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Adversarial Medical and Scientific Testimony and Lay Jurors: A Proposal for Medical Malpractice Reform

Published online by Cambridge University Press:  24 February 2021

Jody Weisberg Menon
Jody Weisberg Menon*
Affiliation:
Williams College; Boston University School of Law
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Extract

Pleas for reform of the legal system are common. One area of the legal system which has drawn considerable scholarly attention is the jury system. Courts often employ juries as fact-finders in civil cases according to the Seventh Amendment of the Constitution: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved … .” The general theory behind the use of juries is that they are the most capable fact-finders and the bestsuited tribunal for arriving at the most accurate and just outcomes. This idea, however, has been under attack, particularly by those who claim that cases involving certain difficult issues or types of evidence are an inappropriate province for lay jurors who typically have no special background or experience from which to make informed, fair decisions.

The legal system uses expert witnesses to assist triers of fact in understanding issues which are beyond their common knowledge or difficult to comprehend.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 21 , Issue 2-3: Conflicts of Interest in Health Care , 1995 , pp. 281 - 300
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1995

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References

1 U.S. CONST, amend. VII.

2 See infra part I.A.

3 See, e.g., Friedland, Steven I., Legal Institutions: The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. REV. 190, 190 (1990)Google Scholar.

4 See, e.g., ANNE STRICK, INJUSTICE FOR ALL 121-66 (1977).

5 See, e.g., Lee, Tahirih V., Court-Appointed Experts and Judicial Reluctance: A Proposal to Amend Rule 706 of the Federal Rules of Evidence, 6 YALE L. & POL'Y REV. 480, 483 (1988)Google Scholar. Reform efforts to handle these problems of lawyers and expert witnesses have tended to appeal to professional ethics or rules of evidence on admissibility. See, e.g., Bernstein, David, Note, Out of the Fryeing Pan and into the Fire: The Expert Witness Problem in Toxic Tort Litigation, 10 REV. LITIG. 117, 142-45 (1990)Google Scholar.

6 See, e.g., Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda-Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 273- 74. A comment by Chief Justice Warren Burger illustrates this perception: “[C]ivil juries waste time and are often incapable of understanding the issues presented to them.” Brodin, Mark S., Accuracy, Efficiency, and Accountability in the Litigation Process—The Case for the Fact Verdict, 59 U. CIN. L. REV. 15, 17 (1990)Google Scholar.

7 According to Professor Neil Vidmar, [s]ome legal professionals have questioned how a group of laypersons can make intelligent and unbiased judgments in tasks to which professionals devote years of education and their entire careers. At the same time, doctors and their professional organizations have questioned whether any group of persons other than physicians can make judgments about medical negligence because of the difficult and complex technical medical questions that they allege are involved in malpractice disputes.

Vidmar, Neil, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 DUKE L.J. 217, 263 (1993)Google Scholar (footnote omitted).

8 Interestingly, some commentators, such as Stephen Daniels, Robert Hayden, Michael Saks, and Kenneth Chesebro, have attributed the plentiful criticism of the jury to the efforts of influential interest groups. They claim that these groups have exploited and misrepresented the research on juries in order to further their tort reform agendas. Id. at 265.

9 Notably, many of the issues raised and proposed solutions explored are applicable to a wide variety of cases utilizing medical experts. These include other personal injury cases and toxic tort cases as well as criminal proceedings in cases of rape or sexual abuse. Furthermore, several of the arguments may be generalized to cases involving nonmedical, technically complex material, for instance, in the areas of patent law or securities regulation.

10 For comprehensive background on and analysis of the judicial system and its use of juries, see such classic works as JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE (1949) and HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY (1966). See also JOHN GUINTHER, THE JURY IN AMERICA (1988); SAUL M. KASSIN & LAWRENCE S. WRIOHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES (1988).

11 Thomas B. Metzloff, Resolving Malpractice Disputes: Imaging the Jury's Shadow, LAW & CONTEMP. PROBS., Winter 1991, at 43,44.

12 Harris, Ora F., Jr., Complex Product Design Litigation: A Need for More Capable Fact-Finders, 79 KY. L.J. 477, 498-99 (1990-91)Google Scholar; Sperlich, Peter W., The Case for Preserving Trial by Jury in Complex Civil Litigation, 65 JUDICATURE 394, 414-15 (1982)Google Scholar.

13 See Beuscher, J.H., The Use of Experts by the Courts, 54 HARV. L. REV. 1105, 1108-09 (1941)Google Scholar (describing the English common law use of special juries); see also Drazan, Dan, The Case for Special Juries in Toxic Tort Litigation, 72 JUDICATURE 292, 294 (1989)Google Scholar.

14 Friedland, supra note 3, at 193-94; Wesley, John W., Note, Scientific Evidence and the Question of Judicial Capacity, 25 WM. & MARY L. REV. 675, 681-82 (1984)Google Scholar.

15 Friedland, supra note 3, at 194, 196.

16 Cecil, Joe S. et al., Citizen Comprehension of Difficult Issues: Lessons from Civil Jury Trials, 40 AM. U. L. REV. 727, 744-45, 749 (1991)Google Scholar; Valerie P. Hans, The Jury's Response to Business and Corporate Wrongdoing, LAW & CONTEMP. PROBS., Autumn 1989, at 177, 185; Vidmar, Neil, The Unfair Criticism of Medical Malpractice Juries, 76 JUDICATURE 118, 124 (1992)Google Scholar.

17 Cecil et al., supra note 16, at 745-48. For the original empirical research on judge-jury agreement, see KALVEN & ZEISEL, supra note 10, at 63-65.

18 Cecil et al., supra note 16, at 749; Hans, supra note 16, at 184-85.

19 Bovbjerg, Randall R. et al., Juries and Justice: Are Malpractice and Other Personal Injuries Created Equal?, 54 LAW AND CONTEMP. PROBS. 5, 14 (1991)Google Scholar; see also Vidmar, supra note 16, at 124.

20 Kirst, Roger W., The Jury's Historic Domain in Complex Cases, 58 WASH. L. REV. 1, 29-30 (1982)Google Scholar; Lempert, Richard O., Civil Juries and Complex Cases: Let's Not Rush to Judgment, 80 MICH. L. REV. 68, 80-81 (1981)Google Scholar; Sperlich, supra note 12, at 414-15.

21 See infra text accompanying notes 24-32.

22 Hindsight bias refers to the psychological phenomenon whereby a person, rather than perceiving the situation as it existed when the critical event happened, is influenced by his or her knowledge of the outcome. Poythress, Norman G. et al., Reframing the Medical Malpractice Tort Reform Debate: Social Science Research Implications for Non-Economic Reforms, 16 LAW & PSYCHOL. REV. 65, 99 (1992)Google Scholar.

23 Id. at 97-103; See also Metzloff, supra note 11, at 44. Reflecting this juror sympathy bias, Professor F. Patrick Hubbard states that “juries are likely to be very sympathetic to the plight of victims and, therefore, may tend to resolve doubts in favor of plaintiffs regardless of what they are instructed to do by the judge.” Hubbard, F. Patrick, The Physicians’ Point of View Concerning Medical Malpractice: A Sociological Perspective on the Symbolic Importance of “Tort Reform,” 23 GA. L. REV. 295, 312 (1989)Google Scholar.

24 Bovbjerg, supra note 19, at 14; FRANK, supra note 10, at 130.

25 Brodin, supra note 6, at 21.

26 STRICK, supra note 4, at 189.

27 Hubbard, supra note 23, at 312.

28 See Panel Two: Innovations for Improving Courtroom Communications and Views from Appellate Courts, 68 IND. L.J. 1061, 1069 (1993) [hereinafter Panel Two] (illustrative statement made by panelist Michael Saks).

29 Cecil et al., supra note 16, at 755-60. As Stephen Daniels has commented, “juries are likely to be misled or confused in such cases by the ‘battle of experts’ over the technical evidence, thereby eliminating any chance for a fair, rational decision.” Daniels, supra note 6, at 280. He states, furthermore, that juries are allegedly “not competent to decide issues in complex, lengthy trials. Critics claim that jury attention span decreases in long trials, especially… medical malpractice cases, which entail complicated technical evidence.” Id.

30 Drazan, supra note 13, at 295.

31 Bernstein, supra note 5, at 123. Other authors have voiced similar worries: “[C]ourts are becoming increasingly concerned that cases are degenerating into decisions based on which expert sounds better, rather than decisions based on application of recognized medical and scientific literature to the facts presented … . “ Pierce, Stanley et al., Expert Testimony in Technically Complex Litigation, 7 COOLEY L. REV. 429, 429 (1990)Google Scholar.

32 See John W. Osborne, Judicial/Technical Assessment of Novel Scientific Evidence, 1990 U. ILL. L. REV. 497, 530 n.307, 532 (describing “the tendency of a lay jury to overvalue ostensibly scientific evidence“); see also Daniels, supra note 6, at 280 (“[u]ninformed, gullible lay jurors may accept expert testimony uncritically, ignore it, or just not understand it at all.“).

33 For example, Justice Heiple recently expressed his opinion in favor of abolishing “dumb” civil juries. Panel Two, supra note 28, at 1067, 1069.

34 See discussion infra part II.C.

35 Beuscher, supra note 13, at 1105-06.

36 Wasyliw, Orest E. et al., Beyond the Scientific Limits of Expert Testimony, 13 BULL. AM. ACAD. PSYCHIATRY L. 147, 154 (1985)Google Scholar; see also Lee, supra note 5, at 483; Otto, Randy K., Bias and Expert Testimony of Mental Health Professionals in Adversarial Proceedings: A Preliminary Investigation, 7 BEHAV. SCI. & L. 267, 268 (1989)Google Scholar; Poythress, supra note 22, at 111 (commenting on “the venality of some experts“).

Legal scholars have observed that “an expert can be found to support almost any position.” Black, Bert, A Unified Theory of Scientific Evidence, 56 FORDHAM L. REV. 595, 597-98 (1988)Google Scholar. This has led to “the practice of shopping for experts.” Lee, supra note 5, at 483. As one commentator explains,

Expert testimony has become big business. According to Judge Jack Weinstein, experts “can be found to testify to almost any factual theory, no matter how frivolous.” Some experts advertise their intellectual wares in legal magazines. Others are affiliated with expert witness brokers; lawyers can shop for the expert of their choice through such services. An attorney who wants to file a medical malpractice claim, for example, can usually find an expert to back any causation theory through a medical-legal consulting firm. One such firm boldly promises: “If the first doctor we refer doesn't agree with your legal theory, we will provide you with the name of a second prospective expert.” Bernstein,

supra note 5, at 120.

37 Wasyliw, supra note 36, at 152-53.

38 JAMES C. MOHR, DOCTORS AND THE LAW: MEDICAL JURISPRUDENCE IN NINETEENTH-CENTURY AMERICA 197-99 (1993); Gross, Samuel R., Expert Evidence, 1991 Wis. L. REV. 1113, 1115Google Scholar.

39 Metzloff, Thomas B., Alternative Dispute Resolution Strategies in Medical Malpractice, 9 ALASKA L. REV. 429, 436 (1992)Google Scholar; see also Lee, supra note 5, at 483 (noting that the most qualified experts may be reluctant to testify as expert witnesses because of concerns that their reputations will be damaged); T. David Marshall, Medical Evidence in Malpractice Actions, CHITTY's L.J., Jan. 1970, at 6-7.

40 Poythress, supra note 22, at 100. See discussion supra part I.A.

41 See generally STRICK, supra note 4.

42 Notably, the ethics of the legal profession do not discourage this practice. Bernstein, supra note 5, at 122-23.

43 STRICK, supra note 4, at 187-89.

44 Id. at 186.

45 Id.; FRANK, supra note 10, at 85. See, e.g., Amy G. Langerman, Making Sure Your Experts Shine: Effective Presentation of Expert Witnesses, TRIAL, Jan. 1992, at 106. In addition, studies designed to discover which types of jurors are most advantageous for particular cases advise lawyers on the best jury selection strategies. See, e.g., Brodsky, Stanley L. et al., Jury Selection in Malpractice Suits: An Investigation of Community Attitudes Toward Malpractice and Physicians, 14 INT'L J. L. & PSYCHIATRY 215 (1991)Google Scholar.

