1 Verkerk explains that in common law countries the expert is often called an “expert witness”, and in continental jurisdictions an “expert”. This is caused by the fact that the former jurisdictions are more adversarial and the latter more non-adversarial. See Verkerk, Remme, “Comparative aspects of expert evidence in civil litigation”, 13 The International Journal of Evidence and Proof (2009), pp. 167 et sqq., at pp. 167, 170CrossRefGoogle Scholar; see also Verkerk, Remme, Fact Finding in Civil Litigation. A Comparative Perspective (Antwerp: Intersentia, 2010), at p. 160.Google Scholar

2 See in this respect Lopatka, John and Page, William, “Economic Authority and the Limits of Expertise in Antitrust Cases”, 90 Cornell Law Review (2004–2005), pp. 617 et sqq. Google Scholar

3 See, for example, Gregory Werden, “The Admissibility of Expert Economic Testimony in Antitrust Cases”, in American Bar Association, Issues in Competition Law and Policy (2008), pp. 801 et sqq.

4 See Waelbroeck, Denis, Slater, Donald and Even-Shoshan, Gil, Study on the Conditions of Claims for Damages in Case of Infringement of EC Competition Rules – Comparative Report (Brussels: Ashurst, 31 August 2004).Google Scholar

5 See in this respect inter alia Mandel, Michael, “Going for the Gold: Economics as Expert Witnesses”, 13 Journal of Economic Perspectives (1999), pp. 113 et sqq. CrossRefGoogle Scholar

6 See Brookshire, Michael and Slesnick, Frank, “Prevailing Practice in Forensic Economics”, 10 Journal of Forensic Economics (1997), pp. 1 et sqq. CrossRefGoogle Scholar; Thornton, Robert and Ward, John, “The Economist in Tort Litigation”, 13 Journal of Economic Perspectives (1999), pp. 101 et sqq. CrossRefGoogle Scholar

7 See, for example, Deakin, Simon, Johnston, Angus and Markesinis, Basil, Markesinis and Deakin's Tort law, 6th ed. (Oxford: Clarendon Press, 2008), at p. 52 Google Scholar; Dobbs, Dan, The law of torts (St. Paul, Minnesota: West Publishing Co., 2000), at pp. 12, 13Google Scholar; Fleming, John, The law of torts, 8th ed. (Sydney: Law Book Company, 1992), at p. 1 Google Scholar; Keeton, Page et al., Prosser and Keeton on the Law of Torts, 5th student ed. (St. Paul, Minnesota: West Publishing Co., 1984), at pp. 5, 6Google Scholar; Magnus, Ulrich, “Comparative Report on the Law of Damages”, in Magnus, Ulrich (ed.), Unification of Tort Law: Damages (The Hague: Kluwer Law International, 2001), pp. 185 et sqq., at p. 185Google Scholar; Rogers, Horton, Winfield & Jolowicz on Tort, 17th ed. (London: Sweet and Maxwell, 2006), at pp. 2, 3.Google Scholar

8 This basic insight follows from the early writing of Calabresi, Guido, The Costs of Accidents. A Legal and Economic Analysis, 5th printing (New Haven, Connecticut: Yale University Press, 1977)Google Scholar and has been worked out inter alia by Shavell, Steven, “Strict Liability versus Negligence”, 9 Journal of Legal Studies (1980), pp. 1 et sqq. CrossRefGoogle Scholar; Shavell, Steven, Foundations of Economic Analysis of Law (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2004), at pp. 178 et sqq. Google Scholar; Posner, Richard, Economic Analysis of Law (New York: Aspen Publishers 6th edition, 2003), at pp. 167 et sqq.Google Scholar

9 See in this respect also Thornton and Ward, “Economist in Tort Litigation”, supra note 6.

10 These costs are referred to by Calabresi as the so-called “tertiary accident costs” and would by some be referred to as “transaction costs”. However, since formally no transactions take place between a victim and an injurer in a tort case, we rather refer to these as “administrative costs”.

11 See Spier, Jaap, Verbintenissen uit de wet en schadevergoeding, 3rd ed. (Deventer: Kluwer, 2003), at p. 207.Google Scholar

12 See for a similar conclusion Baumann, Florian and Friehe, Tim, “On the Superiority of Damage Averaging in the Case of Strict Liability”, 29 International Review of Law and Economics (2009), pp. 138 et sqq. CrossRefGoogle Scholar

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14 A difference exists in that respect between strict liability and negligence: under strict liability, compensation should be full since this will provide incentives to the potential injurer to correctly weigh costs and benefits of additional care. Under a negligence rule, full compensation is not necessary. As long as the court bases the level of due care on a weighing of costs and benefits of care, the damages should only be high enough to make it financially more attractive for the injurer to take due care (thus avoiding liability) than to be negligent (thus paying the compensation). This difference between strict liability and negligence has been proven by Cooter, Robert, “Prices and Sanctions”, 84 Columbia Law Review (1984), pp. 1343 et sqq. CrossRefGoogle Scholar For practical purposes in this paper we, however, refer to a necessity of “full compensation” although the reader should be aware that this is formally only required under a strict liability rule, not under negligence.

15 For a summary of this literature see Faure, Michael, “Compensation of Non-pecuniary Loss: An Economic Perspective”, in Magnus, Ulrich and Spier, Jaap (eds), European Tort Law. Liber Amicorum for Helmut Koziol (Frankfurt am Main: Peter Lang Verlag, 2000), pp. 143 et sqq. Google Scholar

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21 See Bishop, William, “Economic Loss in Tort”, 2 Oxford Journal of Legal Studies (1982), pp. 1 et sqq. CrossRefGoogle Scholar; see also the special of the International Review of Law and Economics (2007), pp. 1–110.

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23 With this we do not suggest that it would be socially optimal never to award compensation for small losses, due to administrative costs. This could be problematic since the activity may shift to cause several small losses instead of a few larger ones. Moreover, if the court system works well, there may be fewer cases and thus administrative costs can be lower since parties could anticipate the results of the court case and would thus settle.

24 Lewis, Richard, McNabb, Robert, Robinson, Helen and Wass, Victoria, “Court Awards of Damages for Loss of Future Earnings: An Empirical Study and an Alternative Method of Calculation”, 20 Journal of Law and Society (2002), pp. 406 et sqq., at p. 412.CrossRefGoogle Scholar

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26 Ibid., at p. 415.

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28 Of course we do realise that, especially to the extent that personal injury or death are caused intentionally, criminal law may apply and may provide incentives for prevention as well. Here, however, we focus on incentives provided by tort law. For the possible role of punitive damages in this respect, see supra note 16.

29 Viscusi, Kip and Aldy, Joseph, “The Value of a Statistical Life: A Critical Review of Market Estimates throughout the World”, 27 The Journal of Risk and Uncertainty (2003), pp. 5 et sqq. CrossRefGoogle Scholar

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38 A further refinement could consist of taking into account that with increasing age the QALY will decrease (as a result of elderly illnesses et cetera), in which case the compensation would also be lower.

39 See Karapanou, Vaia and Visscher, Louis, “Towards a Better Assessment of Pain and Suffering Damages”, 1 Journal of European Tort Law (2010), pp. 48 et sqq. CrossRefGoogle Scholar

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42 This is to a large extent due to the adversarial trial. Thus it is often forgotten that in a way parties also have concurring interests, such as the quick resolvement of the case at relatively low costs.

43 See in that respect also Mandel, “Going for the Gold”, supra note 5, at p. 116.

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51 Ibid., at p. 37.

52 Ibid., at p. 47.

53 See Jonathan Tomlin and David Cooper, “When Should Judges Appoint Experts? A Law and Economics Perspective”, Bepress Legal Series. Working Paper 1699 (2006), available on the Internet at <http://law.bepress.com/expresso/eps/1699> (last accessed on 5 August 2011), at p. 10.

54 See Sarvadi, David and Blackwood, Amy, “Expert Testimony in the Silica-Cases: The Fallacy of Scientific Objectivity – Some Observations”, 14 Journal of Chemical Health & Safety (2007), pp. 31 et sqq., at p. 34.CrossRefGoogle Scholar

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58 Sales, Bruce and Shuman, Daniel, Experts in Court. Reconciling Law, Science, and Professional Knowledge (Washington: American Psychological Association, 2005), at pp. 6, 7.CrossRefGoogle Scholar

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60 In the words of Mandel: “Lawyers are persuasive characters. If you're not prepared for it, you can find yourself saying things you would never say to your colleagues”; Mandel, “Going for the Gold”, supra note 5, at p. 119.

61 Krafka, Carol, Dunn, Meghan, Johnson, Molly Treadway et al., “Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials”, 8 Psychology, Public Policy, and Law (2002), pp. 309 et sqq., at p. 328.CrossRefGoogle Scholar

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63 113 S Ct 2786 (1993).

64 See on this Daubert case law and the subsequent Supreme Court case law also “Reliable Evaluation of Expert Testimony” (note), 116 Harvard Law Review (2002–2003), pp. 2142 et sqq.; Werden, “Admissibility of Expert Economic Testimony”, supra note 3.

65 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 5.

66 In Re Silica Products Liability Litigation, no. 2:05-CV-00121, S.D. Tex. 30 June, 2005.

67 See for a discussion of this interesting case Sarvadi and Blackwood, “Expert Testimony in the Silica-Cases”, supra note 54.

68 These were based inter alia on an x-ray of the chest, a prior history of exposure to silica and the exclusion of other possible sources of the disease.

69 Posner, Richard, “The Law and Economics of the Economic Expert Witness”, 13 Journal of Economic Perspectives (1999), pp. 91 et sqq., at pp. 94, 95.CrossRefGoogle Scholar

70 Verkerk, Remme, “Procesrechtelijke waarborgen voor een betrouwbaar deskundigenonderzoek”, 24 Nederlands Tijdschrift voor Burgerlijk Recht (2007), pp. 491 et sqq. Google Scholar; see also Verkerk, Fact Finding in Civil Litigation, supra note 1, at p. 166.

71 Posner, “Economic Expert Witness”, supra note 69, at p. 94.

72 Thornton and Ward, “Economist in Tort Litigation”, supra note 6, at p. 108.

73 The use of lists does, however, not go undisputed either. To the extent that courts would only appoint experts on the list and not others of equal quality these lists could lead to an effective monopoly. We will discuss this problem in the next subsection. However, removing a bad expert from a list could provide appropriate incentives to the expert for a higher quality testimony, even if being party appointed.

74 See generally on self-regulation Ogus, Anthony, “Self-regulation”, in Bouckaert, Boudewijn and De Geest, Gerrit (eds), Encyclopaedia of Law and Economics, Vol. V, The Economics of Crime and Litigation (Cheltenham: Edward Elgar, 2000), pp. 587 et sqq. Google Scholar; Ogus, Anthony, “Rethinking Self-regulation”, 15 Oxford Journal of Legal Studies (1995), pp. 97 et sqq. CrossRefGoogle Scholar

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77 Nederlands Instituut van Register Experts (NIVRE).

78 Associatie van Belgische Experten (ABEX).

79 Smith, Adam, An Inquiry into the Nature and the Causes of the Wealth of Nations, 5th ed. (New York: The Modern Library, reprint 1937), at pp. 127–128.Google Scholar

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86 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at pp. 14 et sqq.; Tomlin and Cooper, “Expert Testimony”, supra note 55, at p. 11.

87 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 28.

88 Parker, Jeffrey and Kobayashi, Bruce, “Evidence”, in Bouckaert, Boudewijn and G., Gerrit De Geest (eds), Encyclopaedia of Law and Economics, Vol. V, The Economics of Crime and Litigation (Cheltenham: Edward Elgar, 2000), pp. 290 et sqq., at pp. 294, 295.Google Scholar

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91 This is strongly related to the behavioural bias of the “anchoring effect” discussed above.

92 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at pp. 12, 13.

93 Froeb, Luke and Kobayashi, Bruce, “Evidence production in adversarial vs. inquisitorial regimes”, 70 Economics Letters (2001), pp. 267 et sqq. CrossRefGoogle Scholar; Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 14; Tomlin and Cooper, “Expert Testimony”, supra note 55, at p.8.

94 See Posner, “Economic Expert Witness”, supra note 69, at p. 96.

95 Sales and Shuman, Experts in Court, supra note 58, at p. 132.

96 Verkerk, Comparative aspects, supra note 1, at pp. 168 et sqq.

98 Ibid., at p. 175.

98 Ibid., at p. 180.

99 Ibid., at p. 193.

100 Mandel, “Going for the Gold”, supra note 5, at p. 119.

101 Posner, “Economic Expert Witness”, supra note 69, at pp. 94, 95.

102 See, for example, Hall, Robert and Lazear, Victoria, “Reference Guide on Estimation of Economic Losses in Damage Awards”, in Reference Manual on Scientific Evidence, 2nd ed. (Federal Judicial Center, 2000), pp. 277 et sqq. Google Scholar

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105 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 31.

106 See Sarvadi and Blackwood, “Expert Testimony in the Silica-Cases”, supra note 54, at p. 34.

107 Tomlin and Cooper, “When Should Judges Appoint Experts”, supra note 53, at p. 32.

108 Alemanno, Alberto, “Science and Risk Regulation: The Role of Experts in Decision-Making and Judicial Review”, in Vos, Ellen (ed.), European Risk Governance – Its Science, its Inclusiveness and its Effectiveness, CONNEX Report Series Nr 06 (2008), pp. 37 et sqq., at pp. 65 et sqq.Google Scholar