I have been called for jury duty three times in my life, but this is the first time I was actually picked for a trial. The case was a medical malpractice lawsuit that had been working its way through the courts for a dozen years, and the trial would last two weeks.
I really had no idea what to expect. The first thing that popped into my mind was the classic ‘12 Angry Men,’ and I wondered if I might end up being juror number 8 – the one who convinces everyone to change their minds about the outcome.

In this case, a family was seeking damages in the millions for their daughter who suffered a serious injury during birth in 2014. I found it surprising that a malpractice case had gotten this far, but once the trial began, I realized why.
For two weeks, we heard testimony from the family, doctors, nurses, and many experts. It was a complicated case with allegations of negligence, a difficult-to-prove charge, especially so far removed from the day it happened.
After the case, the judge told us the county is backed up with medical malpractice cases. Dozens of them.
I was curious and did a bit of research: About 85,000 malpractice claims are filed annually. Of those, roughly 7–8% go to trial, and defendants (doctors/hospitals) win the majority of cases that do go to trial – somewhere around 75–80% of the time. Plaintiffs tend to do better in settlements. Total payouts run roughly $4–5 billion per year across the country.
Many legal scholars and physicians argue the pre-trial filters are largely ineffective, that the certificate of merit requirement in particular has become a rubber stamp because plaintiff attorneys can always find an expert doctor willing to sign off.
During cross-examination, several experts testified that they charge as much as $750 per hour, spend roughly 20+ hours per case, get paid extra for trial appearances – like thousands extra – and some handled dozens of cases per year. I did the math on my juror notepad. The number I came up with for one expert was somewhere north of $2 million a year. Sitting there, I wondered if I was hearing real evidence or the opinions of a hired gun.
I wanted to know more, so after the case, I began researching. There’s a cottage industry of physicians and other medical professionals who earn substantial income – sometimes their primary income – by testifying as experts. A peer-reviewed article published in ScienceDirect states directly that the litigation climate “has spawned and generated a new and thriving cottage industry, the expert witness for hire,” noting that individuals advertise their credentials and opinions in law journals, hoping to attract cases and lucrative associations. On the money side, according to the R Street Institute, four hours of expert testimony per week could generate over $100,000 in income, and expert witnesses can earn between $500 and $1,500 per hour, according to SEAK Inc.
Medical societies have tried to police this with ethics guidelines, but enforcement is weak and inconsistent. The AMA Code of Medical Ethics Opinion 9.07 states that physicians cannot allow financial concerns to influence the nature of testimony and calls on medical professional societies and state licensing boards to sanction those who give false or misleading testimony. But the enforcement reality is telling: there is an ethical conflict for professional associations that discipline their members, as such associations are charged with ensuring their members’ competence, yet also advocate for constituents who want to protect them from lawsuits. A real case illustrates the gap: in 2002, the North Carolina Medical Board disciplined a surgeon by revoking his medical license for giving improper expert witness testimony, but on appeal, the state supreme court reversed the decision on the grounds that the expert had rendered his opinions in good faith.
The legal standard for expert testimony, the Daubert standard federally (with state variations), is supposed to filter out junk science, but judges are generalists who often lack the technical background to critically evaluate competing medical opinions. A peer-reviewed study published on PubMed found that about half of all judges have had no formal education in handling scientific evidence, yet 91% felt comfortable in their gatekeeper role. That contrast alone is damning. Under Daubert, the responsibility for assessing scientific acceptability in U.S. courts has shifted from expert witnesses to judges, who are usually without scientific training.
As long as an expert has credentials and a plausible-sounding theory, it usually gets in front of the jury. The Florida Bar Journal notes that a review of case law after Daubert shows that rejection of expert testimony is the exception rather than the rule, and that exclusion is viewed as a drastic remedy to be invoked only under the most compelling circumstances. A 1998 article in the Fordham Urban Law Journal concluded that junk science in the courtroom “emanates from testimony by expert witnesses hired not for their scientific expertise, but for their willingness, for a price, to say whatever is needed to make the client’s case.”
In some respects, a medical malpractice trial can come down to which experts are more believable to the jury. The verdict in these cases impacts the lives of both the plaintiff and the defendant. And when faced with a competing chorus of credentialed opinions, it’s very hard to determine the truth.
There’s a line in “12 Angry Men” where Henry Fonda’s character says, “It’s always difficult to keep personal prejudice out of a thing like this. And wherever you run into it, prejudice always obscures the truth. I don’t really know what the truth is. I don’t suppose anybody will ever really know… No jury can declare a man guilty unless it’s sure.”
While that story was about a murder, I came away with the same feeling after this trial. Like the movie, my jury also found for the defendants.
Perhaps the question isn’t whether juries can handle the truth. It’s whether the system is designed to deliver it.
References
Cottage industry / expert witness for hire ScienceDirect — Expert Witness Testimony: An Update https://www.sciencedirect.com/science/article/abs/pii/S0733861905701390 (Note: this page is paywalled but the link is valid and the citation is legitimate)
Expert witness earnings / hourly rates R Street Institute — The Perils of Junk Science in the Courtroom https://www.rstreet.org/commentary/the-perils-of-junk-science-in-the-courtroom/
AMA ethics code / enforcement conflict AMA Journal of Ethics — Ethical Challenges for the Medical Expert Witness https://journalofethics.ama-assn.org/article/ethical-challenges-medical-expert-witness/2016-03
North Carolina license revocation case / enforcement gap PubMed/NIH — The Expert Witness in Medical Malpractice Litigation https://pmc.ncbi.nlm.nih.gov/articles/PMC2628518/
Judges lacking scientific training / Daubert gap PubMed/NIH — Black Robes and White Coats: Daubert Standard and Medical Expert Witnesses https://pmc.ncbi.nlm.nih.gov/articles/PMC11471272/
Rejection of testimony is the exception / Daubert in practice Florida Bar Journal — The Daubert Expert Standard: A Primer https://www.floridabar.org/the-florida-bar-journal/the-daubert-expert-standard-a-primer-for-florida-judges-and-lawyers/
Fordham Urban Law Journal / hired for willingness to say anything The direct Fordham quote is cited within the R Street piece above with a link to the original: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1978&context=ulj
