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California did it to felons: After a third felony conviction, it’s life in prison without parole. Three strikes, you’re out. Florida did it to physicians: After three adverse medical malpractice judgments, physicians cannot practice in Florida. Three strikes, you’re out. A similar rule should apply to expert witnesses in litigation: After three courts exclude a witness’s testimony as “junk science,” the witness should no longer be permitted to testify as an expert. Three strikes, you’re out. This rule would invigorate the effort to keep junk science out of the courtroom; it would bar the courthouse door to charlatans. Judges and juries would no longer be burdened with testimony from recidivist junk scientists. A Three Strikes rule would be efficient. Courts currently assess the validity of expert testimony on a witness-by-witness and case-by-case basis. Some witnesses, however, repeatedly proffer testimony that has no basis in science. Those witnesses should be excluded permanently, rather than allowed to testify repeatedly. Moreover, a rule that permanently excludes recidivist purveyors of junk science will make a witness’s credibility an asset worth protecting. When asked to testify, all expert witnesses would honestly assess the strength of the scientific evidence. They would agree to testify only in cases based in solid science. Lawyers pursuing preposterous cases would find that the well of malleable witnesses for hire had run dry. After an expert witness’s testimony had twice been excluded by judges, that witness would likely become particularly conscientious. Rather than risk losing the ability to testify in the future (which, for some witnesses, would require a career change), these testifiers would become very finicky. They would agree to testify only to legitimate science. As a vehicle for tort reform, applying Three Strikes to expert witnesses would be politically palatable. Unlike rules that seek to limit plaintiffs’ recoveries, this rule would apply equally to expert witnesses on both sides of lawsuits. Expert witnesses who provide junk testimony for the defense would face precisely the same threat of exclusion as expert witnesses for plaintiffs. Moreover, the Three Strikes rule offers a focused solution to the problems that plague the legal system. Tort reform that limits a plaintiff’s maximum recovery may, in some cases, unfairly restrict the damages awarded to a person who has suffered devastating injuries. A rule that excludes witnesses who have repeatedly proved untrustworthy poses no similar threat. So long as a plaintiff’s case is grounded in sound science, many witnesses will be willing to testify on the plaintiff’s behalf. The people threatened by the Three Strikes rule would not be litigants with legitimate cases, but witnesses for hire who repeatedly misstate science under oath. A rule that is aimed at witnesses, rather than categories of litigants, does not limit access to the courthouse — or to damages — to anyone. Enacting a Three Strikes rule will require some polishing of the details. What happens to expert witnesses whose testimony is stricken only in part? What if the expert’s testimony is stricken and the case then settles with no chance for appeal? Will a witness thrice stricken in one field of expertise be allowed to testify in a second field? Although reasonable minds can differ, legislatures are free to resolve these matters and then to act. Legislation implementing this rule can be adopted at either the federal or state level. It’s time to put an end to junk-science witnesses whose testimony has routinely been stricken by judges: Three strikes, you’re junked! Mark Herrmann is a partner in the Cleveland office of Jones Day, an adjunct professor of law at Case Western Reserve University School of Law and the author of “Statewide Coordinated Proceedings: State Court Analogues to the Federal MDL Process.” This article was originally published inThe National Law Journal, aRecorder affiliate based in New York City. • Practice Center articlesinform readers on developments in substantive law, practice issues or law firm management. Contact News Editor Candice McFarland with submissions or questions at [email protected]or go to www.therecorder.com/submissions.html.

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