jury. Statistical data or
probabilistic proof of complex concepts is difficult for juries to handle.

151 More
information from additional experts may compound confusion. Some data
suggest jurors exhibit a propensity to not listen well with one court-appointed
expert.

152
The likelihood of jurors tuning out testimony of successive court-

appointed panel members seems high. Neither litigants nor the judge want a
confused jury, ignoring all of the relevant scientific testimony because too much
is presented.

153

147. Rule 706 states, "Nothing in this rule limits the parties in calling expert witnesses of

their own selection." Fed. R. Evid. 706(d). Expert witness testimony is limited by other rules of

evidence including Rules 702, 703, 705, 401, 402, and 403. See generally FED. R. Evid.

1 48. WILLGING, supra note 1 8, at 1 2.

149. See Longan, supra note 15, at 300-01 (discussing the importance of an impartial

decision-maker on the appearance of fairness in judicial administration). See also Rubin &
Ringenbach, supra note 106, at 41.

1 50. Scholars disagree over the propriety of divulging the court-appointed status of any

expert. Compare Brekke et al., supra note 1 12, at 470 (advising against informing juries of experts'

court-appointed status) with Gross, supra note 70, at 1194, 1197 (implying an' expert's court-

appointed status should be divulged in order to increase his influence with the jury).

151. See Goodman, supra note 141, at 375; Harris, supra note 137, at 491 (suggesting that

juries are unable to comprehend technology involved with products liability design defects).

152. Brekke et al., supra note 1 12, at 470. Brekke's mock jury study reports, "recognition

recall of the expert testimony was significantly higher in adversarial conditions than in

nonadversarial conditions." Id. Therefore, even if court-appointed experts present more impartial

and accurate testimony than party experts, the jury may not notice because they seemingly pay less

attention to the court-appointed experts. Id.

153. The appellate process may be a safeguard for confusion because of too much expert

testimony. In one case, the appellate court held a trial court did not abuse its discretion to appoint



242 INDIANA LAW REVIEW [Vol. 32:225

Improving the integrity of scientific evidence presented in complex toxic tort

cases is important. Party autonomy and impartial fact finding likely will suffer
if court-appointed panels present findings in addition to party testimony. An
expert panel appointed by the judge for pretrial hearings is likely a better solution

to problems of questionable science and venal experts within the adversarial

system.

2. Court-Appointed Panels Before Trial.—No doubt concerns expressed by
commentators, judges, and rulemakers about expert venality and experts offering

"junk science" is justified.
154

These arguments reflect skepticism about a jury's

ability to wade through the "junk" and glean the truth. 155 In cases such as toxic
torts, it makes sense to use a pretrial process that ensures the efficacy of
scientific testimony and minimizes the "junk." Courts can achieve a high level

of efficacy using expert panels in conjunction with the judge's Daubert
]56

gatekeeping role. In fact, many commentators recognize the value of court-
appointed experts in the Daubert process.

157
Few, however, recommend that a

judge utilize his inherent authority to appoint an advisory panel.
158

A court reduces the opportunity for "junk science" to invade the courtroom
by undertaking a panel inquiry at an early juncture,

159
respecting party autonomy

in the process. Judge Robert E. Jones in Oregon effectively utilized a process

similar to the one briefly described here.
160

First, the judge called for a pretrial

admissibility hearing as part of his managerial role under Federal Rule of Civil

an expert under Rule 706 when "additional experts would . . . add more divergence and opinion

differences." Georgia-Pacific Corp. v. United States, 640 F.2d 328, 334 (Ct. CI. 1980).

154. If this were not the case, no one would write about it and Rule 706 would not exist.

Venality is a concern because it tends to polarize parties, increase costs and adversely effect jury

decision-making. See Gross, supra note 70, at 1 129-36; Lee, supra note 81, at 482-83. "Junk

science" is of concern in toxic torts because of issues related to causation which can involve

complex scientific data sets. See Eggen, supra note 9, at 893.

155. See, e.g., Developments in the Law, supra note 5, at 1586-87 (arguing partisan expert

testimony on complex and scientific issues makes fact finding extremely difficult); Harris, supra

note 137, at 491 (arguing some complex cases fall outside a lay person's understanding which

effects his or her ability to sort out complex facts from partisan experts). Some commentators

blame lawyers for this phenomenon. Elliott, supra note 70, at 492-93; Gross, supra note 70, at

1129-30.

156. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)
1 57. See, e.g., Black et al., supra note 8, at 793-96; Cecil & Willging, supra note 8, at 995-

97; Gross, supra note 70, at 1 187-88; Lee, supra note 81, at 480; Lubit, supra note 81, at 147.

158. See Black et al., supra note 8, at 796. One commentator suggests the differences

between appointed experts under the inherent authority and under Rule 706 differ only in the

function they serve. WILLGING, supra note 1 8, at 22.

159. Federal Rule of Evidence 706 was implemented partly to evade "junk science." Fed.

R. EviD. 706 advisory committee's note. See also supra note 74 and accompanying text.

160. Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1392-94 (D. Or. 1996).



1 998] COURT-APPOINTED EXPERT PANELS 243

Procedure 16.
161

Using the court's inherent power, the judge appointed an expert

panel.
162 The parties' experts presented testimony, in a direct and cross-

examination format for the panel and the judge.
163

Panel experts submitted

findings on specific questions posed by the judge, and parties challenged the

panel experts' findings.
164

Next, applying the standard of Rule 702
165

and the

corresponding Supreme Court guidelines in Daubert
166

(including Federal Rule

of Evidence 104(a)),
167

the judge ruled on whether the underlying methodology

of a particular party expert was admissible, unreliable, invalid, or irrelevant. 168

In a process like the one Judge Jones employed, if proffered expert testimony

is determined admissible, the judge has ensured the evidence will assist the jurors

in making factual determinations.
169

Most importantly, the parties retain control
over presenting the evidence to a jury. Neither the jury's knowledge of the
panel's existence nor the possibility of the panel being outcome determinative
become an issue at trial. Thus, two elements that help maintain the integrity of
the adversarial process remain intact: Party autonomy and impartial decision-
makers.

170

Some commentators suggest using a panel procedure similar to the one
discussed here.

