When Experts Disagree, Focus on the Facts

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The recent Senate hearings into the General Motors ignition switch recall have highlighted an issue which regularly impacts lawsuits, but rarely gets the attention it deserves. That issue is whether some expert witnesses actually take seriously their oath to tell “the truth, the whole truth and nothing but the truth.”  The sad fact is that too many people, particularly supposed “experts,” are all too willing to bend the truth, perhaps even perjure themselves, when they believe it will benefit their case of the case of the person who hired them. Experts are frequently hired guns, seemingly willing to say anything simply to avoid their rightful obligations or to win a case.  Senator Claire McCaskill from Missouri effectively drove that point home when she confronted GM Chairwoman Mary Barra about the testimony given by GM’s chief engineer in a Georgia  wrongful death lawsuit.

The issue in the Georgia case (Melton v. General Motors) was whether the ignition switch had been surreptitiously redesigned. Obviously if there had been a redesign the lawyers for the plaintiffs were interested in when and why there had been a redesign because that would show the timing and the extent of the company’s knowledge of this problem.  The lawyers representing the Melton family in the lawsuit had  collected multiple ignition switches. While all of the ignition switches had the same part number, there were two distinct and separate designs. It is a violation of proper engineering practices to have two designs bearing the same part number, and the Meltons wanted an explanation.

During the deposition of the chief engineer in charge of GM’s ignition switches, the Meltons’ attorney asked directly whether the engineer had signed a work order or a change authorization to approve the redesign of the ignition switch, since the parts clearly demonstrated that a redesign had occurred. The engineer in the deposition denied ever having signed such an order, but acknowledged that such an order would have been required under the engineering change system. Moreover the engineer denied having had any awareness that the original design ignition switch could be toggled into the “accessory” position while the vehicle was running, cutting the power to  the electrical system, including to the airbags. This was a clear effort to deny knowledge of this deadly problem, which GM apparently had quietly sought to fix.

Senator McCaskill confronted Ms. Barra with a work order, signed in 2006 by the very same engineer approving the design change. To Senator McCaskill, it was evidence suggesting that the engineer may have repeatedly committed perjury when he denied the existence of such an order in his deposition.

Those of us who fight these battles in trials repeatedly encounter this sort of deliberate misrepresentation of the facts. Unfortunately dramatic evidence like this signed document is rarely available to conclusively impeach these witnesses. Instead, attorneys have to establish that the witness is being untruthful through careful and thorough cross examination, so that the jury comes to appreciate where the truth really lies.

Jurors should not blindly assume that expert witnesses are credible simply because of where they work, or the impressive titles and positions they hold. As this episode shows, it is vitally important that jurors pay close attention to the details of the event if they are to discover the truth of the matter. In this case there were undeniably two separate and distinct designs of the ignition switch, as well as a document establishing when that change had been implemented, yet GM never provided this vital proof, nor did the “expert” have any recollection of having signed it. Such things don’t just happen – one could reasonably conclude that those who were responsible had tried to mask the change by redesigning the part but keeping the same part number.   Such a conclusion could well be bolstered by the inability to produce the change order that normally is required before any such change is implemented.

A U.S. Senator had no trouble assessing what was going on.   Jurors should use the same sort of discerning skepticism when they assess the testimony of supposed “experts” because that is clearly needed to identify to identify the truth.

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