The importance of expert witnesses in today’s legal system cannot be overstated. Expert witnesses should be retained whenever the subject matter of a case is complex or scientific so that they can better explain these issues to a jury, a situation which arises frequently. Ideally, expert witnesses should always work as an asset by adding evidentiary support to the case strategy and increasing the possibility of a favorable outcome. But what happens when an expert’s performance and work product are subpar, deficient, or just plain wrong? What is the recourse for the parties?
Traditionally, courts have generally provided blanket immunity to expert witnesses, preventing them for being sued for their performance. However, such immunity has been slowly eroded over time, with some jurisdictions permitting experts to be held liable in certain instances for their substandard work. Nevertheless, courts throughout the United States remain split and the general consensus is still ambiguous as to when and how an expert may be found liable.
The History of Expert Witness Immunity
Historically speaking, witness immunity has always existed in United States jurisprudence, as the doctrine dates back to old English common law of the 16th century. The witness immunity doctrine (also referred to as a privilege) is a common law doctrine protects witnesses who testify at a legal proceeding from lawsuits arising from their testimony. The public policy rationale behind the doctrine is that witnesses should feel that they can testify truthfully without the fear or intimidation of a retaliatory civil action against them. The United States Supreme Court reiterated the importance of witness immunity in Briscoe v. LaHue, 460 U.S. 325 (1983), which held that all witnesses, including law enforcement officials, have absolute immunity from civil liability for perjured testimony offered at trial. In Briscoe, a convicted man brought a lawsuit against the police officers that offered perjured testimony at the plaintiff’s criminal trial that resulted in his conviction. The Court held that the officers were immune from civil liability, noting that the possibility of an impending lawsuit could shade the witness’ testimony.
The Briscoe holding was largely echoed throughout state courts. In one sharply divided decision before the Supreme Court of Washington, Bruce v. Byrne-Stevens & Associates Engineers, Inc., 113 Wash. 2d 123, 776 P.2d 666 (1989), the court held that witness immunity prevented the plaintiff from suing his engineering expert, reasoning that retained experts are entitled to the same immunity as every other witness. According to the Court: “The mere fact that the expert is retained and compensated by a party does not change the fact that, as a witness, he is a participant in a judicial proceeding. It is that state on which judicial immunity rests.”
When Can an Expert be Held Liable?
While witness immunity still pervades the U.S. legal system, many courts have chipped away at its components, finding experts can be found civilly liable when they negligently performed their professional duties. This shift in policy is due, in large part, to the proliferation of the use of expert witnesses in the last thirty years. In turn, this surge of witnesses can be attributed to the increased and varied fields of expertise and scientific fields that have developed with modern technology. The Supreme Court holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) also increased the admissibility of expert witness testimony, as the decision adopted a more flexible reliability standard for admissibility then the previous long-held standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which required an expert’s testimony to be “generally accepted” within the scientific community.
These later state court decisions have mostly addressed claims of liability against “friendly” expert witnesses, or witnesses that were retained by the party, rather than the witnesses retained by the opposing side. Currently, six states allow parties to sue an expert that they retained for malpractice or breach of contract – California, Connecticut, Louisiana, Massachusetts, Missouri, and Pennsylvania.
In Mattco Forge, Inc. v. Arthur Young & Co., 60 Cal. Rptr. 2d 780 (Cal. App. 1997), the California court held that a forensic accountant who engaged in document fabrication could be held liable for professional malpractice, and established the following criteria for expert malpractice cases: “1) the professional was negligent in the handling of the prior lawsuit; 2) the professional’s negligence was a substantial factor in the plaintiff’s loss of the prior lawsuit; and 3) the proper handling of the prior lawsuit by the professional would have resulted in a collectible judgment in plaintiff’s favor.”
In Pollock v. Panjabi, 781 A.2d 518 (Conn. Super. 2000), in an underlying personal injury action against a police officer for using excessive force which rendered the plaintiff a quadriplegic, a spinal biomechanics expert was retained to prove that the officer caused plaintiff’s injuries. The Connecticut Superior Court found that the expert was liable for his negligence in incorrectly performing experiments that were deemed inadmissible at trial.
In LLMD of Michigan, Inc. v. Jackson-Cross Co., 559 Pa. 297 (Pa. 1999), the Pennsylvania court held that the plaintiff’s expert witness retained to calculate damages of a failed business deal, was liable for his professional malpractice. The witness made a mathematical error that resulted in a drastic miscalculation of lost profits and caused the plaintiff to settle for a substantially smaller sum.
Whether an adverse expert witness can be sued is still up for debate, as only two states – West Virginia and New Jersey – have touched upon the issue. In Davis v. Wallace, 565 S.E.2d 386 (W. Va. 2002), a convicted woman brought a lawsuit against the State’s experts for negligently performing their duties and failing to meet the requisite standard of care. The experts’ motion to dismiss and motion for sanctions was granted, but the Supreme Court reversed and remanded, holding that the trial court abused its discretion in sanctioning the woman and cited case law that established expert witnesses are not entitled to absolute immunity. In contrast, in Reilly, Supple & Wishchusen, LLP v. Malcolm Blum v. Michael Ambrosio (NJ App. Div. March 9, 2011), an unpublished New Jersey appellate opinion, the Court held that an attorney did not have the right to sue the opposing side’s expert and that the witness did not owe any duty to the attorney.
The potential liability of court-appointed or neutral experts is likewise unexplored; only New Jersey and Vermont have ruled that such experts can be found liable for negligence. See Levine v. Wiss & Co., 478 A.2d 397 (N.J. 1984); Politi v. Tyler, 751 A.2d 788 (Vt. 2000).
Although expert witness immunity is still prevalent, there are other means of seeking remedies or obtaining justice when a witness is negligent. Some courts have held that the attorneys who hire the negligent expert witness can be sued. See Forensis Group, Inc. v. Frantz, Townsend & Foldenauer, 29 Cal. Rptr. 3d 622 (Cal. App. 2005). Lawyers can be held liable for malpractice if they perform below the requisite standard of care. Thus, if the hiring of an expert is deemed to be a decision that a reasonably prudent attorney would not make, the attorney may be liable for professional malpractice.
Another way to hold negligent parties accountable is through professional associations and licensing boards. In 2001, the 7th Circuit Court of Appeals held that a professional society could discipline one of its members for improper testimony. It upheld a suspension ordered by the American Association of Neurological Surgeons of its member after the neurosurgeon provided inaccurate testimony as an expert witness. See Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001). Likewise, some state licensing boards may sanction experts for failing to meet the professional and ethical standards during testimony. See Deatherage v. State of Washington Examining Board of Psychology, 948 P.2d. 828 (Washington Sup. Ct. 1997).
How to Protect Your Case From Expert Malpractice
In order to avoid the catastrophe that an unqualified expert witness can cause to one’s case, it is important to properly vet all potential experts prior to retaining their services. A thorough search of the expert’s history – including, but not limited to, education, training, employment, courtroom experience, and previous testimony – can help prevent any surprises as to the expert’s qualifications and capabilities. An expert witness services firm can help ensure you choose the right expert, as their databases are comprised of a variety of professionals that have already been exhaustively vetted and background checked.
Overall, despite the jurisdictional split on witness immunity, experts are still required to practice a reasonable degree of care when working on a case. Therefore, before retaining any experts, it is important to keep in mind the requisite level of skill that they are legally required to bring to the matter.