171
However, they advocate using a centralized clearinghouse and

161. This rule sets out lists of subjects for consideration during pretrial conferences. Fed. R.

Civ. P. 16(c). These include disposition of pending motions, the need for adopting special

procedures for handling complex issues, and any other matters effectuating a just, speedy and

inexpensive disposition ofthe action. Id. Ajudge might order an admissibility hearing under any
of these provisions, or upon motion in limine by one of the parties. See, e.g., Hall, 947 F. Supp.

at 1391. See also Fed. R. Civ. P. 26(a)(2) (providing for disclosure of the identity and potential

content of expert witnesses' testimony to the other parties with management by the court).

162. Hall, 947 F. Supp. at 1392. See also Scott v. Spanjer Bros., Inc., 298 F.2d 928, 930 (2d

Cir. 1962) (using a similar process).

163. Hall, 947 F. Supp. at 1392-93.

164. Id. at 1393-94.

165. Federal Rule of Evidence 702 states: "If scientific, technical, or other specialized

knowledge will assist the trier offact to understand the evidence or to determine afact in issue,

a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise." FED. R. Evid. 702 (emphasis added).

1 66. In Daubert, the Court set out a two step analysis for admissibility of scientific evidence

under Rule 702. "[T]he reasoning or methodology underlying the testimony [must be] scientifically

valid and . . . [the] reasoning or methodology [must] be applicable] to the facts in issue." Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993).
167. Federal Rule of Evidence 104(a) provides for the trial judge to make preliminary

findings concerning the admissibility of evidence, without being bound by the Rules of Evidence

in making the ruling. FED. R. EviD. 104(a).

168. Daubert, 509 U.S. at 590-92.

169. See Fed. R. EviD. 702.

170. See Longan, supra, note 15, at 300.

171. See Carnegie Comm'N REPORT, supra note 1 27, at 1 6; Pinsky, supra note 1 28, at 5 5 3

.



244 INDIANA LAW REVIEW [Vol. 32:225

group of experts for appointment by courts.
172

This seems time-consuming and
expensive. It is certainly more costly than judges appointing panels when
necessary, with direct help from universities or scientific associations,

173
and

requiring payment by the parties.
174

Appointed expert panels in Daubert-style hearings that preserve presentation

of expert testimony by the parties at trial is the best way to ensure party
autonomy and jury integrity while efficiently resolving toxic tort disputes. Two
examples clarify this point.

B. Court-Appointed Expert Panels in Practice

In litigation over silicone gel breast implants, the issue of whether silicone

causes systemic disease has prompted much debate.175 Systemic disease
causation is debated partly because existing epidemiologic data show no link to
silicone, while plaintiffs' experts argue a new disease is occurring which current
epidemiologic studies fail to consider.

176
This presents a classic example of

science and the law as uneasy partners. Science in the breast implant cases may
be underdeveloped,

177
yet litigants expect an efficient resolution of their legal

1 72. See Carnegie COMM'N REPORT, supra note 1 27, at 1 7- 1 8 (recommending the creation

of federal and state resource centers, scientific community resource centers, a judicial scientific and

technology clearinghouse, and a non-governmental/non-judiciary Science and Justice Council for

studying and exploring solutions to the science/law interface issues); Pinsky, supra note 128, at

563-64 (suggesting a central group to receive requests from judges and facilitate distribution of

questionnaires and assignments to scientists in various government agencies to act as court-

appointed experts; government funding of research projects would hinge on cooperation of the

individual scientists in the program).

173. See Rosenbaum, supra note 130, at 1524 (listing the National Institute of Health,

universities, the American Association for the Advancement of Science and the National Academy

of Sciences as existing resources for providing scientific guidance). But see Pinsky, supra note

128, at 545-48 (discussing the various scientific groups willing to help judges appoint experts and

ultimately rejecting them in favor of centralizing the program in a more structured fashion).

174. Payment by the parties is suggested in Rule 706. FED. R. Evid. 706(b).

1 75. Compare Marcia Angell, Do Breast Implants Cause Systemic Disease? Science in the

Courtroom, 330 NEW ENG. J. MED. 1748 (1994) (arguing rational epidemiological studies show no
connection between silicone and connective-tissue disease), with Gary Solomon et al., Breast

Implants and Connective-Tissue Diseases, 331 NEW ENG. J. Med. 1231 (1994) (arguing existing
epidemiological studies fail to account for the new type of connective-tissue disorder caused by

silicone).

176. See Lubit, supra note 81, at 151-54 (discussing the early evidence that silicone may

cause connective-tissue disorder); Jack W. Snyder, Silicone Breast Implants: Can Emerging

Medical, Legal, and Scientific Concepts Be Reconciled?, 18 J. LEGAL Med. 133, 137-138 (1997)

(discussing, generally, the alleged risks associated with silicone).

1 77. See In re Breast Implant Cases, 942 F. Supp. 958, 961 (E. and S.D.N. Y. 1 996). Judges

in this case suggest summary judgment on causation of systemic disease is improper at this time

"since scientists are still developing relevant information." Id.



1 998] COURT-APPOINTED EXPERT PANELS 245

dispute.
178 Two judges have confronted this dichotomy by appointing a panel of

experts.
179 One judge chose to use court-appointed experts under Rule 706. 180

The other judge exercised his inherent authority to appoint a panel of

independent advisors to assist him in ruling on the admission of expert evidence

offered by the plaintiff.
181

Although the circumstances of the cases differ

slightly,
182

the use of expert panels on the same issue highlights the advantages

and disadvantages of court-appointed experts.

1. National Panel Model.—Toxic tort litigation differs from traditional
product liability in substantial ways. Usually there is a combination of the

following factors: a large number of exposed plaintiffs;
183

a "long latency period

between time of exposure and manifestation of the disease;"
184

a disease which

"mimic[s] diseases found in background levels in the general population;"
185

and

scientific uncertainty ofthe effects of toxic exposure on people.
186

Litigation of

this complexity, for a single toxic substance and in multiple federal districts, may
lead to consolidation of pretrial proceedings.

187 Employment of 28 U.S.C. §
1407

188
allows for centralization of the pretrial phase of civil actions under a

single judge
189

for convenience and efficiency reasons.
190

This judicial

management technique is called "multidistrict" litigation.
191

A panel ofjudges from various districts administer the multidistrict litigation

178. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
179. See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (D. Or. 1996) (using an

appointed panel of experts under the court's inherent authority to assist the judge in making

admissibility determinations of expert evidence under Rule 702); Order 31, supra note 20, at F-l

(forming a national panel of experts to evaluate plaintiffs evidence on the causal relationship

between silicone and systemic disease).

