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The Matrimonial StrategistFeaturesFamily LawLitigationLJN Newsletters

Expert Witnesses: Observing the Limits of Expertise

By David A. Martindale

In 2013, Timothy M. Tippins, a member of this newsletter's Board of Editors, opined, in a New York Law Journal column, that there was an “urgent need for the legal system to impose mandatory and enforceable standards of performance upon those mental health professionals who offer potentially life-altering opinions in the custody court” (The Bar Won't Raise Itself: The Case for Evaluation Standards, July 8, 2013). A year later, writing again for the same ALM publication, Tippins opined that “[a]ll involved must be accountable, and accountability requires standards of performance” (Custody Evaluations: The Quest for Quality, July 3, 2014). Though these articles addressed the work of custody evaluators, life-altering opinions are also being offered by file reviewers (work product reviewers), some of whom seem to be oblivious to, or unconcerned about, the inherent limitations of a file reviewer's data.

In the relatively short period of time between 1993 and 1999, The Supreme Court of the United States addressed the issue of expert testimony in three cases. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the proffered (and rejected) expert opinion was that Bendectin, prescribed for the management of nausea and vomiting in pregnancy, was teratogenic. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), alleged workplace exposure to carcinogens was at issue, and, here too, proffered expert testimony was ruled inadmissible. Kumho Tire v. Carmichael, 526 U.S. 137 (1999), was a product liability case, and the product analysis conducted by the plaintiff's expert was deemed to be unreliable.

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