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Summary. In a recent symposium article (Expert Mining and Required Disclosure, 81 U Chi. L. Rev. 131 (2014)), Professor Jonah Gelbach discusses the problem that a litigant in the American adversarial system can consult multiple expert witnesses on a given question but only disclose the single most favorable opinion to the fact finder (a jury, judge, or arbitrator). He calls this the problem of “expert mining.” In particular, Gelbach considers whether a policy that requires litigants to disclose to the fact finder the number of experts that they consulted might be a satisfactory solution to the problem. Alternatively, Gelbach considers whether an even more radical change to the American litigation system — the exclusion of all expert opinions rendered after the first one — might be necessary. In doing so, Gelbach extensively discusses my own work on this problem and the third solution I developed in a 2010 article, Blind Expertise, 85 NYU L. Rev. 174 (2010). There, I show that expert mining is one part of a broader problem of expert bias, and I propose a conditional-disclosure rule as the solution. This Essay provides some analysis of Gelbach’s framing of the problem, reviews the blinding proposal, and identifies the limits of Gelbach’s analyses.
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Summary. Like all physicians, radiologists in the United States are subject to frequent and costly medical malpractice claims. Legal scholars and physicians concur that the US civil justice system is neither precise nor accurate in determining whether malpractice has truly occurred in cases in which claims are made. Sometimes, this inaccuracy is driven by biases inherent in medical expert-witness opinions. For example, expert-witness testimony involving "missed" radiology findings can be negatively affected by several cognitive biases, such as contextual bias, hindsight bias, and outcome bias. Biases inherent in the US legal system, such as selection bias, compensation bias, and affiliation bias, also play important roles. Fortunately, many of these biases can be significantly mitigated or eliminated through the use of appropriate blinding techniques. This paper reviews the major works on expert-witness blinding in the legal scholarship and the radiology professional literature. Its purpose is to acquaint the reader with the evidence that unblinded expert-witness testimony is tainted by multiple sources of bias and to examine proposed strategies for addressing these biases through blinding.
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