46 Jasanoff, Sheila & Nelkin, Dorothy, Science, Technology, and the Limits of Judicial Competence, 22 JURIMETRICS J. 266, 267 (1982)Google Scholar.

47 Bernstein, supra note 5, at 123.

48 Osborne, supra note 32, at 518, 523-24.

49 An example of this would be a judicial instruction stating that the jury must determine which of three factors was the cause of the plaintiff's injury, when, in fact, a fourth cause is possible given a clear understanding of the medical issues in the case.

50 STRICK, supra note 4, at 189-91.

51 An example of this is one judge's “clarification” of the term “ordinary care“: By the term “Ordinary Care” as here used, is meant such care as ordinarily prudent persons ordinarily exercise, or are accustomed to exercising under the same or similar circumstances, in conducting or carrying on the same or similar business, and this applies to the defendant so far as the negligence complained of is concerned, as well as to the plaintiff in regard to contributory negligence on his part. Id. at 190.

52 For a discussion of how this carries over into criticism of the jury, see supra text accompanying notes 25-28.

53 See sources cited infra part II.

54 See sources cited infra part II.A-B.

55 See sources cited infra part II.C.

56 Poythress, supra note 22, at 65.

57 In states such as New York, panel decisions can be entered into evidence at trial. Carlisle, Jay C., Simplified Procedure for Court Determination of Disputes Under New York's Civil Practice Law and Rules, 54 BROOK. L. REV. 95, 114 (1988)Google Scholar.

58 Metzloff, supra note 39, at 441-42; see also Carlisle, supra note 57, at 114; Hutkin, Allen K., Resolving the Medical Malpractice Crisis: Alternatives to Litigation, 4 J.L. & HEALTH 21, 38-39 (1989-90)Google Scholar; Paglia, Antoinette D., Note, Taking the Tort Out of Court—Administrative Adjudication of Medical Liability Claims: Is it the Next Step?, 20 Sw. U. L. REV. 41, 43-44 (1991)Google Scholar; Qual, Shirley, A Survey of Medical Malpractice Tort Reform, 12 WM. MITCHELL L. REV. 417, 430-31 (1986)Google Scholar; Schor, Neil D., Note, Health Care Providers and Alternative Dispute Resolution: Needed Medicine to Combat Medical Malpractice Claims, 4 OHIO ST. J. ON DISP. RESOL. 65, 68-78 (1988)Google Scholar.

59 See discussion supra part I.

60 See, e.g., Harris, supra note 12, at 479-93; Constance S. Huttner, Note, Unfit for Jury Determination: Complex Civil Litigation and the Seventh Amendment Right of Trial by Jury, 20 B .C. L. REV. 511 (1979); Kersten, Montgomery, Note, Preserving the Right to Jury Trial in Complex Civil Cases, 32 STAN. L. REV. 99 (1979)Google Scholar; Kirst, supra note 20; Paglia, supra note 58; Rita Sutton, A More Rational Approach to Complex Civil Litigation in the Federal Courts, 1990 U. CHI. LEGAL F. 575; The Case for Special Juries in Complex Civil Litigation, 89 YALE L.J. 1155 (1980). The impetus for this notion comes from a footnote in Ross v. Bernhard, 396 U.S. 531, 538 n. 10 (1970).

61 Chesebro, Kenneth J., Galileo's Retort: Peter Huber 's Junk Scholarship, 42 AM. U. L. REV. 1637, 1700-01 (1993)Google Scholar; see Brodin, supra note 6, at 18 n. 18; der Mehden, Lisa von, The Role of the Jury and the Court in Assessing Front Pay Awards Under the Age Discrimination in Employment Act, 58 U. CHI. L. REV. 1475, 1493-94 (1991)Google Scholar. See generally Huttner, supra note 60; Kersten, supra note 60.

