Concussion lawsuit creates potential conflict of interest

Getty Images

There’s a common belief that the pending concussion litigation against the NFL ultimately will result only in the lawyers making money.

The so-called expert witnesses likely will, too.

Often overlooked in complex litigation involving esoteric medical knowledge and jargon is the fact that the men and women who have the education and experience to share that knowledge and jargon with a judge and a jury get paid a lot of money.

That reality routinely results in a blurring of ethical lines.  According to Steve Fainaru and Mark Fainaru-Wada of, Dr. Robert Cantu previously served as a senior adviser to the NFL’s Head, Neck and Spine committee — but he also has consulted with the lawyers who are suing the NFL on behalf of thousands of former players.

“It was an informational session, just like I get paid to give a talk someplace else,” Cantu said of a February 2012 presentation to the lawyers representing the players.  He also justified working for the players suing the league by explaining that the NFL could hire him to serve as an expert witness, which would block from him talking to those suing the league.

“If [the NFL] wanted to put me on their payroll, to defend their case, then I’m not gonna say boo about those issues [to the plaintiffs],” said Cantu, who gets $800 per hour for legal services, $5,000 for depositions, and $8,000 per day for trial testimony.

Cantu’s attitude underscores one of the biggest problems with the litigation industry.  Many experts aren’t necessarily motivated by the pursuit of justice but by the supplementation of their total income with the exorbitant fees they charge.  And since there’s plenty of discretion to be exercised when telling the truth, their testimony often can be molded to help whichever side of a case hires them first.

Here’s a concrete example, for those of you who are still awake.

Eleven years ago, I represented a former employee of a major U.S. low-cost big-box retailer who had been forced to take an alcohol test under circumstances that, as the jury concluded, didn’t justify an invasion of the employee’s privacy rights via the drawing of a blood sample.  The case included testimony from an expert witness who had been hired by the employer to justify the conclusion, based on the blood-alcohol concentration measured by the test, that the employee had indeed been intoxicated at work.

On cross-examination, I confronted the expert witness with a passage from a written report on the issue of blood-alcohol testing.  In the report, the author expressed concern about the reliability of efforts to use blood-alcohol measurements to determine a person’s BAC at an earlier point in time.

I read the sentence to the expert witness, and I asked the expert witness if he agreed with the statement.

He said, “No.”

So I read it to him again, slowly.  I asked him if he agreed with that statement.

Again, he said, “No.”

So I handed him the report, showed him the first page of it, and asked him to tell the judge and the jury who had written the report.

The expert witness, after taking a gulp, said his own name.

And that’s pretty much all I ever needed to know about the world of expert witnesses.

20 responses to “Concussion lawsuit creates potential conflict of interest

  1. One only needs to watch the Jodi Arias murder trial on TV to know what hired guns can conjure up and testify to.

  2. Expert witness shopping, Judge shopping, Jury shopping. It’s been going on forever.The American legal system needs serious fixing. I know you will shudder to hear these words lawyers. “Tort Reform.” If you bring a really outrageous lawsuit, when it gets thrown out of court the Plaintiff has to pay for the Defendants lawyer. Simple. This would unclog the court system. I can’t believe these players suing for injuries when they knew they could receive any injury working at this sport. It is NOT the same as workers compensation in my view. The risk should be anticipated by the players. I will be surprised if you print this comment.

  3. It’s the same in any field of endeavor. The old saying is right–“Where you stand depends on where you sit.”

    I can think of no area where this applies more than the courts of law. Lawyers, even more than “expert” and actual expert witnesses, are the biggest practitioners of what is often called “the oldest profession”.

    We are all for sale. The difference between most of us and lawyers, “experts”, and such is that our price is higher. We are not lawyers; we have standards.

  4. So Florio…. you obviously did your homework on that ‘expert’ witness and vetted his past writing enough to catch that passage/report.

    Would you say that the opposing counsel was wrong not to catch that same passage/report written by their own witness? Or that they probably knew about it and just hoped it wouldn’t be noticed?

  5. Two people haunt my memories. I haven’t retired officially but nobody wants me. Why? These two “journalists” ruined my professional career! How dare Steve Fainaru and Mark Fainaru-Wada try to shed light on something else!

    Barry Bonds

  6. Nice –

    I like how the relevant part of the story at the beginning was boring and the irrelevant part at the end was entertaining.

  7. I got it! Joe Pesci was based on Mike Florio! How did we miss this! The shower picture, his ability to find collusion when it’s not there, and the hair piece. All Florio needs to do is, where a leather jacket on his PFT videos. Marisa Tomei (sp) is so fricken hot though.

  8. Definition of a damn shame:
    A bus full of lawyers and expert witnesses goes off a cliff…with two empty seats.

  9. Nothing like a bunch of blood sucking lawyers and ‘experts’ to chase any dollar they can get their eyes on.

  10. So experts should work for free in the “pursuit of justice” while the attorneys pocket millions?

  11. @wrenches2pipes
    “tort reform” are the ugliest two words in our justice system. You got it all wrong bud. If the problem with our system is that the amount of money you have is the key determination of the justice you get, then your example would kill justice for anyone who doesnt have money.

    For example, lets say that a multi-billion dollar corporation decides its more economically feasible to not put in a safety device into one of their products, even though they know that not doing so will maim or kill consumers. Instead they determine the lawsuits they incur would cost less than to make a reliable product.

    Now, joe shmo goes out and buys the product–loses his arm. Under your proposition, he would have to cover the team of attorneys, experts, etc that the company would throw at him in the event he loses the case. Also, he is already against the odds because he can’t afford the same legal representation as the defendant.

    If a judge finds the case without merit–he throws it out. “tort reform” sounds like a cool word, but all of the aims of tort reforms (caps, penalties, etc) are made to help those being sued. Trust me though, if it occurs and you are in the unfortunate situation where you are the injured party—you will understand the true meaning of injustice.

  12. The U.S. tort system has been totally corrupted by the trial attorneys. Civil cases are no longer about justice, only lining the pockets of the attorneys. None of them will take a contingency case unless they think they will win a fat judgement. Everyone else twists in the wind.

  13. I think if tort reform was simply capping payouts to attorneys it would go a long way. I don’t know what you do to keep a billion-dollar company’s expensive attorney from blowing out the attorney you could hire with a capped payment. Maybe just make all lawyers salaried, public employees, since their job is leaching off of the government anyway.

Leave a Reply

You must be logged in to leave a comment. Not a member? Register now!