July 16, 2019

Mental Health Experts and the Look of Science

Dr-JohnBy John A. Zervopoulos, Ph.D., J.D., ABPP

Do you know what science looks like?—a key Daubert/Shreck-era question for mental health experts. Statistics? Publications? A body of facts? Don’t view these badges as proofs of science. Instead, step back and view science as a mindset, a way of doing critical thinking—how one assesses which ideas are reasonable and which are not. A basic question highlights the scientific inquiry: “How do you know what you say you know?”

Too often we mistakenly accept imposters of science. Daubert caselaw, addressing this problem, stresses that courts must look past the badges of science to determine whether to trust the expert’s testimony. For example, pronouncements from experts with sterling qualifications don’t by themselves certify the testimony as trustworthy. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999). Publication—one element of peer review—is not a sine qua non of admissibility; it does not necessarily correlate with reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993). General acceptance does not help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology. Kumho Tire Co., 526 U.S. at 151.

The late physicist Richard Feynman told a classic tale, Cargo Cult Science, to analogize how some people use the look of science to try to emulate real science. He described a group of South Sea people who had seen airplanes deliver cargos of goods and materials to their islands during World War II. After the War, these islanders wanted the imports to continue—but the pilots had gone home. So, the islanders set out to re-create the setting: They made runways; a hut for a man, the controller, to sit in; two bamboo pieces as antennae for the man to strap to his head. Then everyone waited for airplanes to land. The islanders, from their view, did everything right. The form seemed perfect, but no airplanes landed. The islanders were missing something essential.

Feynman’s point—and Daubert’s: Mental health experts, like the islanders, sometimes highlight badges of science to prove their testimony but neglect to exercise the essential critical thinking that science and caselaw require. Ask, “How do you know what you say you know?”—repeatedly, if necessary—to expose the bases of mental health testimony. Cargo cult science or critical thinking-based science?

John A. Zervopoulos, Ph.D., J.D., ABPP is a forensic psychologist and lawyer who directs PsychologyLaw Partners, a forensic consulting service providing consultation to lawyers on psychology-related issues, materials, and testimony. His second book, How to Examine Mental Health Experts: A Family Lawyer’s Guide to Issues and Strategies, is newly published by the American Bar Assn. He is online at www.psychologylawpartners.com and can be contacted at 972-458-8007 or at jzerv@psychologylawpartners.com.


CLE Program: How to Examine Mental Health Experts: A Practical Plan

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