1 80. Chief Judge Sam C. Pointer, Jr. of the Northern District of Alabama. Order 3 1 , supra

note 20, at F-l.

181. Judge Robert E. Jones, District Judge in Oregon. Hall, 947 F. Supp at 1392.

1 82. Judge Pointer is the transferee judge for silicone breast implant litigation under an order

from the Judicial Panel on Multidistrict Litigation. In re Silicone Gel Breast Implants Prods. Liab.

Litig., MDL No. 926, 793 F. Supp. 1098, 1 101 (J.P.M.L. 1992). Judge Jones was assigned his
breast implant case on remand from Judge Pointer. Hall, 947 F. Supp. at 1392.

183. See Deborah R. Hensler & Mark A. Peterson, Understanding Mass Personal Injury
Litigation: A Socio-Legal Analysis, 59 BROOK. L. Rev. 961, 965 (1993).

1 84. Eggen, supra note 9, at 890.

185. Id.

1 86. See id. at 896; see also Ann Taylor, Comment, Public Health Funds: The Next Step in

the Evolution of Tort Law, 21 B.C. ENVTL. AFF. L. Rev. 753, 758 (1994).

187. See 15 Charles Alan Wright et al., Federal Practice and Procedure:

Jurisdiction and Related Matters § 3861, at 499-500 (2d ed. 1986).

188. 28 U.S.C. § 1407(1994).

189. Id.

190. See 15 WRIGHTET al., supra note 187, § 3861, at 499-500.

191. Id. at 499.



246 INDIANA LAW REVIEW [Vol. 32:225

process.
192 The panel "determinefs] whether transfer is appropriate in a

particular case and what district should be denominated the transferee forum." 193

Criteria for pretrial consolidation include: the existence of one or more common
questions of fact; the convenience of consolidated proceedings for the parties and

witnesses; and the promotion ofjust and efficient conduct.
194

Authority of the

transferee judge under § 1407 is limited to proceedings before trial.
195

This puts

all discovery motions, motions to amend pleadings, motions to dismiss for lack
ofjurisdiction or lack ofvenue, motions to proceed as a class action, and motions

for summary judgment occurring during the coordinated pretrial proceedings
within the transferee court's power.

196 Upon consent of the parties or by
stipulation, the transferee judge may retain a case or cases for trial. 197 In the
circumstances of the silicone gel breast implant cases, the Judicial Panel for

Multidistrict Litigation ("JPML") received overwhelming support for
consolidation and appointed Chief Judge Sam C. Pointer of the Northern District
of Alabama to handle the pretrial proceedings. 198 Judge Pointer is handling
pretrial proceedings for over 21,000 cases from 92 federal districts in the

consolidated proceedings.
199

In May 1996,200 upon request by the National Plaintiffs Steering Committee
ofthe Silicone Gel Breast Implant Products Liability Litigation

201
("Consolidated

192. See id. at 500.

193. Id.

194. See 28 U.S.C. § 1407(a) (1994). The remainder of the statute sets out procedural aspects

of the consolidation process and sets limitations on the authority of the Judicial Panel for

Multidistrict Litigation ("JPML"). Id. § 1407(b)-(h).

1 95. See 1 5 WRIGHT ET AL., supra note 1 87, § 3866, at 606.

196. Id. at 606-18. Arguably, the transferee judge may rule on motions for summary

judgment when discovery is complete without remanding the cases as § 1407 suggests. See id. at

618. This makes sense from a judicial economy standpoint given the case overload in the federal

courts. See Comment, The Experience ofTransferee Courts Under the Multidistrict Litigation Act,

39 U. Chi. L. Rev. 588, 602 (1972) for more on this issue.

197. See 15 WRIGHT ET AL., supra note 187, § 3866, at 618-19.

198. In re Silicone Gel Breast Implants Prods. Liab. Litig., MDL No. 926, 793 F. Supp.
1098, 1099-1 100 (J.P.M.L. 1992). Selection of the transferee forum and judge was the most

contentious issue of the transfer process and the JPML decided against using any forum suggested

by the parties to preserve the perception of fair and just proceedings. Id. at 1 100-01 . The JPML

selected Judge Pointer because of his experience with multidistrict litigation as a past member of

the Panel, his participation as a transferee judge in prior litigation, and his familiarity with

procedural rules, /t/. at 1101.

199. Order 31, supra note 20, at F-l n.2. On May 30, 1996, when Judge Pointer issued the

order, over 300 cases had already been remanded for trial to 45 district courts. Id.

200. A subsequent order issued in October 1996 further delineated the task for the expert
panel. See In re Silicone Gel Breast Implant Prods. Liab. Litig., Order 31E (N.D. Ala. 1996), 5

Mealey's Litig. Rep.: Breast Implants, Nov. 7, 1996, at C-l [hereinafter Order 3 1 E).

201. The litigation referred to here and throughout this section is the action transferred to

Judge Pointer by the JPML in In re Silicone Gel Breast Implants Prods. Liab. Litig., MDL No. 926,



1 998] COURT-APPOINTED EXPERT PANELS 247

Implant Litigation"), Judge Pointer issued an order calling for the development

of a National Science Panel ("National Panel") under Rule 706.
202

National

Panel members include an expert from each of four scientific disciplines
(epidemiology, immunology, rheumatology, and toxicology^

03
and a panel

chairman with expertise in "the interrelationship between forensic sciences and

legal procedures and processes."
204

The panel's primary function is the

assessment of "[t]o what extent, if any—and with what limitations and
caveats—do existing studies, research and reported observations provide a
reliable and reasonable scientific basis for one to conclude that silicone-gel

breast implants cause or exacerbate"
205

certain diseases. Diseases for study

include "'classic' connective tissue diseases, . . . 'atypical' presentations of

connective tissue diseases or symptoms[, and] immune system dysfunctions."206

Each panel member must also assess to what extent opinions contrary to his own
"would likely be viewed by others in the field as representing legitimate and

responsible disagreement within [his] profession."
207

Judge Pointer gave the

experts control over whether to decline review of certain research because of

insufficiency or ongoing studies.
208

Judge Pointer scheduled a series of hearings for plaintiffs' and defense's

experts to present findings on the causation issue.
209

Attorneys for each party

could not ask questions; however, the judge or the appointed panel experts could

interrupt presentations as necessary.
210

After reviewing the available data and

consulting with the other experts on the panel, if necessary, each court-appointed

expert will submit a written report of his findings particular to his area of

expertise.
211

Judge Pointer retained control over issuing panel member reports

793 F. Supp. 1098 (J.P.M.L. 1992).

202. Order 3 1 , supra note 20, at F- 1

.

