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The Role of Experts in Assessing Damages – A Law and Economics Account

Published online by Cambridge University Press:  20 January 2017

Michael Faure  and
Louis Visscher
Michael Faure
Affiliation:
METRO, Maastricht University and Rotterdam Institute of Law and Economics (RILE), Erasmus University Rotterdam.
Louis Visscher
Affiliation:
Rotterdam Institute of Law and Economics (RILE), Erasmus University Rotterdam.
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Abstract

In this contribution we focus on the role of experts in the assessment of tort damages from an economic point of view. We distinguish two different aspects.

First, we examine the role which economists might play in assessing damages in tort cases. This approach focuses on the insights that Law and Economics provides regarding the correct assessment of damages. We pay specific attention to two problematic forms of losses where economic insights may play an important role: pure economic loss and personal injury damage (both loss of income and compensation for immaterial losses due to fatal and non-fatal accidents).

Second, we investigate from a Law and Economics point of view the role of experts in general (not only economists) in the assessment of damages. We discuss i.a. the question why experts may be involved in the assessment of damages, the potential problems (and the possible solutions) when using experts, and differences between party appointed experts and court appointed experts.

It turns out that the economic analysis can provide a different, insightful viewpoint in some respects, such as the fact that market based mechanisms may help to provide incentives to party appointed experts to provide an accurate and objective damage assessment.

Type
Articles
Information
European Journal of Risk Regulation , Volume 2 , Issue 3 , September 2011 , pp. 376 - 396
Copyright
Copyright © Cambridge University Press 2010

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References

1 Verkerk explains that in common law countries the expert is often called an “expert witness”, and in continental jurisdictions an “expert”. This is caused by the fact that the former jurisdictions are more adversarial and the latter more non-adversarial. See Verkerk, Remme, “Comparative aspects of expert evidence in civil litigation”, 13 The International Journal of Evidence and Proof (2009), pp. 167 et sqq., at pp. 167, 170CrossRefGoogle Scholar; see also Verkerk, Remme, Fact Finding in Civil Litigation. A Comparative Perspective (Antwerp: Intersentia, 2010), at p. 160.Google Scholar

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23 With this we do not suggest that it would be socially optimal never to award compensation for small losses, due to administrative costs. This could be problematic since the activity may shift to cause several small losses instead of a few larger ones. Moreover, if the court system works well, there may be fewer cases and thus administrative costs can be lower since parties could anticipate the results of the court case and would thus settle.

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38 A further refinement could consist of taking into account that with increasing age the QALY will decrease (as a result of elderly illnesses et cetera), in which case the compensation would also be lower.

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64 See on this Daubert case law and the subsequent Supreme Court case law also “Reliable Evaluation of Expert Testimony” (note), 116 Harvard Law Review (2002–2003), pp. 2142 et sqq.; Werden, “Admissibility of Expert Economic Testimony”, supra note 3.

65 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 5.

66 In Re Silica Products Liability Litigation, no. 2:05-CV-00121, S.D. Tex. 30 June, 2005.

67 See for a discussion of this interesting case Sarvadi and Blackwood, “Expert Testimony in the Silica-Cases”, supra note 54.

68 These were based inter alia on an x-ray of the chest, a prior history of exposure to silica and the exclusion of other possible sources of the disease.

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72 Thornton and Ward, “Economist in Tort Litigation”, supra note 6, at p. 108.

73 The use of lists does, however, not go undisputed either. To the extent that courts would only appoint experts on the list and not others of equal quality these lists could lead to an effective monopoly. We will discuss this problem in the next subsection. However, removing a bad expert from a list could provide appropriate incentives to the expert for a higher quality testimony, even if being party appointed.

74 See generally on self-regulation Ogus, Anthony, “Self-regulation”, in Bouckaert, Boudewijn and De Geest, Gerrit (eds), Encyclopaedia of Law and Economics, Vol. V, The Economics of Crime and Litigation (Cheltenham: Edward Elgar, 2000), pp. 587 et sqq. Google Scholar; Ogus, Anthony, “Rethinking Self-regulation”, 15 Oxford Journal of Legal Studies (1995), pp. 97 et sqq. CrossRefGoogle Scholar

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77 Nederlands Instituut van Register Experts (NIVRE).

78 Associatie van Belgische Experten (ABEX).

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87 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 28.

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90 This corresponds with the simple example provided at the end of Section IV.3 supra.

91 This is strongly related to the behavioural bias of the “anchoring effect” discussed above.

92 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at pp. 12, 13.

93 Froeb, Luke and Kobayashi, Bruce, “Evidence production in adversarial vs. inquisitorial regimes”, 70 Economics Letters (2001), pp. 267 et sqq. CrossRefGoogle Scholar; Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 14; Tomlin and Cooper, “Expert Testimony”, supra note 55, at p.8.

94 See Posner, “Economic Expert Witness”, supra note 69, at p. 96.

95 Sales and Shuman, Experts in Court, supra note 58, at p. 132.

96 Verkerk, Comparative aspects, supra note 1, at pp. 168 et sqq.

98 Ibid., at p. 175.

98 Ibid., at p. 180.

99 Ibid., at p. 193.

100 Mandel, “Going for the Gold”, supra note 5, at p. 119.

101 Posner, “Economic Expert Witness”, supra note 69, at pp. 94, 95.

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105 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 31.

106 See Sarvadi and Blackwood, “Expert Testimony in the Silica-Cases”, supra note 54, at p. 34.

107 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 32.

108 Alemanno, Alberto, “Science and Risk Regulation: The Role of Experts in Decision-Making and Judicial Review”, in Vos, Ellen (ed.), European Risk Governance – Its Science, its Inclusiveness and its Effectiveness, CONNEX Report Series Nr 06 (2008), pp. 37 et sqq., at pp. 65 et sqq.Google Scholar