Expert WitnessesAt the beginning of the scientific era, men had the hope that the ability to discover truth would free mankind from superstition, dogma, and the service of power. The belief in truth was powerful. Truth would deliver justice and bring an end to status-based privileges and the falsehoods propagated by privilege.
This post is about the difference between the intent of the law and how it is actually practiced. It is prompted by my own difficult, well maddening, experiences.
In the hopes that others will not have to go through anything comparable to what I have endured, I want to break the silence around the legal issues that I have battled for six years. Unfortunately, what I have to say is hugely critical of our judicial system and the abusive corporate interests that seem to have hijacked what many of us believed was our birth right.
I paid for errors in judgment and for trusting people to be honorable who probably never had the slightest intention to be so; but the real problem is never in anyone's naïveté but rather the advantage others seize when they can. Since I believe that we live in a world of mirrors in which our own microcosmic events are played out on bigger stages ruled by the macrocosm, I think we have to ask some cogent questions about our society and the direction civilization is headed. However, before doing so, I want to emphasize that I am not "projecting" my tribulations onto a wider canvas but rather have observed patterns on that canvas that ripple in ways similar to my own issues, which, of course, are minor in comparison to the larger picture.
Integrity
Ultimately, survival depends on integrity. This is probably as true for individuals as corporations and governments and as true for other forms of life as for humans. Thus, when power is used in a manner that destabilizes that integrity, it ought to be a concern for everyone. Most of us would probably agree that abuse of power went too far with Enron and WorldCom, that it has gone too far in Washington, DC, and that it is long past time to correct these tendencies lest the issues of global warming, homelessness, disease, and human rights are lost to selfish interests with short-term objectives.
These prefacing remarks may seem oblique, like a detour from reality, but I think they are relevant to what follows because my experience with the contractor who built my house, with the insurance company, and with the legal system were all about power, not about duty, obligation, responsibility, liability, or fairness. Unfortunately for our society, the days when the customer was always right were over quite some years ago. Now, we are seeing a free-for-all in which the name of the game is to see how much one can manipulate the system to avoid contractual and implied obligation. I want to expose how the game is played--as opposed to how it ought to be played--because I think we are all imminent if not potential victims of similar travesties unless public outrage is heard at the highest levels of business and politics.
Haves and Have Nots
Unfortunately, I believe there is a cavalier attitude among the rich that they are somehow entitled to whatever they can obtain whether the means are just or not. When politicians and talk show hosts were first commenting on the wars in Afghanistan and Iraq, they often focused on what we could do rather than what we should do. For instance, if the U.S. is the richest and most powerful country in the world, we have the opportunity to impose our will on others so what is holding us back? The only thing that might hold us back is conscience accompanied by human decency and a desire to live by a more noble standard than Attila the Hun or other conquerors. I think Michael Moore tried to reveal the utter depravity of our administration by showing scenes of banquets where the rich celebrated their chance to get richer; but my point is that this kind of behavior is not just reprehensible and uncivilized, it jeopardizes the integrity upon which survival itself depends. Unless we accept this, we as a people will keep running on steroids and risk leaving nothing to future generations.
So, I do not intend to swallow my losses quietly and I will tell the whole agonizing story because it is time to burst the bubble. This said, it is hard to know where to begin except feebly to attempt to apologize for some of my earlier reticence because one of the first things that happens when a law suit is initiated is that all normal forms of communication break down. This, in itself, is lamentable because what should happen whenever there are any differences or discrepancies to sort out is that the various parties should be forced to sit around a table with a skilled mediator who forces everyone to be truthful and fair. To our shame, very few lawyers make their livings mediating and those who expect to prevail will always resist attempts to negotiate if they think the winner can take all. Since few situations are so absolutely black and white, the idea that one can wipe someone else off the face of the map is fundamentally flawed, but it is operative.
