MEDICAL EXPERT TESTIMONY. 605
or, in many cases, even approximate concurrence of opinion among experts of equal qualifications, is natural and ought to excite no sur- prise. Those are the unreasonable persons who expect anything else. Of course, it is desirable that there should be no disagreement, since in the decision of so nice a question one grain of testimony, more or less, cast into either scale may decide the life or liberty of the per- son whose case is before the court ; but for the fallibility of human opinions, at least to the extent now supposed, no remedy has as yet been provided.
3. If it be true that expert testimony, when questions of sanity or of moral responsibility are involved, is often contradictory and irrec- oncilable, it is equally true of expert testimony where questions of much less complexity are involved. It is true in nearly all cases of dispute upon matters of science, art, or commerce. In the Feuardent Di Cesnola suit we have seen one expert in archaeology afiirm that a piece of statuary was as it came from the hands of the original artist, while another has declared with equal confidence that it was con- structed from fragments obtained from different sources. In the in- vestigation which followed the Ashtabula catastrophe, it was ascer- tained that one man, who was supposed to be both theoretically and practically acquainted with the construction of railroad-bridges, had declared this bridge to have been built according to the most approved system, and that it was perfectly safe, while another expert had ex- pressed a contrary opinion ; and this important question was left to be finally and definitively settled when the bridge had given way un- der the weight of a passing train, and twenty or more lives were lost.
Does it often happen, in any class of cases, that lawyers are unable to obtain expert testimony for their clients, in case they stand in need of it, or that the testimony on the two sides is not conflicting?
Not alone experts, but lawyers also, if we can accept their own statements, do not often agree in opinion as to the merits of the cases of their respective clients. The courts also are far from uniformity in their decisions and their interpretation of the law and the facts.
It has been asked, " If witnesses are not suborned, how does it happen that experts so uniformly testify in the interest of the parties by whom they are employed ? " As if it were a question which admitted of but one answer, namely, that the witness gave his testimony under oath, only as a consideration for the pay he was to receive, and with- out regard to the sanctity of his oath, or to the value of his reputation as a citizen and a man of science.
This question, asked no doubt seriously, will be answered seriously : Because no intelligent lawyer would call an expert witness to the stand until he had ascertained, after a full statement of the case to him, what his opinions were. He would not summon a witness who would certainly, or even possibly, damage the cause of his client.
It is fair to conclude, from the preceding statement of facts, that