62 See Bernstein, supra note 5, at 147; Kersten, supra note 60, at 118-19; Thomas B. Metzloff, Researching Litigation: The Medical Malpractice Example, LAW & CONTEMP. PROBS., Autumn 1988, at 199, 237.

63 See Metzloff, supra note 11, at 115; Neil J. Vidmar, Foreword: Empirical Research and the Issue of Jury Competence, 52 LAW & CONTEMP. PROBS., Autumn 1989, at 1,2.

64 See, e.g., BROOKINGS INSTITUTION, CHARTING A FUTURE FOR THE CIVIL JURY SYSTEM: REPORT FROM AN AMERICAN BAR ASSOCIATION/BROOKINGS SYMPOSIUM (1992); Panel Two, supra note 28, at 1069 (statement made by panelist Professor Michael J. Saks).

65 See, e.g., Huttner, supra note 60; Harris, supra note 12.

66 Gross, supra note 38, at 1119.

67 Connors v. University Assocs. in Obstetrics and Gynecology, 769 F. Supp. 578, 585 (D. Vt. 1991).

68 See discussion infra part III.

69 A bench trial is defined as a trial before a judge sitting without a jury. BLACK's LAW DICTIONARY 156 (6th ed. 1990). Rule 52 of the Federal Rules of Civil Procedure permits bench trials when the right to a jury is waived. This section deals only with lay judges. For discussion of the use of expert judges, see infra part II.C. I .a.

70 Confirming this, Professor Harry Kalven states that “trial by judge is the relevant and obvious alternative to trial by jury. To argue against jury trial is, therefore, to argue for bench trial.” Kalven, Harry, Jr., The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1063 (1964)Google Scholar.

In fact, Leon Green's attack on the jury system in the 1930s contrasted the advantages of bench trials with the disadvantages of juries. See Wells, Catharine P., Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 MICH. L. REV. 2348, 2391-92 (1990)Google Scholar.

71 Priest, George L., Private Litigants and the Court Congestion Problem, 69 B.U. L. REV. 527, 536 (1989)Google Scholar.

72 But see Vidmar, supra note 7, at 261 (“jurors are likely to exhibit less variability in their awards than single judges … .“).

73 Some authors claim that professional decision-makers “can do a better job than jurors because their legal training makes them less susceptible to legally irrelevant emotional factors and because their experience and knowledge with regard to other cases gives them a more realistic perspective … . “ Others such as Kevin Clermont and Theodore Eisenberg claim, however, that their research disputes this. Vidmar, supra note 7, at 260.

74 Even the Supreme Court has stated that the jury “safeguard[s]… against the compliant, biased, or eccentric judge.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968), cited in Massaro, Toni M., Peremptories or Peers?—Rethinking Sixth Amendment Doctrine, Images, and Procedures, 64 N.C. L. REV. 505, 511 (1986)Google Scholar. An example of such an eccentric judge who irrationally reached his decision by flipping a coin is recounted in Judith Resnik, Precluding Appeals, 70 CORNELL L. REV. 603, 610-11 (1985).

75 Chesebro, supra note 61, at 1700.

76 Resnik, supra note 74, at 621; Chesebro, supra note 61, at 1700 (“Apart from the occasional situation in which a judge possesses unique training,… the assumption that a jury collectively has less ability to comprehend complex material than does a single judge is an unjustified conclusion.“) (quoting Judge Higginbotham, Patrick E., Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 TEX. L. REV. 47, 48-50 (1977)Google Scholar); see also Wells, supra note 70, at 2407 (“group deliberation has the effect of limiting the impact of individual normative perspectives on the outcome of the case.“).

77 Massaro, supra note 74, at 511.

78 Id.

79 As it is used in this Note, alternative dispute resolution refers to any method of resolving a legal claim which does not involve litigation. BLACK's LAW DICTIONARY 78 (6th ed. 1990).