Disempowerment and Distortions
Lawyers take away the power of their clients to think and speak for themselves. If you watch them, you see that for the most part they are not good conversationalists because they guard their words rather than move with the flow. This alone ought to warn someone not to become a lawyer because it will sooner or later jeopardize relationships, not to mention the soul. This said, I believe there are many sincere and highly motivated lawyers, people like Robert Kennedy, Jr., and who knows, maybe even Barack Obama; but important as the work of a lawyer might be, the system itself is so bad that law is a basically unhappy profession even when there are good days here and there. I think it becomes harder and harder to remain human within a system that is itself miserable; however, some people manage and hats off to those few who manage to preserve their humanity in a profession that is seldom motivated by compassion or the desire to leave the world a better place than one found it.
So, while recognizing the magnificent work of a few, the vast majority of lawyers are paid to take sides so one of the first experiences I had when Bob booked appointments with prospective mold litigators was to realize that most lawyers work both sides, something that absolutely never crossed my mind. In my world, the quest for truth is so important that proclaiming one thing one day and the opposite another would be inconceivable. Oh, certainly, great theories are occasionally overturned but Bob and I interviewed ever so many mold inspectors and remediators as well as attorneys. In nearly every instance, both the prospective expert witnesses and lawyers readily admitted that they usually worked for those you and I might perceive as defendants rather than plaintiffs.
The way my mind works, I tried to ferret out what the individuals actually believed in their hearts and souls. This was, for the most part, much more difficult than you might imagine because these people are in business and part of the rules of their survival entail generating cash flow wherever they see a golden egg. I was totally astonished, no taken aback, by the crassness of some of those we interviewed because one would think that truth factored into the work. In actuality, truth is a highly manipulated and negotiable quotient and this is a big part of the problem. I want to repeat this: truth is subjected to so much distortion that facts become part of the problem rather than the solution. Each side in a law suit has to take similar information and contort the facts to the point that they are unrecognizable and sometimes ludicrous. Justice cannot be served in this kind of match. It is one thing to be assigned a topic for debate and another to take the arguments so seriously that one's professional life is dominated by distortions rather than truth. This, folks, is a very serious problem, very serious.
Bad Faith
Let me take a few for instances because these are relevant even to those who are not engaged in insurance claims or law suits. For the moment, I will not disclose names, but there will be occasions when the situations were so blatant and egregious that I have no qualms about providing names.
Remember that very early on in my saga, I was faxed a list of mold "experts" by the American Lung Association. This list was actually quite diverse since it included at least one medical doctor, some volunteers who were seeking certification, and professional inspectors and remediators. Nearly all of these people not only perform certain services relating to mold, but they often appear as expert witnesses. Moreover, they appear as expert witnesses for mold victims as well as defendants. In short, while there must be honest persons in this business, most of them are capable of talking out of either side of the mouth depending on whose signature is on the check.
Soon after I became convinced of the existence of mold in my house, I began interviewing people on the list. I was trying to persuade Mutual of Enumclaw to take mold seriously. Little did I realize that they did take mold seriously which is precisely why they were stonewalling me. In any event, one of the many truly ugly instances of bad faith involved a series of discussions with MOE about the need for mold testing. Initially, they objected strenuously, insisting it was unnecessary. I said I had a need for tests. This seemed to take the adjuster by surprise. He was not prepared for my determination. He asked who would perform the tests. I told him that since I was paying for the tests, I preferred not to divulge this information until the tests were completed. Lest this sound paranoid, I was not, at that point, still at entry level with such tensions and had already had some experiences with both the contractor and insurance company in which they had behaved inappropriately, by which I mean, they would try to intercept information before it reached me even though I was the one who had arranged for the work.
So, the adjuster offered to split the cost of the mold testing in the event that the test was positive. This hardly sounded like a bonanza to me so I refused the bait. He then offered to share in the expense regardless of outcome, but he wanted to know who was going to do the testing. Reluctantly, I gave him the name. The next time I talked to the owner of the company, he informed me that since Mutual of Enumclaw was ordering the tests, he could not talk to me; moreover, the test results would be sent to MOE, not me. In fact, he said, I would not be shown the results. I told him this was totally unsatisfactory because I had a need to know. He said he unfortunately could not give me the results. Mind you, he and I had had a number of discussions about the issues I had with my house and health and we had developed a plan for testing that promised to uncover the causes. This entire chapter of the journey was rewritten by MOE. They said the mold inspector came to my house and that I slammed the door in his face, this after hours of travel to the house. This is ridiculous. The testing was canceled when I was told I would not be shown the results and no one from the company ever came to the house. Mind you, it had been presumed by the adjuster that I would pay half of the testing despite being denied the results. I argued this matter as insistently as I knew how, but the most I accomplished was a vague concession suggesting that maybe they would reconsider.
My point here is to show that the steroids kicked in very early and the fear of what would be found was evident in the early months but instead of agreeing to a healthy and fair solution that provided adequate safety to me and my pets, devious tactics were introduced. Moreover, going back even earlier, I would say that the fear of mold was so great that the first adjuster avoided response until 10 days after the flood, this so that the moisture readings and other observations would be much closer to normal conditions than to what was actually the case when the flood occurred. The language used to describe swollen walls and buckling wood was that everything would "relax back into place" when dry. Oh, really? What about warping and mold? These possibilities were carefully avoided and whatever is avoided is not found in the report. I am warning you: amending a report is a very difficult undertaking. Frontline and other programs have headlined similar practices by insurance companies, often emphasizing the difficulties faced by Californian quake victims or Katrina victims. If we have any doubt at all as to the motivation behind this modus operandi, we have to see that the practice is pervasive. It is also unethical.
One Trick Ponies
Before going into tedious details, I want to show a few more examples of just how treacherous a conflict of interest or conflict of opinion is. The lawyer that I first retained to file the law suit had a sort of package approach to mold. Unlike the other lawyers, she always represented the victims, but she had her little team of experts, people Bob dubbed "the one trick ponies." Bob had a marvelously incisive mind and sometimes sharp wit, but he generally managed to say things inoffensively. However, where mold is concerned, a one trick pony is an expert witness who makes a significant portion of his livelihood by repeating the same refrains in signed statements and court rooms. These witnesses, of course, will be cross-examined. One attorney told me that if a lawyer had to go out of state to get someone to say what he/she wanted him to say that the other attorney would simply go to the University of Washington to find a homespun expert who would say the opposite. They sometimes pay these people many thousands of dollars so while on this subject, let me tell you more about how this game is played.
The first mold inspection, the one that was canceled, was going to cost around $1000. This seemed like a lot but there would have been travel time and lab tests in addition to the time spent on site. In reality, when this arrangement blew up, I found someone local who ran preliminary tests for half that. However, when Mutual of Enumclaw wanted to refute him, on paper, they paid about $6500 to a bimbo, sorry but he really was incompetent, who ran tests with windows open and filtration running, but he said more or less what they paid him to say, including several things that were totally fabricated and untrue.
Because they think and work in this manner, perhaps they think this is how the world works; but I had no interest whatsoever in rigging the results because if the tests were negative, there would be no impediment to selling the house whereas if they were positive, in theory at least, Mutual of Enumclaw would have to remediate. Theories are however useless when not playing by the rules.
Anyway, a one trick pony can also be a remediator who will charge thousands to perform tests and develop a protocol for remediation if he is retained as an expert witness. However, if he is retained as a remediator rather than inspector, he will turn up the heat and cook the house until the mold dies. In reality, this will not work, but this is precisely what the first pony said. It shocked me and when I was reeling from shock, I heard echoes of what the detractor attorney had said about head hunting at UW.
Because the game is played on steroids, anything goes and the loudest and boldest probably prevails. However, this seldom assures justice--in which case, Truth is very much the victim.
