Thursday, September 04, 2003

All The Experts Money Can Buy

A colleague provided me with this article by and interview with confessed serial corporate “expert witness” Steven Moss where Moss admits to being part of a group of highly paid “expert witnesses who who are hired and paid by one side in a case, and get compensated for saying what the lawyers want to hear.”
The lawyers invite potential witnesses to their offices for interviews and pepper them with questions, but the question they care most about is "Can you prove my case?"

With such a big paycheck on the line, it's easy to find yourself looking for ways to answer "yes." The expert's thought process goes something like this: In most cases, both sides have experts, so it's perfectly ethical for me to focus on demonstrating that my client is right and that the opposition is wrong. After all, the opposing side will have an expert to do the same, and everything will balance out.

Once you start thinking this way, it's easy for an expert, his training in the scientific method of inquiry notwithstanding, to drift further and further away from analytic neutrality. No one is lying, exactly, but this isn't a search for truth.
I had seen this article a while back (the article was written in March), but someone recently informed me that Moss was principal investigator for M.Cubed, the California based consulting group that wrote the critique of the proposed Washington State ergonomics rule that estimated that it would cost the state's employers $725 million a year.

Now why do I find this article upsetting? I mean, any of us who have lived through the process of an OSHA regulation becoming law recognize these guys. We have suffered numerous musculoskeletal disorders as a result of repetitively shaking our heads, rolling our eyes, and raising our dropped jaws every time we heard these flacks lie and distort the scientific evidence and workers' actual experiences. And then they accuse us of using “junk science.”

Moss justified his actions for a while by reasoning that both sides had their experts, so they balanced each other out. The problem, as he admits, was that
It almost never does. And for a couple of reasons. One is one expert is almost always better than the other. And so, in our society economic power tends to get that expert. So it's to the highest bidder. Not always, but often
It is true that the huge amount of money that the industry spends on "expert" witnesses is a problem, but not always because of the quality of the opposing experts.

During the OSHA’s ergonomics hearings in 2000, OSHA had its own experts (these were real experts), generally from universities around the country, most of whom had done the original research on which the ergonomics proposal was based. They were willing to offer their services, but they were not well funded enough to spend their own time and money writing testimony for the hearings or traveling to Washington to testify. Nor did anyone expect it to be a fun experience. Unlike court hearings, in administrative hearings anyone who signs up to testify can question any witness. Most of the OSHA witnesses knew that they would be up against the best attorneys and "expert witnesses" that corporate America could buy.

OSHA, as it had done throughout its history, provided a stipend and expenses to those who were willing to be experts. Needless to say, the money they received was nowhere near the sums that the industry experts received.

Nevertheless, the industry representatives cried foul all the way to their Republican friends in Congress who were shocked, SHOCKED! that OSHA had used tax dollars to buy "hired guns" and screamed that these amounted to procedural crimes that were alone worthy of scuttling the entire ergonomics standard. As the witch-hunt grew, Republican congressional staff began harassing OSHA’s witnesses about whether or not they were coached and demanded to inspect the e-mail on their personal computers. (Several told me later that they’d think twice about ever agreeing to testify for OSHA again.) These same arguments about OSHA improperly using witnesses came up again on the floor of Congress during the “debate” on repeal of the standard.

According to a report by Congressman Henry Waxman (D-CA), one witness, Dr. Laura Punnett, an ergonomics expert and professor at the University of Massachusetts at Lowell, was rejected by the Bush Administration as a witness on NIOSH's study section that provides peer review of applications for research grants to study workplace injuries. She had been nominated by the Director of NIOSH. Dr. Punnett said upon her rejection, "I think it conveys very powerfully that part of the goal is to intimidate researchers and limit what research questions are asked.”

I guess it’s OK for the industry to spend unlimited amounts of money trashing protections for workers, but not OK for the federal government to spend any money justifying its proposals.

But the problem of unequal resources is even worse than that. While intimidating OSHA's witnesses, industry can – and did during the ergonomics hearings -- bring dozens of highly paid experts in from around the world to testify in Washington against worker protections.

Aside from OSHA’s witnesses, the workers’ side was represented by the unions who have a shockingly small number of overworked and underpaid staff who do the research, write the briefs and testimony, organize and pay for injured workers to come to OSHA to testify, show up for weeks of hearings to cross examine the industry “experts” – while at the same time almost single-handedly running their unions’ health and safety programs.

The money that the industry opponents to regulations have access to not only skews the regulatory hearings, but warps the entire policy process by (mis)informing Congress and the media about the facts. And if the lies about "junk science" and bankrupted industies don’t work, they’ve even had some success falling back on the argument that we can’t issue such a bit regulation because there’s too much controversy and not enough consensus – when their money is what’s creating the controversy and lack of consensus in the first place.

Steven Moss has made his confession and said publicly that he’s sorry. Today he spends most of his time “trying to reduce the pollution from power plants in low-income communities in San Francisco."

That’s nice. Really.

But his past actions and the vast number of his co-conspirators means that hundreds of thousands of American workers continue to suffering preventable musculoskeletal injuries. What we have here is not just a bunch of morally challenged "experts," but corruption of the entire public policy process by corporate money.

And their crimes are not just limited to OSHA regulations. Highly paid “expert witnesses" also influence wrongful-death cases; medical malpractice suits, legislative hearings, environmental regulations, utility rates and many more of the issues that are supposed to be addressed through some kind of open, democratic process.

Maybe in addition to campaign finance reform, we need regulatory finance reform: at very least revealing how much “expert witnesses” are paid before they are allowed to testify.