80 Literature on the topic of ADR abounds, but it is outside the scope of this paper to examine the specific merits of each ADR method. Therefore, in the interests of simplifying—and at the risk of oversimplifying— the discussion of ADR in this section will be generalized to the most common forms of ADR, for example, mediation. For a specific discussion of mediation as an ADR method used in the medical malpractice context, see Catherine S. Meschievitz, Mediation and Medical Malpractice: Problems with Definition and Implementation, LAW & CONTEMP. PROBS., Winter 1991, at 195, and Andrew McMullen, Comment, Mediation and Medical Malpractice Disputes: Potential Obstacles in the Traditional Lawyer's Perspective, 1990 J. DISP. RESOL. 371.

81 See Metzloff, supra note 39, at 435-37; Dulen, Maureen, Comment, Twenty Years Later… Contractual Arbitration as Medical Malpractice Tort Reform, 1992 J. DISP. RESOL. 325, 327Google Scholar; see also Schor, supra note 58, at 70.

82 Dulen, supra note 81, at 327, 333.

83 Id. at 326. Notably, in some jurisdictions like New York, members of health maintenance organizations wishing to file claims of medical malpractice against their health care providers must submit their dispute to arbitration. Carlisle, supra note 57, at 108-09.

84 Dulen, supra note 81, at 334-36.

85 Id. at 330.

86 A nonbinding result is one which leaves dissatisfied parties free to resort to the traditional litigation process.

Again, it should be acknowledged that because this Note gives only cursory treatment to the topic of ADR, there are other important criticisms of ADR that are beyond its scope.

87 For an explanation of these ADR strategies, see Metzloff, supra note 39, at 437-46. Please also note that because summary jury trials, unlike the other ADR methods, employ juries, they do not strictly belong in this section of the Note.

88 Schor, supra note 58, at 79-80.

89 See, e.g., Abramson, Elliott M., The Medical Malpractice Imbroglio: A Non-Adversarial Suggestion, 78 KY. L.J. 293 (1989-90)Google Scholar; Luneberg, William V. & Nordenberg, Mark A., Specially Qualified Juries and Expert Nonjury Tribunals: Alternatives for Coping with the Complexities of Modern Civil Litigation, 67 VA. L. REV. 887 (1981)Google Scholar; Nordenberg, Mark A. & Luneberg, William V., Decisionmaking in Complex Federal Civil Cases: Two Alternatives to the Traditional Jury, 65 JUDICATURE 420, 427 (1982)Google Scholar.

90 See discussion supra part II.B.l.

91 Kreiling, Kenneth, Scientific Evidence: Toward Providing the Lay Trier with the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence, 32 ARIZ. L. REV. 915, 929-35 (1990)Google Scholar.

92 See supra notes 20-21 and accompanying text.

93 According to Professor Thomas Metzloff,

[d]espite common perceptions, many malpractice trials do not require juries to sort through conflicting and complex expert testimony on the applicable standard of care. Instead, these cases present factual questions requiring an assessment of the credibility of non-expert witnesses; trial is required in large part because of parties’ differing versions as to what happened.

Metzloff, supra note 11, at 71. These types of “factual questions” will be termed “event issues” later in this Note. See infra notes 133-36 and accompanying text.

94 See Kersten, supra note 60, at 115-19.

95 See, e.g., Gross, supra note 38.

96 Id. at 1220; Judyth W. Pendell, Enhancing Juror Effectiveness: An Insurer's Perspective, LAW & CONTEMP. PROBS., Autumn 1989, at 311, 317-19. Under this method of introducing evidence, the judge would appoint an expert either mutually agreed on by the parties or independently chosen by the court to provide testimony to the jury. FED. R. EVID. 706; see Bernstein, supra note 5, at 145.

This strategy has even been the subject of social science research which examined the effects of adversarial versus nonadversarial presentations of expert evidence on juries. See Brekke, Nancy J. et al., Of Juries and Court-Appointed Experts, 15 LAW & HUMAN. BEHAV. 451 (1991)Google Scholar.