Where medical claims are concerned, I have even bigger concerns than with inspectors and adjusters. It may sound judgmental or even snobbish, but I personally expect more from doctors than adjusters. They are supposedly educated and scientific and guided by dedication to those who suffer. So, the idea that you can just go out shopping to find the expert witness to fill your bill is more than a bit appalling. For me, it is even more disheartening that these medical witnesses are invested in arguing the incurability of conditions rather than treatment. This has to be the case because the judgment will depend on the perceived magnitude of suffering so a simple solution is not interesting to lawyers. No social good comes from this. I do understand the need to compensate victims, but I happen not to have a lot of respect for doctors who cannot cure people.
This said, I want to describe another of the ponies because eventually, one has a whole circus of these creatures, each paid to espouse a particular point of view and to look dumb if the view is repudiated.
My lawyer wanted me to talk to a doctor who would run some cognitive tests that would allegedly measure damage to the central nervous system. I tried very hard to put aside my prejudices. I called him and what is so user-friendly about such ponies is that they propose non-invasive tests that are backed by university studies, well, actually, in this case, just one university and just one study. It's very hard not to sound wholly disrespectful and critical, but interesting as the study was, it was a single study and it wasn't done at UW, meaning, the defense could find someone from UW who could say with a straight face that he never heard of such a study and was incredulous that it could be taken seriously. So, I did some online research, very much more difficult a few years ago than today. I tried to find what the experts would say and how they would argue. I am sorry to say, but I had to agree with the detractor rather than my own attorney.
The problem is that once you call a pony, the pony tends to add you to his Rolodex. He lets you know when he'll be on the road, maybe a little closer so you can save a few thousand in travel expenses and hotels. This irks the daylights out of me because it seems so totally unprofessional. It's bad enough when lawyers chase ambulances but when doctors chase witness fees, the system starts to rot.
Setting the Right Priorities
There is much more to this part of the story. Being a health care professional myself, I found it impossible to forego the quest for cure simply in order to be compensated for suffering. At one time, I had very severe symptoms, one that the pony doctor would have been able to measure. I was slurring, my memory was erratic, especially in certain specific areas of cognition, and I had dizziness, blurry vision, disorientation, and so on and so forth, nothing new to anyone who has been delving into the horrors of mold. However, to hang onto to these symptoms for x years so as to present as a basket case before a jury would violate my own well being, not to mention my healing ethics. I listened to pony doctor explain how he is helping people, but basically, he is helping the way lawyers "help" in that he is putting his knowledge and skills on the table for the material benefit, that is dollar benefit, of the patient/plaintiff. When a lawyer does this, the lawyer might appear as a knight on a white horse, championing the cause of a seriously challenged underdog, but when a doctor foregoes treatment so as to enhance the cash award, he is no longer a doctor. He is an expert witness functioning within the legal system but dishonoring his obligation to science. Perhaps even more importantly, by placing the emphasis on incurability and cash for suffering, the doctor might be aiding and abetting the forfeiture of the chance to heal. Even if this opportunity is not a one shot chance with a narrow window of promise, the doctor's behavior implies that cash is valued over health, and this, frankly, is intolerable because the quality of life of a moldie is not much to celebrate.
This said, the doctors who testify for defendants are even more reprehensible because basically, they accept money for demeaning the magnitude of suffering and making the problems look far less complex than they are. Moreover, they often stoop to utterly unprofessional tactics in which they either deny the existence of symptoms or they attribute them to some other cause, in either case, they trivialize serious conditions that warrant proper treatment and which might, in fact, be treated if the doctors were functioning as doctors should rather than riding around in parades orchestrated by insurance companies.
Obviously, I was and remain to this day deeply uncomfortable with the issues that arose, but bad as things started out, everything got worse. I should have remembered the lecture I wrote for a conference in the late 70s in which I discussed the endocrine system and its hormones because lawyers on steroids will not play by the rules.
To be continued!
Copyright by Ingrid Naiman 2006
Poulsbo, Washington
Copyright by Ingrid Naiman 2006