Expert witnesses are invaluable for explaining to a jury any complicated medical, technical, or scientific evidence. As professionals who are necessary for complex litigation, they often charge substantial fees. But in pursuing such fees, expert witnesses may be tempted to stray from the truth in their testimony. Overzealous or careless testimony by an expert can lead to false testimony.
The severity of false testimony can vary depending on whether it was an honest mistake, a partial misrepresentation, or outright fraud. This raises the question as to when an expert witness has created liability for themselves. In turn, such liability may carry over to the lawyer who hired them.
Standards for Liability
Generally, for expert witnesses to face liability for their testimony, it must be proven that the expert’s testimony fell below the reasonable standard for their profession. Such a claim against an expert witness must show that the party would have won their case but for the expert’s deviation and that the substandard caused injuries to one side or the other.
Privileged Place in the Legal System
There is a tradition of treating an expert witness as a privileged member in our legal system. Historically, all witnesses were considered immune for their testimony provided in court. Negligent or false testimony would not result in any form of liability. The recovery of damages from an expert witness has been arguably sacrosanct as seen in our Federal court system.
In Federal cases, malpractice litigation against expert witnesses has shown that courts will generally grant immunity from civil liability to expert witness defendants. Ethically, Federal courts have a focus on treating experts as objective assessors and conveyors of information as it relates to the Daubert standard.
However, there is a deviation from the tradition of expert immunity in state cases. It is more common for a firm to sue its own expert witness due to events occurring at trial. This can be seen in the famous LLMD of Michigan v. Jackson-Cross case in which the plaintiff firm sued their own expert witness and his consulting group after discovering at trial that the expert never did their own calculations for their report. The end result was a lesser settlement award for the plaintiff.
The Michigan Supreme Court accepted the case on appeal as to whether the issue of witness immunity applies to a party’s own witnesses. Ultimately, the court found that the expert was negligent in preparing their testimony. In addition, their ruling made clear that public interest can trump witness immunity. The court was careful to limit this ruling for negligence situations.
Presently, California, Connecticut, Louisiana, Massachusetts, Missouri, and Pennsylvania, permit attorneys to sue the expert witnesses they hired for breach of contract or professional malpractice. In addition, Vermont and New Jersey have ruled that court-appointed experts can also face liability. Similarly, liability will be found for the negligent performance of their professional duties. This affirms the concept that the search for truth is not aided by holding experts blameless. Any immunity is lost when experts provide negligent or deliberately false testimony.
Consequences for Attorneys
It is a rare occurrence that attorneys face liability for their expert witnesses. Such matters would require an attorney’s knowledge that their expert witness has given false or fraudulent testimony. To win a case through such methods would be unethical. If such a situation does occur, it would certainly place the attorney and law firm in jeopardy. A lawsuit by the opposition against the law firm and expert witness would be possible as well. The ethical consequences would be on the same level as an attorney who allows their client to give false testimony in open court.
Maintaining a Standard
It is important for all experts to understand immunity is not always absolute. Expert testimony must be based on a professional standard for their field. It is therefore imperative that attorneys choose their experts wisely. It is better to have an expert witness that explains concepts to a jury without being overzealous. Above all, an expert with a history of testimony that showcases reliability, objectiveness, and accuracy is necessary. Such an expert ensures compliance with ethical rules and a greater chance at securing a courtroom victory.