Expert Witnesses: Observing the Limits of Expertise

In 2014, in a New York custody case, M.M. v. L.M., WL 1010258, N.Y.S., Judge Lori S. Sattler, offering her perspective on work product reviews, wrote: “The role of an expert conducting a peer review is to determine whether the methodology used in a forensic evaluation comports with professional standards such as those set forth in the Model Standards of Practice for Child Custody Evaluation as approved by the Association of Family and Conciliation Courts (AFCC).” Id. at 10. Judge Sattler added that a report that provides “a substitute forensic evaluation for the one conducted by the court-appointed expert … must be rejected as a peer review.” Id. I have previously opined that “[a]ppropriate testimony from work product reviewers can be of significant benefit to courts. Even the most effective cross-examination cannot provide the substantive contribution to the record that is provided by well-articulated testimony from a reviewer.” Martindale, D.A. (2015), Commentary on work product review testimony, AFCC eNews, 10:6.

Though data are not available, it appears that where the issues before the court are atypically emotional and contentious, the likelihood increases that testimony will be offered by reviewers either critical of or supportive of evaluators' work. This article focuses on the involvement of reviewers in cases where intensely emotional allegations of parental alienation are the focus of attention.

Research and Marketing

In July, 2014, Newsweek published an article headlined “Parental Alienation Syndrome Isn't in the DSM Yet, But It's in Plenty of Arguments.” More than two years later, that statement remains accurate. Significant contributions to our understanding of alienation have been made by several knowledgeable and dispassionate writers. An incomplete list includes Nicholas Bala, Leslie Drozd, Barbara Jo Fidler, Steven Friedlander, Benjamin Garber, Janet Johnston, Joan Kelly, Nancy Olesen, Michael Saini, and Marjorie Gans Walters. A search for any of these writers is likely to yield several illuminating articles. In their discussions of the causes of alienation, each of these writers has alluded to multiple causes. Drozd has stated: “The source of difficulty is rarely simple or singular.” Garber has pointed out that “parental alienation is seldom exclusively the result of one parent's malicious actions.” In discussing intervention, Saini, Johnston, Fidler and Bala have written: “[T]here is insufficient research evidence as to what [mode of intervention] works best for which [alienation] cases.”

It is regrettable that the persuasive writings of those who advocate for careful assessments and who urge professionals in the mental health fields and in law not to artificially simplify complex family dynamics do not deter the charlatans. The very complexity of alienation attracts the profiteers who are selling spurious simplicity.

Just as Harold Hill found his way to River City in “The Music Man,” self-proclaimed experts, some of whom mendaciously market themselves as researchers, have found their way to the courthouses in which accusations and denials relating to alienation are being registered. In many cases, the self-described experts provide opinions concerning the psychological characteristics of individuals whom they have never evaluated, and, like TV pitchmen offering two-for-one sales, will add intervention recommendations.

The opinions that can responsibly be formulated on the basis of work product reviews are opinions concerning the quality of the work that was reviewed. In the minds of some judges, when case-specific recommendations are offered by file reviewers, the reasons not to be guided by those recommendations are clear. Refer, for example, to Pollock v. Pollock, 2011 WL 589593 (N.J.Super.A.D.).

In Pollock, the Appellate Division of the Superior Court of New Jersey cited the trial judge's conclusion that, notwithstanding a file reviewer's statement that Mr. Pollock had employed “known strategies” to estrange the children from their mother (Id. at 2), Mrs. Pollock “advanced no evidence showing that [Mr. Pollock] acted inappropriately… .” (Id. at 4). When courts are guided by experts who display intellectual flaccidity, ignorance of basic research principles, and audacious dismissal of the precept that even experts cannot responsibly offer opinions regarding individuals whom they have not evaluated, families must bear the consequences.

The “known strategies” alluded to by the reviewer in the Pollock case became known to her on the basis of interviews conducted with 40 individuals whose mean age was 40 and who had allegedly experienced alienation during their childhood. They were asked to “catalog all of the different strategies used by the alienating parent and to provide examples of each.” The research value of information secured through interviews is entirely dependent on the methodological integrity of the procedures employed in recruiting interviewees, posing the questions, and analyzing the statements made. Stories are not magically transformed into research data simply because they have been collected by individuals who describe themselves as researchers.

Individuals who recruit adults to share their memories of childhood events should be aware that memories are not reproductions of past events; they are reconstructions of past events. This is because: 1) Events occurring prior to and subsequent to events that are the subject of an investigator's inquiry will have affected the accuracy of the individual's initial perception of the event and the manner in which the perception was processed and stored; 2) People's backgrounds affect the manner in which events are categorized and stored; 3) Iconic (visual) memories are processed differently from echoic (auditory) memories; and 4) Some techniques employed by interviewers as they endeavor to assist interviewees in retrieving memories increase the probability that the retrieved memories will be inaccurate. In the mid-1970s, Elizabeth Loftus and colleagues conducted a series of experiments in which it was demonstrated that even when adults are asked questions about a recently witnessed event, the manner in which the questions are worded can significantly influence the responses to the inquiries.