203. Id. at ¥-4.

204. Id.

205

.

Order 3 1 E, supra note 200, at C- 1

.

206. Id.

207. Id.

208. Order 3 1 , supra note 20, at F-5.

209. See MDL Update: Pointer 's Scientific Panel to Convene, 5 No. 8 Med. LEGAL ASPECTS
Breast Implants 1, 6-7 (July 1997).

210. See id. Two presentation hearings were held in 1997: one in* July, the other in
November. 6 No. 2 Mealey's Litig. Rep.: Breast Implants 15 (Nov. 20, 1997). Id. Judge

Pointer may schedule an additional hearing. Id. However, one reporter suggests the panel will

conclude and submit findings in fall 1998. Carole K. Cones, Galileo 's Example Recalled: Sound

Science is Finally Prevailing in Silicone Breast Implant Controversy, LAS VEGAS REV.-J., Sept. 27,

1998, at ID.

211. Order 31, supra note 20, at F-4 to F-5. Further specific guidelines for "consultation

among [the experts,] procedures for the panel to present questions to the parties and/or to hear

presentations from the parties at a future point," and procedures for panelists to obtain further

information from specific report authors were decided during a conference with the experts and the

parties. Order 3 IE, supra note 200, at C-l

.



248 INDIANA LAW REVIEW [Vol. 32:225

to the parties by requesting that preliminary findings be submitted to him directly

for determination of whether an expert's findings "have sufficient probative

value to justify"
212

a formal report for the parties.
213

Following the deposition requirements in Rule 706,
214

Judge Pointer's order

sets out opportunities for the parties to conduct "'discovery-type' non-videotaped

depositions] of [an] expert" once the expert has submitted a report.
215 The judge

suggests the parties make this process informal,216 most likely because of the
more formal aspects of Judge Pointer's plan for trial testimony. According to
Rule 706, either party may call a court-appointed expert as a witness, and both
parties may cross-examine.217 Because Judge Pointer plans to make the panel
experts' testimony available for use by any trial court on remand,

218
"trial

testimony . . . will be perpetuated by means of a videotaped deposition at which

[the c]ourt . . . will preside. It is further anticipated that [the c]ourt . . . may
conduct the initial direct examination of such expert, with the plaintiffs and

defendants then being allowed to cross-examine the expert."
219

Other than the

informal deposition by the parties for preparation discussed above,
220

this is the

only testimony each court-appointed expert will give
221

Further, any judge on

remand may edit the deposition as necessary to conform with his own ruling on
disclosure of the experts' court-appointed status to a jury.

222

Judge Pointer's order, establishing the National Panel, exhibits attention to

the consistency and efficiency goals of the multidistrict litigation process and

awareness of the party autonomy considerations of Rule 706. Consistency is

served by creating a single panel to address the complicated scientific issues

involved in systemic disease causation rather than each trial court appointing its

own panel.223 In addition, allowing for testimony ofNational Panel members by
videotape only ensures consistency in presentation of the expert's opinions in

212. Order 3 1 , supra note 20, at F-5

.

213. Id.

214. "[T]he witness' deposition may be taken by any party." FED. R. EviD. 706(a).

215. Order 3 1 , supra note 20, at F-5.

216. Id.

217. Fed. R. EviD. 706(a).

218. Order 3 1 , supra note 20, at F-6.

219. Mat F-5.
220. See supra notes 215-16 and accompanying text.

22 1

.

Order 3 1 , supra note 20, at F-6.

222. Id. Subsection (c) of Rule 706 allows the trial court to use its discretion in authorizing

disclosure of the court-appointed expert's status to the jury. FED. R. EviD. 706(c). Judge Pointer

allowed for each judge on remand to decide if the panel experts' testimony will be used in a

Daubert hearing or for trial purposes. Order 31, supra note 20, at F-6 & n.6.
223. See Order 3 1 , supra note 20, at F-l . Judge Pointer refers to the National Plaintiffs

Steering Committee's argument in favor of appointing a national panel, "in the interest of avoiding

potentially redundant or even conflicting results in potential testimony arising from multiple Rule

706 appointments by different courts, it would be preferable to have a single set of nationally-

appointed experts." Id.



1 998] COURT-APPOINTED EXPERT PANELS 249

those courts choosing to use them on remand. Even if the trial judge on remand

decides to use the National Panel member's testimony only for Daubert

hearings,
224

all judges will make rulings from the same data, thereby eliminating

any differences in rulings that may occur because of inequities of resources
between the parties.

225 The use of a single panel promotes efficiency because

each judge on remand need not appoint his own panel. The National Panel's
appointment has delayed some cases already remanded.

226
Judge Pointer,

however, left to the judge before whom the case is pending any decision to delay
trial proceedings.

227

This National Panel model also considers the procedural safeguards built into

Rule 706.
228

First, it recognizes the need for adversaries to participate in the

development of the panel's objectives and to develop each expert's testimony.

The model gives the parties an opportunity to participate in a conference

delineating the Panel members' responsibilities and charter.
229 The parties will

receive each expert's findings in writing and can informally depose the expert in

preparation for the formal videotaped testimony.
230

Cross-examination of the

expert witnesses by each of the parties will occur during the formal deposition

phase ofthe hearings.
231

Finally, the process envisioned by this model gives the

parties, and trial judges on remand, flexibility in determining the best use of the

experts' testimony
232

(if at all) for presentation at trial or in conjunction with a

Rule 702 and Rule 104(a) Daubert admissibility hearing.

