For instance, an expert could not face lawsuits for negligence or defamation for their expert work. Many professional boards and licensing organizations also granted leeway for members who served as expert witnesses. Today, however, these protections for expert witness liability are eroding. Expert witnesses may now face sanctions for misbehavior. These include adverse actions taken by an expert’s professional association or licensing board and tort claims brought by private plaintiffs.
While expert witness work remains valuable and often rewarding, it also poses certain risks. Experts who understand these risks can protect themselves and offer more effective assistance to attorneys.
Evolving Standards of Witness Liability
Witness immunity has a long history. Under English common law, courts often granted witnesses immunity for their statements on the stand, lest they be afraid to speak otherwise. U.S. courts adopted this principle. Oftentimes, U.S. courts held that it is in the public’s best interest to protect witnesses from being intimidated into silence by the threat of a lawsuit.
Recently, however, U.S. courts have seen a counter-movement towards narrowing immunity for expert witnesses. As the use of expert witnesses increases, so do the risks of attorneys choosing an expert to repeat inaccurate, biased, or outdated information rather than to exercise thoughtful professional judgment.
In In re Air Crash Disaster, the Fifth Circuit Court of Appeals raised concerns about experts who supplemented teaching salaries by giving expert witness testimony. “We know…that many such able persons present studies and express opinions that they might not be willing to express in… contexts subject to peer review,” the court wrote. Expert witness liability is one way courts, parties, and professional organizations seek to hold experts to the same standard in their testimony as they must meet in their daily work.
Types of Liability
Currently, expert witnesses may face liability from a number of sources. These include:
- Disciplinary actions by professional associations
- Sanctions by state and other licensing boards
- Civil lawsuits
Not all forms of liability are imposed in all cases. Rather, the route taken is tailored to the type and scope of the alleged misbehavior from the expert witness.
Disciplinary Actions by Professional Associations
In Austin v. American Association of Neurological Surgeons, the Seventh Circuit Court of Appeals held that a professional society can discipline a member who gives improper expert witness testimony. In Austin, the plaintiff, a neurosurgeon, testified as an expert witness. Afterward, the American Association of Neurological Surgeons (AANS) suspended him. AANS argued the plaintiff’s expert witness testimony had violated the AANS’s ethical code for expert witnesses. The Seventh Circuit upheld the suspension. Similar cases in various states have held that state licensing boards can also sanction licensed professionals who fall short of professional standards while giving expert witness testimony.
Expert witnesses may also face civil lawsuits for substandard testimony. In Levine v. Wiss and Co., for example, the New Jersey Supreme Court allowed a plaintiff to sue an accountant who had served as an expert witness. The court concluded that the accountant had a duty to use reasonable care in examining the information that formed the basis for the accounting expert witness report and testimony. Additionally, the court observed that the plaintiff could use a lawsuit to challenge whether or not the accountant had done so.
An expert witness facing a lawsuit or professional sanction for prior testimony may struggle with the court recognizing them as an expert in a current case. The court may disqualify the expert from giving testimony altogether. Additionally, the court may rule part or all of the expert’s report inadmissible. To avoid these pitfalls, experts must understand the liability they face and work to manage risk.
Practical Tips to Avoid Liability and Manage Risk
Expert witnesses can take several steps to manage risk and minimize their liability. Often, these steps will help expert witnesses improve the quality of their report and testimony as well. They can even help an expert witness prepare for and weather challenges from opposing counsel.
Review Applicable Professional Standards for Both Expert Witness and Professional Efforts
Both sanctions and lawsuits against expert witnesses have alleged failings on the part of the expert. An example of this is falling short of a professional association’s ethics standards. Additionally, failing to exercise the reasonable care required of any ordinary member of the profession is another example. By reviewing these standards, expert witnesses can tailor their efforts to meet or exceed expectations.
Be Willing to Say “No”
Whether pressure comes from an attorney seeking a varnished version of the truth, opposing counsel inviting an overstep, or another source, an expert witness can minimize risk by recognizing and stating boundaries. Sticking to facts is essential—and so is clarifying where the boundary lies between fact and speculation. An expert who can back up their findings can also defend their work more easily if allegations of misconduct arise.
Review Professional Liability Coverage
Not all forms of professional malpractice insurance or errors and omissions coverage address expert witness efforts. Review your coverage and, if possible, add insurance that helps you face any future allegations of misconduct.
Most expert witnesses offer their services without ever facing allegations of misconduct. Since liability can occur, however, expert witnesses benefit from an understanding of risk management. Good risk management can result in better work and better working relationships, while also protecting a professional reputation and career.