Court Appointed Experts in the Breast Implant Litigation: Current Developments and Historical Bases

Abstract

Recently, in the multidistrict breast implant litigation, Judge Pointer entered a series of orders relating to the establishment of a Federal Evidence Rule 706 science panel. In re: Silicone Gel Breast Implant Products Liability Litigation, MDL 926, CV92-P-10000-S (N.D. Ala.). Judge Pointer's Order No. 31 specifies that appointments are to be made on a national basis for potential use in all federal courts and as permitted in state courts. Federal Evidence Rule 706 gives a district court the authority to appoint experts to provide helpful testimony. The policy justification behind Rule 706 is to guarantee that the trier of fact has access to impartial experts. The parties to the litigation, however, must be informed of the court appointed experts' opinions in advance and be given the opportunity to depose and cross-examine any expert. Once those requirements are satisfied, all other aspects of appointing the experts are left to the sound discretion of the trial judge. In fact, bias or qualification of experts may not be considered when the Court appoints experts. Bias or qualification may affect not only the weight of the experts' opinions but also the admissibility of their testimony. Parties confronted with harmful testimony presented by court appointed experts may want to challenge the admissibility of that testimony. This is particularly true in multidistrict proceedings where the opinions issued by a science panel could affect multiple cases. Although Rule 706 has notbeen used with any frequency in the past, that could be changing as Rule 706 and court appointed experts are playing important roles in a number of recent high profile cases. Furthermore, when used properly Rule 706 poses little threat to the American trial system and the adversarial process. This article discusses Federal Evidence Rule 706, its history and structure, and several recent cases involving court appointed experts to demonstrate the development and impact that experts, particularly scientific experts, are having in modern courts.