97 Gross, supra note 38, at 1187-1208, 1220-32; Elliott, E. Donald, Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence, 69 B.U. L. REV. 487, 501-04 (1989)Google Scholar; Lee, supra note 5, at 492-99; Smith, Hubert W., Scientific Proof and the Relations of Law and Medicine, 23 B.U. L. REV. 143, 149 (1943)Google Scholar. See generally THOMAS E. WILLGING & FEDERAL JUDICIAL CENTER, COURT-APPOINTED EXPERTS (1986).

98 Gross, supra note 38, at 1220; Lee, supra note 5, at 480. Reasons why judges may be reluctant to exercise their power to appoint experts include the worry that a judge who selects a witness will no longer be seen as impartial, the fear of reversed judgments on appeal, the concern that the expert appointed might have unknown biases or improperly influence the jury, the disinclination to interfere with the lawyers’ adversarial functions, and the lack of funds to hire experts. Bernstein, supra note 5, at 146; Lee, supra note 5, at 494-99.

99 Gross, supra note 38, at 1220.

100 In fact, in the 1950s and 1960s, some states experimented with the use of court-appointed medical experts in malpractice cases and received positive reviews for the effectiveness and efficiency of these programs. Lee, supra note 5, at 484.

101 But see Elliott, supra note 97, at 503-04 (“While no one is without values and preconceptions, it seems to me that experts picked by the court for their lack of bias must be more neutral and objective than those hired by attorneys for their biases.“).

102 Jasanoff & Nelkin, supra note 46, at 275; Wesley, supra note 14, at 698-700; Bernstein, supra note 5, at 145. Courts are authorized to appoint special masters when a case involves complicated issues. FED. R. CIV. P. 53.

103 Wesley, supra note 14, at 700.

104 Hand, Learned, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 56 (1901-02)Google Scholar.

105 The tribunal would “perform all of the scientific inquiry and simply provide the court with a bottom line evaluation.” Osborne, supra note 32, at 534.

106 See id. at 518-19, 533-38.

107 Harris, supra note 12, at 501; see Osborne, supra note 32, at 533-38.

108 See generally Di Lello, Edward V., Note, Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level, 93 COLUM. L. REV. 473 (1993)Google Scholar.

109 Jasanoff & Nelkin, supra note 46, at 275. In Cook County, Illinois, this approach has been tried by setting up a “special medical malpractice trial division” in the hopes of greater efficiency in resolving these types of disputes. Priest, supra note 71, at 546-47.

110 A detailed discussion of the techniques listed in this section is beyond the scope of this Note. Fortunately, many scholars have commented on these strategies, resulting in a wide body of literature which assesses the advantages and disadvantages of utilizing such practices. Readers are strongly encouraged to consult the sources listed in infra note 111 for more thorough coverage of this topic.

111 Brodin, supra note 6, at 21; Cecil et al., supra note 16, at 764-72; Committee on Federal Courts of the New York State Bar Association, Improving Jury Comprehension in Complex Civil Litigation, 62 ST. JOHN's L. REV. 549, 550-69 (1988); Harris, supra note 12, at 503-04; Heuer, Larry & Penrod, Steven D., Some Suggestions for the Critical Appraisal of a More Active Jury, 85 Nw. U. L. REV. 226, 226-27 (1990)Google Scholar; Huber, Peter, Junk Science, 1990 U. CHI. LEGAL F. 273, 300Google Scholar; Kersten, supra note 60, at 116-18; Kreiling, supra note 91, at 935-39; Panel Two, supra note 28, at 1069, 1070 n.30, 1076; Pendell, supra note 96, at 314-17; Poythress, supra note 22, at 103-10; Sand, Leonard B. & Reiss, Steven A., A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. REV. 423, 437-56 (1985)Google Scholar; Strawn, David U. & Thomas, G. Munsterman, Helping Juries Handle Complex Cases, 65 JUDICATURE 444, 444-47 (1982)Google Scholar; Withey, Carrie P., Court-Sanctioned Means of Improving Jury Competence in Complex Civil Litigation, 24 ARIZ. L. REV. 715, 718-26 (1982)Google Scholar; Withrow, James R., Jr. & Suggs, David L., Procedures for Improving Jury Trials of Complex Litigation, 1980 ANTITRUST BULL. 493, 506-11Google Scholar; McLaughlin, Michael A., Questions to Witnesses and Notetaking by the Jury as Aids in Understanding Complex Litigation, 18 NEW ENG. L. REV. 687, 688-89 (1983)Google Scholar.