The National Panel model is carefully crafted to comply with Rule 706

safeguards and other evidence safeguards.
233

However, difficulties may arise on

224. See supra note 2 1 8 and accompanying text.

225. Inequities of resources is an argument used for promoting the use of court-appointed

experts, particularly in criminal cases where one party may be indigent. See Lee, supra note 8 1

,

at 482. The Administrative Office of the United States Courts, the Federal Judicial Center, the

National Plaintiffs Steering Committee, and the national defendants will pay for the National

Science Panel. See Order 31, supra note 20, at F-6; Terence Monmaney, Scientists Take New Role

in Implants Case, L.A. TIMES, Sept. 15, 1997, at Al. Costs for the individual litigants during trial

on remand may also be reduced, since additional depositions or testimony by a Panel expert is

restricted by Judge Pointer's order. Order 31, supra note 20, at F-5.

226. Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1394-95 (delaying the effective date

of the opinion until the National Science Panel had reported).

227. See Order 3 1 , supra note 20, at F-6.

228. See supra notes 58-63 and accompanying text

229. Order 3 1 , supra note 20, at F-4; see also Fed. R. EviD. 706(a).

230. Order 31, supra note 20, at F-5.

231. Id.

232. Id. at F-6.

233. If the panel were required to reach consensus and testify as a group, the probative value

of the testimony may outweigh its unfair prejudice to the party not favored. See Fed. R. Evid. 403

("Although relevant, evidence may be excluded ifits probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.")



250 INDIANA LAW REVIEW [Vol. 32:225

remand of individual cases when judges or parties decide to use the National
Panel testimony at trial. The manner in which each expert is to give videotaped
testimony presents questions about undue weight of the testimony. Although the

advisability of telling the jury the status of court-appointed experts is disputed,
234

the method of deposition may bias jurors toward the court's experts. The initial
order infers the court will directly examine each expert during his or her
deposition,

235
and each party will then cross-examine.

236
Judges on remand may

experience difficulty in explaining the participation of another judge
237

and

lawyers who are not participants in the case.238 In fact, the status of the
individuals as part of the "National Panel" is likely to give the experts' findings

an air of omniscience, artificially weighting the findings. Some opponents of
court-appointed experts fear such an uneven result from one such expert;

239

multiple experts may compound the problem. Each remand judge may decide to
withhold the experts' status from the jury for this reason. In turn, depending on

the nature ofthe questions asked by the court at deposition and the corresponding

cross-examination, jurors may question why the panel experts' testimony seems
different. In the asbestos series of cases,

240
where a single court-appointed expert

testified by videotape, the decision to withhold the expert's status in an attempt

to keep all experts on equal footing with uniform introductions "proved

impractical."
241

The question really is whether editing of the videotaped
depositions would counter-balance the weight of the appointed panel testimony

such that the parties felt their own expert testimony would receive fair treatment.
Using the court-appointed panel findings for Daubert hearing purposes only

would alleviate this concern.
The potential for efficiency and cost savings in pretrial proceedings with a

National Panel seem relatively straightforward.
242 Some silicone breast implant

cases, however, will not proceed with this model until the National Panel

(emphasis added).

234. See supra note 151.

235. Order 31, supra note 20, at F-5.

236. Id.

237. The rules of evidence provide for questioning by the judge; however, in the case of the

depositions contemplated here, anotherjudge will do the questioning. See Fed. R. Evm 614. Also,
former testimony is admissible under Federal Rule of Evidence 804(b)(1), a hearsay exception as

long as the declarant is unavailable. FED. R. EviD. 804(a). The National Panel Model participants

will not be available to each litigant for additional questioning according to the original order.

Order 31, supra note 20, at F-5.

238. The initial order seems to contemplate a representative from each of the plaintiff and

defendant groups to question the experts. Order 31, supra note 20, at F-3.

239. See Levy, supra note 106, at 424; Relkin, supra note 72, at 2265.

240. See supra notes 113-19 and accompanying text.

24 1

.

Ruben & Ringenbach, supra note 1 06, at 40.
242. See supra notes 223-27 and accompanying text.



1 998] COURT-APPOINTED EXPERT PANELS 25

1

presents results.
243

For example, experts from both parties in In re Breast

Implant Cases
244

had presented testimony in a Daubert hearing
245

and the two

presiding judges determined plaintiff failed to make a "prima facie case'
546

on

causation of systemic disease by silicone. Instead of finding for the defendant

on summary judgment, the court states,

The national Rule 706 committee has, however, not yet reported. It is

possible that further information will in time support plaintiffs' general

systemic claims sufficiently to permit a jury trial. A grant of summary
judgement and dismissal of plaintiffs' cases now would be unfair since
scientists are still developing relevant information.

247

The court in Hall v. Baxter Healthcare, Corp.
24

* made a similar decision to
wait for the National Panel results to issue a final ruling.

249
In addition, that court

held an extensive Daubert hearing utilizing a court-appointed expert panel for

which the parties paid.
250 The judge in Hall found plaintiffs evidence on

systemic disease causation lacking, also.
251

Thus, plaintiffs in these two cases

receive a reprieve and both sides bear a burden of continuing costs because

litigation may continue.
Defendants may question the efficiency, cost effectiveness and fairness of

such a system, particularly after a Daubert hearing where both parties were

allowed to present expert testimony before a panel
252

and the judge ruled in

defendant's favor.
253

This points to an interesting question arising from the

Daubert mandate: on which side should the burden of incomplete proof lie? The

Supreme Court provided an answer in Daubert stating that "a gatekeeping role

for the judge, no matter how flexible, inevitably on occasion will prevent the jury
from learning of authentic insights and innovations."

254
Thus, the balance in a

particular case is struck in favor of resolving disputes efficiently and finally

243. See In re New York State Silicone Gel Breast Implant Liab., 656 N.Y.S.2d 97, 99 (N.Y.

Sup. Ct. 1997) (determining severance of "the plaintiffs' claims for local injuries from the plaintiffs'

claims for systemic disease" was proper and that "[t]he court should wait to hear the systemic injury

claims until the work of the federal 706 panel is completed"); In re Breast Implant Cases, 942 F.

Supp. 958, 961 (E. and S.D.N.Y. 1996); Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1394

(D. Or. 1996).

244. 942 F. Supp. at 958.

245. See id. at 959.

246. Id. at 961.

247. Id.

248. 947 F. Supp. at 1387.

249. Id. at 1394.

250. Mat 1392, 1393 & n.9.
251. Mat 1414-15.
252. See id. at 1392-93.

253. See id. at 1414.

254. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).



