Technically there must be some way to force experts to testify, because we've got the CDC director testifying in front of Congress this week, and I'm sure he did not volunteer to do so.
I think he was called to appear in front of a house
investigative committee - usually a non-adversarial proceeding.
The committee was trying to assess what happened and what is needed from a public health perspective. His "testimony" was different from courtroom testimony. Also, the CDC is a federal agency under the Dept. of Health and Human Services. Agency directors are usually willing to appear when congress has questions. Directors failing to appear may affect the funding of their institutions, not to mention their reputations and continued employment/appointment.
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Trial lawyers generally want their client to prevail, especially if they are retained on a contingent fee basis. They want the best expert witnesses with impeccable credentials, mountains of publications, and faculty appointments. I would not hire a resident as an expert on human anatomy. Instead, I would consult my handy, dandy
Trial Lawyers of America directory of Experts and find someone whose educational pedigree traces back to Vesalius.
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Beyond that, couldn't a person who is forced to be an expert witness plead the 5th amendment?
The Fifth Amendment protects
criminal defendants from having to testify if they may incriminate themselves through the testimony. By extension, a
witness may "plead the Fifth" and not answer if the witness believes answering the question may be self-incriminatory. Not every disclosure can be the subject of a Fifth Amendment assertion—only those that the witness “reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might be so used.” (
Kastigar v. United States, 406 U.S. 441, 444-445 (1972).) I don't know if quackery is self-incriminatory.
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I personally would love to hear about situations where psychiatrists have stood up to judges.
see
in re Lifschutz, a 1970 California Supreme Court case:
Dr. Joseph E. Lifschutz, a psychiatrist practicing in California, seeks a writ of habeas corpus to secure his release from the custody of the Sheriff of the County of San Mateo. Dr. Lifschutz was imprisoned after he was adjudged in contempt of court for refusing to obey an order of the San Mateo County Superior Court instructing him to answer questions and produce records relating to communications with a former patient. Dr. Lifschutz contends that this underlying court order was invalid as unconstitutionally infringing his personal constitutional right of privacy, his right effectively to practice his profession, and the constitutional privacy rights of his patients. He also attacks the order, or more specifically, the statutory provisions which authorize the compulsion of his testimony in these circumstances, as unconstitutionally denying him the equal protection of the laws since, under California law, clergymen could not be compelled to reveal certain confidential communications under these circumstances.
. . .
Arabian then subpenaed for deposition Dr. Lifschutz and all of his medical records relating to the treatment of Housek. (Code Civ. Proc., §§ 2016, 2019, subd. (a).) Although Dr. Lifschutz appeared for the deposition, he refused to produce any of his medical records and refused to answer any questions relating to his treatment of patients; the psychiatrist declined even to disclose whether or not Housek had consulted him or had been his patient. Although notified, neither plaintiff Housek nor his attorney was present at this deposition and neither has appeared in any of the subsequent hearings related to this proceeding. Housek has neither expressly claimed a psychotherapist-patient privilege, statutory or constitutional, nor expressly waived such a privilege.
In response to the psychiatrist's refusal to cooperate, defendant Arabian moved for an order of the superior court compelling the production of the subpenaed records and the answers to questions on deposition (Code Civ. Proc., § 2034, subd. (a)). Relying on the patient-litigant exception [2 Cal. 3d 421] of section 1016 of the Evidence Code, the superior court determined that because the plaintiff, in instituting the pending litigation, had tendered as an issue his mental and emotional condition, the statutory psychotherapist-patient (Evid. Code, § 1014) privilege did not apply. On December 20, 1968, the court therefore ordered Dr. Lifschutz to comply with the subpena and to answer questions posed during deposition. fn. 1 On January 15, 1969, defendant attempted to continue with the deposition of Dr. Lifschutz as ordered by the superior court, but petitioner remained resolute in his refusal to respond or produce records. Thereafter, petitioner sought a writ of prohibition to restrain the superior court from enforcing its order; the writ was denied by the Court of Appeal, a petition for hearing was denied by this court, and finally a petition for certiorari to the United States Supreme Court was similarly denied.
The superior court held another hearing on December 5, 1969; when Dr. Lifschutz again refused to comply with the order, the court adjudged him in contempt (Code Civ. Proc., § 1209, subd. 5) fn. 2 and ordered him to be confined in the custody of the Sheriff of San Mateo County (Code Civ. Proc., § 1219). After the Court of Appeal on December 8, 1969, denied without opinion a petition for habeas corpus, this court agreed to hear the case and ordered the petitioner released on his own recognizance pending our determination of the cause.
. . .
In sum, we conclude that no constitutional right enables the psychotherapist to assert an absolute privilege concerning all psychotherapeutic communications. We do not believe the patient-psychotherapist privilege should be frozen into the rigidity of absolutism.
. . .
Inasmuch as plaintiff had already disclosed that he had consulted Dr. Lifschutz for psychotherapeutic treatment, petitioner could not properly have refused to answer at least that question concerning the communications; since neither plaintiff nor the psychotherapist has as yet made any claim that the subpenaed records are not directly relevant to the specific "mental and emotional" injuries for which plaintiff is claiming relief, Dr. Lifschutz had no right to refuse to produce the records.
Ignorantia juris non excusat