112 Drazan, supra note 13, at 297-98; Luneberg & Nordenberg, supra note 89; Nordenberg & Luneberg, supra note 89, at 423-27; Pendell, supra note 96, at 319-20 (claiming that “blue ribbon juries” can be used if all parties consent); Withey, supra note 111, at 728-30; Withrow & Suggs, supra note 111, at 512.

113 See, e.g., Bernstein, supra note 5, at 145 (explaining the composition of a special jury for complex toxic tort cases).

114 Luneberg & Nordenberg, supra note 89, at 902.

115 See Fay v. New York, 332 U.S. 261 (1947).

116 28 U.S.C. §§ 1861-1874 (1976).

117 Id. § 1861.

118 See Harris, supra note 12, at 513-14.

119 Ora Fred Harris, Jr. contends that “a jury of experts that is carefully selected by tried methods will be as representative of a cross section of the community as a lay jury currently empaneled under existing selection procedures.” Id. at 513.

120 See discussion supra part II.A.

121 See discussion supra part II.C. I .b. These techniques can be used effectively whether or not a lay jury or a “blue ribbon” jury is used.

122 See supra note 108 and accompanying text.

123 Pratt v. Stein, 444 A.2d 674, 687 n.21 (Pa. Super. Ct. 1982).

124 See discussion supra part I.

125 This stage assumes that the claim has survived a screening panel for those states electing to use them.

126 A prime example of a case in which ADR might have been appropriate is Pratt, 444 A.2d at 674. In that case, the trial, lasting almost three months, generated a transcript of well over 7,000 pages of “confusing” testimony about “exceedingly complex” issues. Id. at 687 n.21.

127 See discussion supra part I.

128 See supra note 82 and accompanying text.

129 This anti-originalist approach to the Constitution supports not only binding ADR but also other reforms seeking to avoid traditional lay juries.

130 769 F. Supp. 578 (D. Vt. 1991).

131 Id. at 579. The specific device used during the surgical procedure was a self-retaining retractor. Id.

132 Id.

133 The facts of a case described by Professor Thomas Metzloff effectively illustrate an “event” issue: The plaintiff's husband claimed he had made two calls to the doctor on Saturday reporting that his wife had a raging fever following surgery and was told by the doctor or his receptionist to come to the office on Monday. The doctor claimed he received a single call indicating only a slight fever. When the plaintiff came to the office as allegedly instructed, she was suffering from a serious infection that required extensive treatment.

Metzloff, supra note 11, at 71. As is evident from this case, the issue involves the nature of the telephone correspondence between the doctor's office and the patient rather than any technical medical concept. This type of factual determination as to what happened is, therefore, within the competence of an average lay juror. See id.

134 A technical question might involve a determination of which among several potential factors was the cause of a particular medical result. For instance, whether a patient's heart attack on the operating table was caused by a pre-existing medical condition or by the anesthesia, bringing about a vagal nerve response which slowed the heart rate, is a technical question from the facts of Lanzet v. Greenberg, 594 A.2d 1309, 1313-14 (N.J. 1991).

135 See, e.g., Niemi v. Upper Peninsula Orthopedic Assocs., 433 N.W.2d 363, 365 (Mich. Ct. App. 1988) (discussing the trial court's categorization of medical malpractice cases).

136 According to one study of contested medical malpractice cases, “one-quarter presented important non-medical factual issues.” Metzloff, supra note 11, at 71-72.

137 See discussion supra part II.C.I.a. The reader should keep in mind that a few cases may be exclusively event-oriented, but that most cases will involve both types of issues. Thus, it is likely that most cases will follow both the “event” and “technical” tracks with respect to different issues.

138 The same reasons as discussed, supra, in the text accompanying notes 76-78, apply here.

139 See discussion supra part II.C.2.

140 See supra note 133.

141 See generally BROOKINGS INSTITUTION, supra note 64.