The Problem of Biased Experts, and Blinding as a Solution: A Response to Professor Gelbach

Abstract

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.

Keywords: expert witnesses, expert mining, expert bias, conditional-disclosure, blinding