As we have written before, it is becoming increasingly necessary that plaintiff’s counsel be prepared to attack the veracity and credibility of so-called “independent” experts in personal injury cases. Insurance companies and defense law firms routinely retain medical “experts” to testify that plaintiffs are not injured at all or have only suffered minor injuries. They do this by examining diagnostic tests and/or by offering testimony that the test results do not substantiate a traumatic injury. Such testimony can be extremely misleading because oftentimes a clinical diagnosis made by a treating physician is much more reliable than a so-called independent review by someone who has never seen the plaintiff much less examined them. Nonetheless, such testimony is dangerous and can often be effective if the witness offering the testimony has a good medical pedigree, as they often do, and presents a good appearance before the jury. This makes the cynical use of so-called experts extremely dangerous because by paying a fee for the so-called “independent” opinion, the jury can be mislead and an innocent victim of a negligent act can be victimized again and denied the right to fair and reasonable compensation for their injuries.
“Independent” experts oftentimes testify in back injury cases as an example of this problem. They testify that an examination of radiological films proves to them that the “back injured” claimant was not injured at all. Many experts will testify that herniated discs in a back cannot be caused by trauma or that trauma did not cause the injury complained of, etc. Such testimony is tantamount to junk science and is completely unreliable but the problem is that many jurors do not recognize this. Jurors receive sworn testimony and based on their lack of medical training actually oftentimes believe that the so-called “independent expert” is, in fact, independent when nothing could further from the truth. Thus, to be effective in representing a personal injury claimant with a bad back or neck case, the best way to go about doing so is to attack the so-called independence of the expert. Many of these witnesses receive hundreds of thousands of dollars in compensation each year from the insurance industry because they know where there bread is buttered and they know what is expected of them, which is to testify that the claimant is not injured and/or that they are malingering. This cynical approach to dispensing justice in a personal injury context is disheartening, frustrating and at times exasperating but, nonetheless, it is part and parcel of the landscape in our society. All one can do is fight against it and hope that fair and impartial jurors will see through such cynicism and will disregard the testimony of junk science experts who, for their own secondary gain, perniciously seek to influence their verdicts.
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