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When Illinois Federal Judge Michael Mihm was faced with highly technical evidence and conflicting economic experts in the largest antitrust case of his career, he tried something new. The judge from Illinois’ central district hired a scientific expert of his own. He turned to the American Association for the Advancement of Science, a Washington-based nonprofit science organization that started a project four years ago to provide federal judges with experts. What has been used by federal judges for three years is now spreading further, said Deborah Runkle, project manager for the association’s service, called Court-Appointed Scientific Experts, or CASE. CASE took its first request from a state court last month. The project also recently expanded to include administrative law courts, supplying names of experts after a request from the U.S. Department of Health and Human Services, Runkle said. “We’re here for those instances where a judge feels that an expert would help, when they don’t understand the issue because it’s so highly technical,” Runkle said. “They feel that it’s so complicated, they need their own expert. It’s very hard for judges to decide between two competing experts.” But some attorneys are concerned about the independence of the experts provided to judges, as well as the inability of counsel on either side to cross-examine them. The general goal of the project is to provide an objective opinion on technical issues to help a judge in a case. Runkle said that their experts are never asked to look at records, but rather to explain technical issues for the judge. They do not provide experts for counsel. Around 20 federal courts across the country have used CASE’s services, including courts in California, Louisiana, Illinois, Michigan, New York, Texas and Virginia over the past three years. CASE does not maintain a roster of experts, but tailors the needs of each judge, depending on the circumstances of the case, Runkle said. They frequently look for experts through other scientific societies. The case before Judge Mihm involved high fructose corn syrup, and had been sent back to Mihm from the 7th U.S. Circuit Court of Appeals in 2003. On advice from the circuit court, Mihm sought out help to decipher the facts. “Now that I’ve been through that experience, I think it was a very positive experience,” said Mihm, who needed an expert in In re High Fructose Corn Syrup Antitrust Litigation, 303 F. Supp. 2d 971 (2004). “I would certainly be much more open to doing it on my own, without the court of appeals suggesting it.” Mihm added that “[t]here was a very heavy battle of the experts. I think what prompted [7th Circuit] Judge [Richard] Posner to suggest this was because of the complexities involved that these are difficult concepts to understand . . . and it might be good for the jury to hear input from someone who was not an advocate in the case.” A jury could hear the input from the scientific expert if the judge chose to divulge that information. The defense settled for $400 million in mid-2004. Critics’ concerns Opponents allege that scientific experts are never objective and it becomes another cost the plaintiffs often have to bear. “[CASE] is a bad idea,” said Robert Peck, the president of the Center for Constitutional Litigation, a small Washington-based, pro-civil liberties law firm that opposes tort reform. “The difficulty is that it is impossible to find experts who are knowledgeable about a subject enough to guide a judge who [has] not yet taken a position on the issue that is coming before the court,” Peck said. “Most researchers rely on corporate largess for their funding, and they will tend to testify [in favor of the corporate viewpoint]. They are not the independent researchers that this project anticipates.” Mihm said that Peck’s concern was valid, but that he felt that the expert which CASE supplied him with was impartial. “He understood his role,” Mihm said. “He was really the court’s expert instead of being an advocate for either side.” Peck also pointed out that it becomes another cost the plaintiffs have to bear. “The cost to a plaintiff becomes very prohibitive,” he said. “You not only have to pay for your own experts, but you have to pay for another expert, which becomes very costly. The plaintiffs are not the ones with deep pockets.” Both parties pay, Runkle said. Peck was also concerned about the opportunity for both counsel to cross-examine the court-appointed expert. According to Runkle, most of the experts that they’ve supplied have been subject to cross-examination, but that is the judge’s decision. Mihm said that he was careful to provide all information about the expert to both counsel. He even appointed a lawyer to represent him.

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