It takes little effort to assert that one is a researcher. Greater effort is required to master the intricacies of research design, and to conduct research in a manner that produces reliable conclusions that will withstand reasonable scrutiny. There is reason for concern that many cross-examining attorneys lack the knowledge that would be needed to formulate questions the responses to which might reveal significant methodological flaws. Similarly, there is reason for concern that many judges lack the training to enable them to distinguish between reliable conclusions and their distant, ersatz cousins.

Assigning New Terms To Established Principles

Some entrepreneurial experts proudly assert that they have examined the development of alienation by conducting what they refer to as “causal analyses.” Assertions that one is an inventor are not supported by re-naming the wheel a “circular transportation device.” The attachment of a new name to an established idea may suggest marketing creativity, but it does not constitute evidence of skills in research, diagnosis, treatment planning or clinical intervention.

The health fields have appreciated the importance of etiology since the 1950s. In the DSM-5, the discussion of each disorder includes a section that is headed “Development and Course.” In that section, etiology, duration and current manifestations (including information relating to the frequency of symptoms and the severity with which well-described symptoms are manifested) are addressed.

Where there is alienation, assertions by mental health professionals that causal analyses will enable them to identify “those who have been victimized” are both senseless and pernicious. When retained experts proclaim that one member of a dysfunctional family bears no responsibility for the problems that have been put before a court, it is far more likely than not that such statements reflect retention bias, and do not provide assistance to judges struggling to understand complex situations.

Intervention

In addition to exceeding the limitations of reliable research and the available data in the specific case, experts may also put forth questionable remedial recommendations under the guise of reviewer or didactic testimony. There are indications that, among experts who recommend specific programs, some expend the same effort in investigating treatment programs that they would expend in selecting restaurants. They state that they have “heard good things about” a particular program or have “checked their website and it looked good.”

In 2006, an American Psychological Association Presidential Task Force on Evidence-Based Practice published a position paper in which the Task Force stated that “patient characteristics” are among the elements of importance in treatment planning. Put simply: Even where a program has demonstrated its effectiveness, it cannot be presumed that the program's intervention strategies will be effective with any potential enrollee. Effective treatment planning requires that careful consideration be given to aspects of each family member's life that will either facilitate or complicate treatment efforts.

The Supreme Court Has Urged Caution

In its decision in Daubert, the Supreme Court commented: “'Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.'” Daubert, 509 U.S. at 595 (citations omitted). Similarly, Alex Kozinski, writing for the U.S. Court of Appeals for the Ninth Circuit, in Daubert on remand, 43 F.3d. 1311 (1995), observed that “something doesn't become 'scientific knowledge' just because it's uttered by a scientist; nor can an expert's self-serving assertion that his conclusions were 'derived by the scientific method' be deemed conclusive.” (At 1315-1316). This speaks to the core distinction between admissible, demonstrable knowledge and subjective belief predicated only upon the ipse dixit of the witness, a concern that dates all the way back to Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923).

Claims by self-described researchers that their data have been “subjected to quantitative analysis” are as vacuous as Esso's 1964 assertion that its gasoline would “put a tiger in your tank.” Nevertheless, it is likely that some drivers were drawn to Esso stations by the catchy slogan, and it is likely that some judges will be impressed by personal re- collections that have been “subjected to quantitative analysis.”

Figure skaters are assigned scores. The assignment to their performances of scores does not bring objectivity to the judging process. For that reason, a procedural precaution is taken by the organizers of figure skating competitions — a precaution often not taken by over-confident alienation researchers. In figure skating competitions, multiple judges are used, making it possible to obtain a measure of inter-rater (inter-judge) reliability. There is cause for concern when individuals whose “findings” are presented in courts exercise less care than the organizers of figure skating competitions. Collections of stories, even when rated in various ways, do not become research data. Judges adjudicating family law matters are urged to adopt the constructively skeptical mind-set advocated by Judge Kozinski.

Experts cannot express opinions with a reasonable degree of professional certainty when the professions to which they belong are uncertain regarding the matters in dispute. Regrettably, some experts express opinions with uninformed certainty. Judges and attorneys must learn to distinguish between uninformed conclusions, no matter how confidently expressed, and those that rest on true expertise.

***** David A. Martindale, Ph.D., ABPP, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology, and is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation.