Judge John Shepard Wiley reluctantly concurred with a recent California appellate decision allowing a Los Angeles Unified School District teacher to sue for failure to accommodate her claimed disability: Acute sensitivity to wi-fi signals. But his concurrence lays out the risks of allowing such cases to proceed, especially in California, where plaintiff expert witnesses have demonstrated near-magical powers to coax huge verdicts out of jurors. His concurrence/dissent in Brown v. LAUSD, B294240 is well worth reading. Some excerpts:
“It does not take much experience as a trial judge in Los Angeles to realize the use of expert witnesses has run riot. To get a feel for the situation, try an internet search on `expert witness Los Angeles.’ If your client has the budget, the available inventory is remarkable. Surprising numbers of these experts also happen to be lawyers—or perhaps, after reflection, this is not so surprising…”
“For good reason, California state civil procedure makes complaints easy to write and hard to attack: experience shows litigation effort devoted solely to attacking pleadings is costly and time consuming and rarely yields much helpful information for litigants about the true value of their case.”
“Yet even with our state’s healthy attitudes about easy pleading, I worry about giving any sort of green light to this unprecedented and unorthodox disability claim. Plaintiff’s counsel was most reluctant at oral argument to admit it, but it seems clear we are the first court in the United States of America—a nation of over 300 million people—to allow a claim that “Wi-Fi can make you sick.” Up till now, the main published appellate opinion seems to have been the one where Judge Posner wrote that a `great deal of psychological distress is trivial—fear of black cats, for example.'”
“Millions use Wi-Fi. Merchants, employers, cafes, hotels—indeed, commercial concerns of every kind throughout the land have been installing Wi-Fi at an impressive pace. Nearly everyone wants the phenomenal convenience of the virtual world in your hand, everywhere you go, and the faster the better. All the potential defendants responding to this popular demand may take solemn note of news that, as of today, their Wi-Fi systems now may possibly invite costly litigation from members of the public who say that Wi-Fi made them sick. And potential plaintiffs and their counsel will have an interest too.
The law worries about junk science in the courtroom. One concern is that a partisan expert witness can bamboozle a jury with a commanding bearing, an engaging manner, and a theory that lacks respectable scientific support.”
“The partisan expert witness has enormous potential as a weapon of pure advocacy. Excellent trial lawyers know this potential. They risk disadvantage and even defeat if they do not wring every drop of advocacy power from their retained experts. In this process, the search for truth can suffer.”
“Experts with the proper attitude willingly deploy their potentially awesome experience and intelligence in the advocate’s service. The result is unlikely to involve lying or deception, if for no other reason than such conduct rarely survives cross-examination. The result is, however, likely to be highly partisan. And the highly partisan character of expert testimony can imperil the search for truth.
When one trial lawyer tells a colleague in an unguarded moment that the lawyer is “shopping for an expert,” we should reflect on how accurate this phrase truly is.”
Judge Wiley’s solution is for judges to select their own experts to explain scientific matters to the jury. There’s no reason they can’t do this, except for the fact lawyers on both sides absolutely hate it. Lawyers have their own superstitions and fears, the greatest being they must control every variable they can in a trial in order to get the result they want.
“Authentic and objective experts thus may be surprisingly affordable, given the scholarly world’s commitment to public service and the prestige and satisfaction that can flow from a judicial appointment like this,” the judge concludes. “And once you appoint that expert, it can be startling how fast the case settles.”