Cringeworthy Voir Dire: How Not to Qualify an Expert Witness

Qualifying an expert witness is as routine a court procedure as it gets, except when the attorney appears clueless and the expert an unqualified bollix.

To be generous in this instance, perhaps the attorney and expert were unprepared because the expert designation was done at the last minute, or perhaps due to the relatively high-profile of the case: a divorced mother opposed to vaccinating her child, a divorced father who wants his child vaccinated, and special interest groups opposed to vaccination filling the court room and adding media coverage to the case.

On October 12th, Michigan Circuit Court Justice Karen McDonalds presided over voir dire of the expert witness, Dr. Toni Lynn Bark. Four days earlier, Justice McDonalds had implored the mother’s attorney, Amy Ruby, to produce a medical expert to testify on the issues of vaccines after McDonalds was forced to stop the mother, Lori Matheson, from continuing to testify about expert medical needs.

Two days later, Ruby designated Dr. Bark, just 24 hours before the voir dire. When Dr. Bark took the stand, Ruby began asking her about vaccines. The judge called Ruby to the bench, explained to Ruby that she needed to establish Dr. Bark as an expert, and then took a break to give Ruby time to prepare. When Justice McDonalds returned, Ruby was no better, and neither was the expert.

McDonalds then explained to Ruby in detail that she needed to ask Dr. Bark what she did, what she specialized in and then request qualifying Dr. Bark as an expert.

Ruby tried again, but it did not go well.

When asked by Ruby what her specialty was, Dr. Bark started off on the somewhat the right foot, answering that she was a specialist in “adversomics.” Dr. Bark admitted that it was not a recognized medical specialty, but the term “... was coined by Gregory Poland¹, one of the most famous vaccinologists.”

Dr. Bark then became argumentative, making a snide comment to opposing counsel, and continuing to talk after opposing counsel raised an objection, leading Justice McDonalds to admonish her. Dr. Bark then started testifying about adverse reactions to vaccinations, rather than trying to establish her expertise.

McDonalds finally lost her patience. “The proper court procedure is not being followed .... it takes not a lot of time to learn how to introduce an expert witness. It hasn’t been done. Read the case law.”

Ruby and Dr. Bark try again. Finally, McDonalds began questioning Dr. Bark directly: “What have you done in the area of adversomics to qualify you as an expert in this area?” “Have you written any articles?”

Dr. Bark responded that yes, she had written an article on adversomics, but didn‘t remember where it was published, or what year. Opposing counsel objected, pointing out that no article was listed on Dr. Bark’s CV.

The saga continued to its ugly end. Justice McDonalds allowed Dr. Bark to testify as an expert, not as a immunology expert witness or in adversomics, but as a physican/surgeon, limiting her testimony to her experience in her practice.

Occasionally, well qualified experts find themselves retained by unprepared attorneys, and sometimes the reverse, but it is rare to find both together. For those who would like to see the video of the courtroom frustration: