In this episode…
Our guest, Jim O’Reilly, is a Professor at the Public Health Department of Environmental Health, College of Medicine at the University of Cincinnati. He was the chair of a 8,000-member American Bar Association’s section of Administrative Law and Regulatory Practice. His first book in 1976 was rejected four times by four different publishers, but went on to become a bestseller on privacy laws. He has written 56 books and awaits the committee’s decision by Thomson Reuters West on his 57th book.
On this episode, Michelle Loux interviews Jim about his journey as an expert witness in public health. He shares some highlights being an expert, the most significant was on March 20th, 2000, when his phone rang and the person on the other end said, “Professor, this is John Doe from the Washington Post. What do you think of the United States Supreme Court calling you the expert on FDA law?” That recognition from the Supreme Court launched his career in new ways as an expert witness. From his years of experience as an arbitrator to being an advisor in a special project for the Deputy Secretary General of the European Union and meeting with 23 other countries to discuss regulatory law, to currently teaching public health, he has an appreciation of what it means to be a successful expert witness. He shares that it’s a “once-in-a-lifetime opportunity, so be attentive to the limitations . . . try to be as middle of the road as you can, you want to have good foundational support.“
Note: Transcript has been lightly edited for clarity.
Host: Michelle Loux, Assistant Project Manager, Round Table Group
Guest: Jim O’Reilly, Professor of Public Health, University of Cincinnati
Michelle Loux: Hello and welcome to Discussions at the Round Table. I am your host, Michelle Loux. Today my guest is Jim O’Reilly. He is a Professor at the Public Health Department of Environmental Health, College of Medicine at the University of Cincinnati. Jim, please describe what you do and how you started as an expert witness.
Jim O’Reilly: Thank you. I appreciate the opportunity to talk about my extensive career. The highlight occurred on Monday, March 20th, 2000, at 9:15 AM, when the phone rang, and the person at the other end said, “Professor, this is John Doe from the Washington Post. What do you think of the United States Supreme Court calling you the expert on FDA law?” I laughed and said, “Is this a gag? Who is this?” He said, “No, it is not a gag.” I said, “When did the Supreme Court say that?” He said, “Fifteen minutes ago.” I said, “In that case, I certainly agree. Thank you very much.” I hung up, went online, and the Supreme Court issued its opinion at 9:00, saying the experts had written that. Then they quoted a chunk of my textbook on Food and Drug law. Well, when you are called an expert by the Supreme Court, that is cool. Nine days later, I was appearing as an expert in West Virginia at the Kanawha County Superior Court. The other side stood up and said, “Your honor, this man is not an expert. We move to strike.” The judge said, “If he is an expert at the United States Supreme Court, he is an expert in the Kanawha County Court of West Virginia, denied.” There are advantages to this, aren’t there?
I have done years of expert witnessing. I just came back from depositing an expert witness check. Getting a large check is always lovely, so the opportunity is there. If you are an expert that has prepared well and has served the client’s needs, the opportunity is there. It would be best if you avoided certain basic mistakes. One is assuming that the Supreme Court calling you an expert does not happen every day. It is a once-in-a-lifetime opportunity, so be attentive to the limitations. Next, be careful how you phrase your opinion so that it is not radical and that is agreeable to most people. Try to be as middle of the road as you can. You want to have good foundational support. Then recognize that the opposing side will think you are the dumbest creature ever. When the other side insults you that way, just let it ride. You are not there for a battle. You are there to present your best opinion and the other side may have a strong will and opinion. They should not get personal and attack. If they do, let it go.
Many years ago, I was a police officer in New York, and quite often, the persons with whom I interacted had strong feelings which they expressed. I will not repeat what they called me, but that is how it is. Recognize that your opinion is grounded on the data and the legal issues you have prepared. The individual who is opposing you might do everything they want to do to attack your opinion. But recognize that by being straight, consistent, and well-grounded, you will get more recognition from the judge.
I am also an arbitrator who did arbitration involving the teacher’s union. During that session, the teacher’s union’s person said, “Well, I want the media to know these girls are working hard.” These girls have done everything they can.” Well, I said, “Excuse me. Why don’t you and I go outside?” He was puzzled, and he and I went out in the corridor. I said, “Excuse me. You represent the teachers; they are not ‘these girls.’ “They are professionals, and you must act like a professional in my arbitration context.” Like being in a judge’s courtroom, always be a professional. Even if you disagree with the content, be professional; it will go much further with the neutral. Those are the basics that I wanted to mention.
Michelle Loux: You did bring up a point during the cross-examination piece [and being put on the defense] by the opposing side, who is trying to rattle you. It sounds like you have an excellent background in law enforcement, and you are used to controversy and keeping your cool. Have you found that the attorneys that hire you prepare you for the cross examination? Is that step part of being an expert?
Jim O’Reilly: They know their case inside and out. A part of the law or a part of the factual data. You are not going to be an expert in all the aspects that bring him or her to the forum. You are not going to be an expert in that, but you are going to be able to say, “I have no opinion on that aspect, but as to the work that I have presented in my written submission, I feel strongly that X&Y&Z.”
Michelle Loux: When you are organizing information for your case, are there any project management tips you use to prepare yourself for the deposition or testimony? Are there some easy things that you can put into place as an expert?
Jim O’Reilly: Yes, the attorney you are working with has invested many hours getting to the point of the hearing or trial. Please respect that and assume that what they have done is a legitimate well based well-rounded position and build on from there. Do not assume that the person who engaged you knows nothing about XYZ, and you are the world’s expert on XYZ. The fact that they have a point of view that you are listening to and recognize could go this far. But not so far. You are not going to be lying, and you are not going to be cheating. You are not doing anything wrong, but you recognize that they have a deep awareness of the significant issues in your case.
Michelle Loux: An initial interview happens, and you get a phone call that says, “Professor, we would like to consider you an expert.” What are your questions for them to determine whether you are the right fit for that case?
Jim O’Reilly: I would like to know the significance of their client’s case, informing the precedents in this topical area for years. My first book in 1976 was rejected four times by four publishers. All of them said nobody cares about privacy. Who is going to buy a book on privacy? That book was a bestseller. The publisher said, “Wow, what else can you do for us?” I went on to the FDA book, the next book, and the next book. I have had 56 books published and await the committee’s decision by Thomson Reuters West on my 57th book. Individuals may not have the same point of view that I do on the topical area. In my first conversation with them as a potential expert. I want to see if we are simpatico and understand each other. If we are not, I am not prepared to put my reputation on the line to get from here to where they want to go. I would rather say, “Let’s talk about it.” If your client’s malpractice case determines whether a physician should do this, I would be very interested in discussing the proper method with others who have been in that kind of surgery. What is the standard way of doing this? I want to do that rather than make it up as I go along.
Michelle Loux: All good points on the initial interview and understanding if that relationship will work now that you are retained and moving forward. Are there particular terms in your contract? Is anything put into place that decides how many hours you are working on documents . . . what is expected from you?
Jim O’Reilly: That varies depending on the topic. My work is in the food and drug law field, so I cannot say if there is one particular area. I can say there are 25 subspecialties anyone could be called upon.
Michelle Loux: Any other stories about being an expert witness you would like to share?
Jim O’Reilly: As I mentioned earlier in our discussion, the United States Supreme Court did it all by saying that I was their expert in Food and Drug Law. That made a huge difference in my career. My greatest opportunity is in the medical device field because I am the last survivor of the group that negotiated the 1975-76 medical device amendments, section 510K, which medical device products go through to get approved. I was part of the negotiations. So, when we discuss an expert’s role in a medical device, I can easily say yes, I understand it because I helped to write it. Those who were with me in 1975-75 are no longer alive. That gives me an opportunity to be an expert, to go to Europe and interact with Europeans. I was an advisor in a special project for the Deputy Secretary General of the European Union. That was interesting because they have 23 countries and our meetings in Brussels would consist of two or three Americans, the deputy Secretary General, and then 18 to 20 members from different countries, like Spain, Greece, etc. That gives you a good dimension of what is occurring because you are explaining ways, they could do things differently than they had previously. We can bring back to the American Bar Association better methods of doing this compared to what we have been doing. Interaction and cross-fertilization of ideas are some of the fun things about being on the international side. Frequently, my role has been as a technical, legal, and regulatory expert on a product injury case. In the product injury case, we are advising about why that particular injury would or would not have been a regulatory violation. So that is what are doing.
Michelle Loux: When you go outside the United States’ court system there are different laws or approaches. Did you find that there is help along the way when you are providing testimony in Europe? Or did they come to you to get an understanding of how to regulate?
Jim O’Reilly: They came to the American Bar Association. Better regulation was the title of what they were doing. I was the chair of the 8,000-member American Bar Association’s section of Administrative Law and Regulatory Practice, and I could say to them credibly, this is the way the United States does it. These are some things you could consider, and these are some of the benefits you receive when you integrate multiple perspectives into a symbol. That is what we were trying to achieve.
Michelle Loux: That is a nice experience as an expert witness, making a change and seeing it happen on a global scale, not just within your state or own community. Is it something you would do over again if you had the chance?
Jim O’Reilly: I would do more of it. Much of it came from my work as a labor arbitrator. Labor tends to be very combative. I do not feel as comfortable giving combative people advice. I want them to cool down before we get into the discussion of what is a better way to do it. Learning in the labor arbitration side occasionally gives you very disruptive situations. About six years ago, there was a football player for the Baltimore Ravens who got on an elevator with his girlfriend and in light of the camera that was on the elevator, he punched her, punched her out, knocked her down to the floor. When the elevator door opened and he walked out and she was lying on the floor. It was an awful, awful situation. I was teaching labor arbitration and in the labor arbitration context, I said to the students, “OK, you are going to represent The National Football League and you are going to represent the Baltimore Ravens, and you are going to represent this crazy guy.
We are giving you this very unpalatable situation and you have got to figure out how to defend this person. What is the right way to represent him? One of the students got very, very angry, she said. “No, you can’t require me to do this. I think what he did was terrible and I would never, ever represent him.” I said, “Well, I hear what you are saying and I recognize that as a woman you are offended by the brutality of the male. But oftentimes you as a recipient of a legal assignment will have to do something that you might personally not feel comfortable with. But you are going to have to articulate what is the best way to construe the terms of the contract between the Baltimore Ravens and this person, the Baltimore Ravens, and the National Football League. How are you going to construe that in a way that gets to a reasonable solution? None of us liked what he did to the girlfriend. None of us liked it, but we have to think rationally. As arbitrators, what is the solution that does justice to her as well as justice to him? That student did not like it at all and made a big stink about it. That is the risk you take when you are teaching. Some students will not like what you are doing. I think it is important that students, at least in the classroom setting, be put into a situation where they might feel personally uncomfortable. But they have got to reason through, what is it that would be done to reach an agreement? And that is why that is important in the trial situation. It is different of course because in a trial situation, you are representing neutrality and the parties in that situation typically arguing over money. Should she get X dollars and should he get X dollars? Should the company be required to pay X dollars? Those are all issues that will involve. Of the merits of the offense and how much should that offense lead to a payment? When you are an expert witness in that circumstance, your job is not to come up with the dollar amount. But it is to say these are the elements of the appropriate outcome. and then the dollar amounts are for others. Typically, a civil jury.
Michelle Loux: You must be comfortable with being uncomfortable; it is not always the situation you find yourself in, but it is an exercise to learn how to handle those situations in the future. Thank you, Jim. I appreciate your time.
Jim O’Reilly: I wish you all the best. Thank you.
After a quarter century helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On the Discussions at the Round Table podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Jim's varied career as an arbitrator and a professor in public healthcare management has spanned several decades. He has served as Director of the Concentration in Health Services Management of the Division of Public Health Sciences at University of Cincinnati College of Medicine. He was an Associate General Counsel at Proctor & Gamble from 1974-1998.
Medical devices are instruments, apparatus, implements, machines or implants, in-vitro reagents, components, or accessories that are made to be used to diagnose disease. These devices are also used in the cure, alleviation, treatment, or disease prevention.
Public health is the science of protecting and improving the health and safety of society. This is accomplished with government regulation and support. Public health officials deal with epidemiology, hygiene, and disease prevention.
In the last one hundred years, the number of laws, regulations, specifications and guidelines has increased greatly. No matter the industry or company size all businesses must follow certain laws and regulations related to its operations. Regulatory Compliance is different from corporate compliance, internal rules and policies.