252 INDIANA LAW REVIEW [Vol. 32:225

rather than waiting for scientific certainty.
255 A court-appointed panel utilized

early in the litigation process, such as during an admissibility hearing, would

strike a better balance of party autonomy, efficiency and fairness.

2. Daubert Panel Model.—In contrast to Judge Pointer's appointment of an
expert panel to testify at trial, Oregon Federal Judge Robert E. Jones in Hall v.
Baxter Healthcare Corp.

256
appointed a panel of experts to assist him in making

preliminary findings in a Rule 104(a) hearing.
257

Defendants in the case made
"motions in limine to exclude testimony by plaintiffs' experts concerning any

causal link between silicone breast implants and the alleged systemic disease."
258

In order to make an effective ruling on this issue in his role as "gatekeeper,"
Judge Jones used his inherent power to appoint a panel of independent advisors,

one each in the fields of epidemiology, rheumatology, immunology/toxicology,

and polymer chemistry.
259

Thus, Judge Jones addressed a similar issue with a

similar panel, but using a different procedure.

Specifically, the Daubert Panel model has the following characteristics.

Each party submitted materials that their respective experts would rely upon
along with transcripts oftestimony the expert may have given at similar trials.260

All parties to the litigation participated fully in a Rule 104(a) hearing, where

experts on both sides gave testimony and took questions from counsel on both

sides, the court, and the expert panel members.
261 Upon completion of the

testimony, each party gave a videotaped summation for use by the judge and the

expert advisors.
262

Judge Jones developed a questionnaire for the experts with

input from the parties.
263

Each panel expert submitted a written report answering

the proffered questions and any other pertinent questions submitted by counsel

that the expert felt appropriate to educate Judge Jones.
264

Parties were then given

the opportunity to challenge each Daubert Panel expert's findings.
265

Although technically not a panel appointed under Rule 706, the Daubert

Panel model seems to incorporate some of the procedural safeguards of Rule

255. See id.; see also Black et al., supra note 8, at 750 (commenting, "the Court also seems

to acknowledge that trial judges will often exclude evidence even though exclusion might limit the

search for truth").

256. 947 F. Supp. at 1387.

257. Id. at 1391; see also Daubert, 509 U.S. at 592-93 ("Faced with a proffer of expert

scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a),

whether the reasoning or methodology underlying the [proposed expert's] testimony is scientifically

valid and . . . can be applied to the facts in issue." (footnote omitted)); Fed. R. Evid. 104(a).

258. Hall, 947 F. Supp. at 1391.

259. Id. at 1392-93.

260. Id.

261. Id.

262. /</. atl393.

263. A/, at 1393-94.

264. Id. at 1394.

265. Id.



1 998] COURT-APPOINTED EXPERT PANELS 253

706.
266

First, the parties submitted relevant documents for review by the pane?
67

and participated in developing the questionnaire presented to the expert panel

members to guide their report writing.268 In fact, experts received copies of all
pertinent written questions from the parties.

269
This appears to satisfy the

requirement of participation by the parties in advising the experts of their duties

as required by Rule 706(a).
270

Each party evidently reviewed a report by each

appointed expert because each questioned the experts about their findings in the

presence of the judge.
271

This could, in effect, suffice for a "cross-examination."

A minimal opportunity to challenge the court-appointed panel experts'
findings may prove insignificant for purposes of a Daubert hearing. The
safeguards embodied in Rule 706 exist to minimize the appointment of non-
neutral experts by a judge

272
and ensure notification of the appointment to the

parties early in the litigation.
273

Cross-examination of the court-appointed expert

panel members may bring out hidden bias.274 The panel here, however, is being
used for admissibility purposes to help the judge determine the integrity of an

expert's methodology. Disagreement by the panel members on the validity of the
methodology should alert the judge and the parties to potential bias within the

panel. In addition, the Daubert Panel model allows the parties to question the
experts' reports,

275
providing them an opportunity to raise the issue of bias for the

judge's consideration. Further, appointment of the panel comes early in the
litigation process, protecting the parties from surprise. Once the judge becomes
aware that the parties intend to offer expert testimony, her "gatekeeping"

responsibilities
276

and her managerial role as set out in the Federal Rules of Civil

Procedure,
277

require the judge to seek information pertaining to the integrity of

the expert's testimony. In addition, the parties themselves become aware of the
other party's intent to use experts during the discovery process

278
and should

have responsibility for bringing questionable expert opinions to the judge's

attention.
279

266. See supra notes 61-66 and accompanying text.

267. Hall, 947 F. Supp. at 1392-93.

268. Id. at 1393.

269. Only one question, specific to an individual plaintiff, was omitted. Id. at 1 394 & n. 1 5.
270. FED. R. Evid. 706(a).

271. Hall, 947 F. Supp. at 1 394.

272. See Scott v. Spanjer Bros., Inc., 298 F.2d 928, 932 (2d Cir. 1962) (Hincks, J., dissenting

in part).

273. See id.

274. See Gross, supra note 70, at 1 168 (discussing the purposes of cross-examination of

expert witnesses).

275. See Hall, 947 F. Supp. at 1394.

276. See Daubert v. Merrell Dow Pharm., Inc., U.S. 579, 597 (1993); see also supra note 3.
277. See Fed. R. Civ. P. 26.

278. See id.

279. This type of responsibility makes sense in light of the control given to parties over the

discovery process by the Federal Rules of Civil Procedure. Fed. R. Civ. P. 26(f)-



254 INDIANA LAW REVIEW [Vol. 32:225

Some may argue that the Daubert Panel model mimics a trial of experts to
a jury of their peers, undermining the jury process because the appointed panel's

point of view is outcome determinative.
280

However, for the purpose of
"gatekeeping" expert evidence as mandated by Daubert, the judge must make a
ruling of law—the reliability and fit of expert testimony. With the Daubert Panel
model, party autonomy and adversarial aspects of litigation such as party
presentation of evidence and cross-examination of potential witnesses remain

intact throughout the process.
281

The Daubert Panel model might actually restore
skeptics' faith in the adversarial process because it is dependent on the

presentation of the parties. The plaintiffs bar, in particular, may find their
concerns about the opinion of one court-appointed expert being outcome
determinative

282
put to rest with the Daubert Panel model. First, each expert on

the panel, in effect, acts as a check on the others. The parties also act as a check
on the potential bias of the experts since they participate in the process to a great

degree. In addition, keeping party presentation of the evidence and the

opportunity to cross-examine party experts as part of the model preserves faith
in the judicial system.

283

The Daubert Panel model has other advantages. In Rule 104(a) hearings, the

rules of evidence do not apply.
284

This enhances the interaction between the

parties' experts, the court-appointed panel, and the judge.
285

In turn, the

interaction strengthens the appearance of fairness in the Daubert ruling process
286

and allows for more education of the judge on critical areas of concern.
287

Additionally, assume the Daubert Panel findings and the subsequent ruling

in the Hall case found a sufficient foundation for the plaintiffs experts'

evidence, and the case goes to trial. The traditional autonomy of the parties in

280. See, e.g., Relkin, supra note 72, at 2257 (arguing court-appointed experts in a Daubert

setting will undermine party autonomy and the jury process because the appointed expert point of

view will be outcome determinative). However, one commentator advocates using a peer review

approach to admitting scientific evidence, citing Judge Jones' Daubert Panel with approval. See

Pinsky, supra note 128, at 553.

281

.

See supra notes 270-71 and accompanying text.

282. See Relkin, supra note 72, at 2257. Defendant's counsel express concerns also. See

Gross, supra note 70, at 1 199; see also Order 31, supra note 20, at F2 & n.3 (reporting that
defendants objected to formation of National Panel for reasons the judge found unclear).

283. See Longan, supra note 1 5, at 301

.

284. FED. R.EviD. 104(a).

285. See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1993 n.l 1 (D. Or. 1996). Judge

Jones states the relaxed Rule 104(a) standard "was remarkably effective, both in permitting the

parties to focus on presenting their evidence and in expediting the proceeding." Id.

286. See Longan, supra note 1 5, at 301

.

287. See, e.g., Lubit, supra note 81, at 148-50 (suggesting judges "empanel[] qualified and

neutral experts to independently evaluatef] scientific evidence" in a Daubert capacity); Pinsky,

supra note 128, at 571-72 (suggesting judges hold a peer review colloquia session with outside

experts to better educate themselves on the scientific issues relevant to making an expert testimony

admissibility ruling).



1998] COURT-APPOINTED EXPERT PANELS 255

presenting their cases to the jury is preserved because the parties' expert

evidence passed the Rule 702 requirement. There is less "junk science" and a

primary justification for court-appointed experts testifying at trial no longer

exists. This, perhaps, is the type of balance the Supreme Court expected from its

ruling in DauberV. a respect for the autonomy of the parties in presenting

evidence to the jury, balanced by integrity of the scientific information the jury

hears to minimize its confusion. The adversarial process is maintained with

restored trust in the judicial process because of more consistent jury verdicts.

C. Comparing Models

A major goal of our legal system is administering justice efficiently.288 Our
legal system favors the adversarial process because of its appearance of fairness

to the parties and because ofthe importance of party autonomy in our culture.
289

Our system values truth as well.
290 When the truth turns on scientific questions,

these two sets of values seem to clash.
291 The models discussed here balance

party autonomy and scientific certainty in slightly different ways.

In each model, parties participate in educating the panel members on the
scientific points of view. Parties' experts present evidence and answer questions

of the panel members in a hearing format, to clarify the foundation for their

opinions.
292

This process of educating the panel members serves to educate the

judge on the scientific issues, since he is also an active player in the process.
293

Participation by the parties encourages them to present the clearest evidence of

their case and focuses attention on the key issues in dispute. Moreover, complete

disclosure of expert testimony early in the litigation enhances the appearance of

fairness in the judicial process.

Both models also require the court-appointed experts to summarize their

findings individually, based on questions submitted by the judge. Parties

participate in developing the questions for the panel experts.
294

Panel members
may discuss or question each other under each model; however, the actual

288. See Richard A. Posner, An Economic Approach to Legal Procedure and Judicial

Administration, 2 J. LEGAL STUD. 399, 399-400 (1973).

289. See Longan, supra note 15, at 300. Longan lays out the elements of perceived fairness

as "the existence of an impartial decision maker and party autonomy with respect to'the presentation

of the case." Id. (citing Lon L. Fuller, The Forms and Limits ofAdjudication, 92 HARV. L. Rev.

353 (1978); William W. Schwarzer, The Federal Rules, the Adversary Process, and Discovery

Reform, 50 U. PITT. L. REV. 703, 706-712 (1989)).

290. See Gross, supra note 70, at 1 1 14 (outlining the types of witnesses leading to distortions

in truth).

291. Id.

292. See supra notes 209, 260-62 and accompanying text.

293. See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1393 (D. Or. 1996); and see

Order 3 IE, supra note 200, at C-l

.

294. See supra notes 21 1, 261-63 and accompanying text.



256 INDIANA LAW REVIEW [Vol. 32:225

procedure for doing so is slightly different.
295

In addition, each party questions

the panel experts about their findings.
296

At this point the models diverge. The National Panel model prepares
testimony of panel experts for use at trial. Following the procedural safeguards

of Rule 706,
297

testimony of each National Panel expert is taken at a deposition-

type hearing with the judge presiding and the parties cross-examining each

expert.
298

Videotaped depositions of the panel experts provide the trial judge

with either a basis for a pre-trial admissibility hearing or with court-appointed

expert witnesses for use at trial at the judge's discretion.
299

In contrast, the Daubert Panel model serves to educate the judge. The judge
participates fully in questioning the party experts during a Rule 1 04(a) hearing.

300

Parties cross-examine each other's experts
301

and provide summation of their
arguments for review by the panel experts.

302
Neither party cross-examines the

court-appointed experts.
303

Each may, however, challenge the written findings
of the experts in the presence of the judge.

304

The most fundamental difference between the two models is whether the
parties are given the opportunity to cross-examine the court-appointed experts.

