published Wednesday, December 30th, 2009

Judge's handbook urges use of independent experts


by Monica Mercer

When a woman's family recently claimed she died because of an infection that emergency room doctors didn't treat in time, Hamilton County Circuit Court Judge Neil Thomas enlisted the help of an independent expert to review the facts.

That Kentucky-based doctor said the woman's death had nothing to do with an infection. It was a heart attack that resulted from known kidney problems, the doctor said.

The opinion gutted the case in spite of the plaintiffs' expert opinion that seemed to bolster it, Judge Thomas said. The plaintiffs voluntarily dropped the case soon after, he said.

Judge Thomas invoked a little-known rule that all trial judges across the nation have at their disposal: the ability to call independent experts to assess the credibility of complex civil lawsuits.

A handbook on the use of independent experts that Judge Thomas helped write will be published and distributed to trial judges nationwide by the first of the new year.

Advocates say the wider use of independent experts will reform lawsuit abuse one case at a time. It is more equitable, they say, than blanket legislation that has tried to reform litigation procedures with remedies such as putting caps on noneconomic damages. Such rules are made without regard to the circumstances of individual cases, they claim.

"(Using independent experts) is pure tort reform, because it goes to whether or not there is a basis for the lawsuit," Judge Thomas said. "(A judge) can go straight to the heart of the matter and ask, 'Is this phony baloney?'"

Despite the seeming effectiveness of the practice, there are only about 20 published cases across the country in which trial judges have used independent experts, records show. It still is not a regular practice in Hamilton County Circuit Court.

Some cases have credible experts on both sides of the fence with valid opinions, Judge Thomas said. In those cases, he noted, it is proper to let a jury decide which opinion is correct.

But Judge Thomas said that, more often than not, judges ignore the rule in cases where independent experts could lend a critical eye simply because of a lack of knowledge on how to use them.

The problem prompted him in early 2004 to spearhead the campaign to publish the handbook with guidelines on the use of independent experts. The handbook is supported by both the American Bar Association and the American Medical Association.

Past president of the ABA and former Detroit mayor Dennis Archer, who supported the handbook from the beginning, said it will peg Tennessee as the national model for more fairness at the trial court level.

"The (American Bar Association) had a desire for a fair trial for all litigants, both plaintiffs and defendants," Mr. Archer said, noting it is easier to reform litigation abuse through court rule than by legislation. "The question should always be: How do you litigate a case so that it always comes out correctly based on the facts and the law?"

Judge Thomas conceded plaintiffs' attorneys never have warmed up to the idea of using independent experts, partly because of the assumption that it possibly could help defendants skirt liability.

Chattanooga plaintiffs' attorney Andy Lewis said that 95 percent of civil lawsuits should not require independent experts if attorneys on both sides are doing their jobs.

"The goal is always the same," Mr. Lewis said. "It's to get good scientific evidence before a jury. A good lawyer should be able to show whether an expert is making up his own science or whether it's real."

But Judge Thomas said using independent experts has the potential to expose bogus defenses, as well.

"There will be no more pulling the wool over people's eyes," Judge Thomas said.

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