In the National Panel model, the parties cross-examine the court-appointed

experts.
305

In the Daubert Panel model, the parties challenge the expert findings

in the presence of the judge.
306

Cross-examination is a tool for gleaning

additional facts,
307

attacking credibility,
308

safeguarding reliability,
309

and

achieving fairness.
310

Similarly, a party's control over the presentation of its case

is a fundamental element of the adversarial system.
311

In the National Panel model, cross-examination of the court-appointed panel

295. Compare Hall, 947 F. Supp. at 1393, with Order 3 IE, supra note 200, at C-2.

296. See supra notes 2 1 5- 1 7, 26 1 and accompanying text.

297. See supra notes 58-63 and accompanying text.

298. See supra notes 215-16 and accompanying text.

299. See supra notes 2 1 8-22 and accompanying text.

300. See Hall, 947 F. Supp. at 1393.

301. Id.

302. Id.

303. Id.

304. Id. at 1394.

305. See Order 3 1 , supra note 20, at F-6.

306. See Hall, 947 F. Supp. at 1 394.

307. See KENNETH S. BROUN, ET AL., MCCORMICK ON EVIDENCE § 3 1 , at 4 1 (John William

Strong, ed., student abr. 4th ed. 1992).

308. See id.

309. See id.

310. See id. at 42; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993)
(stating that vigorous cross-examination is one of the "appropriate means of attacking shaky but

admissible evidence").

311. See Longan, supra note 15, at 301 (discussing the importance of presenting one's own

case to litigants).



1 998] COURT-APPOINTED EXPERT PANELS 257

points out inherent bias in the experts' opinions, and perhaps, affects the experts'

credibility with the jury. However, the panel testimony at trial usurps the parties'

control over the presentation oftheir cases and may step too far into the jury box.
Carefully preserved in the National Panel model is the individuality of each

expert's opinion because each testifies independently.
312

If jury members
perceive consistency in the panel members' testimony and know their court-
appointed status, the jury is likely to follow the perceived consensus of the

group.
313

Even apparent consensus of the experts in a panel implies deliberation

which is the function of the jury. The parties' perception of fairness in the
process will suffer as a result.

314 The National Panel model has positive
advantages in the multidistrict litigation context.

315
However, presenting panel

expert testimony at trial strays too far from traditional notions of party autonomy

and the right to a jury trial.

A court-appointed panel model allowing the parties to present their cases,
such as the Daubert Panel model, is likely the best choice to preserve autonomy
of the parties. First, it preserves the parties' control over presentation of their

cases at trial. This model allows for full disclosure of the party experts'
testimony for the court-appointed panel and the judge. Thus, the parties

themselves participate in supplementing the judge's knowledge of the technical
issues in the case. Additionally, judges may make better assessments of the party
experts' credibility since judges hear both the direct and cross-examination of the

party experts and the additional questions by the expert panel. Armed with the
opinions of the court-appointed panel, the parties' comments on the appointed
experts' findings, and the judge's own assessment of the credibility of the party
experts, the judge is well equipped to carry out his responsibilities as

"gatekeeper" of scientific testimony. Once the integrity of the evidence is
decided, the parties retain complete control over presentation of evidence to a

jury.

The Daubert Panel model also encourages parties to prepare well before trial
to present the foundation elements of the science they plan to use in their cases.

The process of presenting expert testimony and responding to questions by the
expert panel, the judge and opposing counsel, prepares the parties for making
coherent, simple and sound presentations of their scientific evidence at trial. In

addition, this pretrial process clarifies points of contention between the parties,

312. See Order 31, supra note 20, at F-4, F-5; see also Order 3 IE, supra note 200, at C-2

(referring to guidelines for court-appointed experts if they need assistance from other experts).

313. See supra notes 148-50 and accompanying text.

3 1 4. See Relkin, supra note 72, at 2269.

315. This Note attempts to analyze the two models for application by an individual judge

faced with an expert evidence challenge. The combined model, briefly discussed here, is likely the

best approach for multidistrict litigation purposes because it provides the greatest flexibility for trial

judges on remand while serving the efficiency goals of 28 U.S.C. § 1407 (1994). If the transferee

judge makes a ruling on summary judgment by one of the parties based on insufficiency of a party's

expert evidence, the combination procedure would also preserve testimony for use at trial in case

of reversal on appeal. Further analysis of this issue is beyond the scope of this paper.



258 INDIANA LAW REVIEW [Vol. 32:225

and potentially, furthers settlement negotiations or shortens the trial process. The
Daubert Panel model improves the integrity of scientific testimony at trial while
preserving party autonomy.

An alternative model emerges from both the National Panel model and the
Daubert Panel model. Such an alternative would include an opportunity for
cross-examination of both the panel experts (the National Panel model), and the

party experts (the Daubert Panel model). Preserving party autonomy on both
fronts guarantees party autonomy even if the court-appointed panel testified at
trial through videotaped depositions. In the case of a judge faced with a group

of toxic tort cases within his own jurisdiction, cross-examination of the panel
experts is unnecessary. In the Daubert Panel model, the judge considers the

parties' assessments of the panel experts' reports before making a ruling. In
addition, other safeguards exist to compensate for not cross-examining the expert

panel. These include the focus of admissibility hearings on scientific

methodology, not conclusions,
316

and the relaxed evidentiary guidelines of Rule

104(a).
317

Also, party control over the discovery process
318

performs a function

similar to cross-examination because such control encourages the parties to bring

panel expert bias and credibility issues to the judge's attention early in the

process.

Judges looking for a solution to expert venality and questionable science

should consider using the Daubert Panel model as a solution. Using a panel of

experts to assist the judge in his "gatekeeping" role balances the party autonomy,

efficiency and fairness goals of our judicial system most effectively.

Conclusion

Expert panels will become an important part of toxic tort and product
liability litigation in the Twenty-first Century. Judges faced with a decision to

impanel court-appointed experts should consider party autonomy, efficiency and

fairness concerns underlying the use of such bodies during the trial process.

Use of court-appointed expert panels in pretrial admissibility hearings allows

for the best of both worlds: good science and true adversarial presentation of the

issues. In addition, it provides an incentive to the parties to be prepared for

challenges to their scientific method well before trial. Benefits also include

productivity increases in the pretrial settlement process, narrowing of issues

before trial, and improving the quality of expert testimony during trial. Using

court-appointed panels to testify at trial is unnecessary with these benefits of the

Daubert Panel model. Court-appointed expert panels used to assist the judge in

evaluating the foundation of scientific testimony offered by the parties is the best

way to improve the quality of testimony presented in toxic tort and product
liability actions.

316. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993).
317. FED. R. Evid. 104(a) provides that the court "is not bound by the rules of evidence

except those with respect to privileges."

318. See FED. R. Civ. P. 26(f).