A private investigator’s former clients (“the Clients”) filed a negligence and professional negligence complaint against the investigator (“the PI”) and his employer after he testified for the Clients in an automobile consumer product warranty case that the Clients lost. The Circuit Court dismissed the complaint based on witness immunity. The Clients appealed.

Judge Altenbernd of the Florida Court of Appeals held that although the appellate court had doubts about the ability of the Clients to allege and prove a claim against the PI, the dismissal of their complaint against the PI and his employer with prejudice based on the doctrine of witness immunity was in error.


 

The complaint in this lawsuit claims that the Clients purchased a new car in 2005. They had difficulties with the car, and in August 2007, after several trips to the dealership, the car caught fire and burned. The Clients claimed that the fire was electrical and was caused by a defect in the car. The record does not show the mileage on the car at the time of the fire or whether it was still under warranty, and there was no indication that the Clients had purchased comprehensive coverage from an insurance company to cover the fire loss.

The Clients allege that they filed suit against the car manufacturer in November 2007 under the Magnuson–Moss Warranty Act as to the defects of the two-year-old car. If the lawsuit had moved forward, the damages would have been measured by the value of the car. To prove this claim, the Clients would need to prove the nature and source of the fire.

The Clients did not claim to have retained any experts before they filed suit, but hired the private investigator expert witness and his investigation firm in late February 2008. The PI inspected the vehicle and created a comprehensive report. The record on appeal did not contain the report, but the Clients and their attorneys believed that the report was helpful to their case. The attorneys for the car manufacturer deposed the PI, but that deposition was not contained in the appeal. The Clients’ complaint alleges that the PI defended his report. The Clients went to trial believing they had a chance of winning the lawsuit based on the PI’s deposition and report.

When the PI appeared for trial in July 2010, he had “unkempt hair” and was wearing “unwashed” and “excessively worn” jeans and a polo style shirt. Although the complaint does not explain why the PI was poorly attired dressed, at oral argument it was suggested that he had had forgotten to pack the clothes he was going to wear when he testified. In contrast, the car manufacturer’s two experts appeared in “jacket and tie, with hair well groomed.” Aside for physical appearance, the Clients claimed that the PI failed to support his theory and findings under cross-examination, that he was impeached concerning his prior experience, and that he was unfamiliar with critical aspects of the “scientific method of investigation.”

The Clients lost their trial against the car manufacturer. They assumed that the jury believed the car manufacturer’s experts and not the PI because of his “fashion faux pas and his inadequate testimony.”

The Clients and their attorneys sued the PI and the investigation company in June 2011, basing their claims on two theories—professional negligence and common law negligence. The Clients sought to recover the value of the car—$22,631.82—and the $83,213.90 that they owe to the car manufacturer (apparently because they rejected a proposal for settlement under section 768.79, Florida Statutes). The Clients’ attorneys claimed that they lost roughly $124,000 in fees that they anticipated recovering against the car manufacturer if they had won the underlying lawsuit.

The PI and his employer responded to the complaint by filing a motion to dismiss, arguing that the law firm had no standing to bring the claim, and that the lawsuit was barred by absolute witness immunity under Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co. (Fla.1994). The motion argued that there was no cause of action due to this immunity; however, the court of appeals saw that immunity to actually be an affirmative defense. The trial court dismissed the Clients action with prejudice based on the Levin case and did not reach the issue of standing.

Judge Altenbernd of the court of appeals noted several obvious problems with the complaint in this case. In count one, the Clients tried to assert a claim for professional negligence. They alleged that the PI and the investigation company are licensed as investigators under § 493.6101 et seq. of the Florida Statutes. Yet that statute regulates private security, investigative, and recovery industries, including private investigators and private investigative agencies. “Private investigation” includes the investigation of “[t]he causes and origin of, or responsibility for, fires.” Notwithstanding, the statute does not appear to require a four-year college degree to obtain a license, and the Clients’ complaint did not claim that the PI held at least a four-year college degree. In general, a claim of professional malpractice in Florida can be alleged only if the defendant is required to have a minimum of a four-year college degree. As a result, the PI was qualified to testify as an expert at trial, but the court of appeals did not believe that he qualified as a professional for tort liability.

In addition, to the extent that the Clients relied on a theory that they would have won the lawsuit—that the jury would have accepted their theory of the case and not that of the experts presented by the car manufacturer if the PI had testified differently, Judge Altenbernd foresaw difficulties of proof. Judge Altenbernd explained that this was especially problematic when the Clients held that the outcome of the case hinged on a jury believing a well-dressed expert on the origins of the fire over an “unkempt” expert. In a footnote, the judge remarked, “All things being relative, Albert Einstein would likely have been a great expert witness despite his unkempt appearance.”

Judge Altenbernd acknowledged that the parties did not provide and the court did not uncover, any reported decisions in Florida similar to this case. “Given the above-referenced legal difficulties and the practical reality that lawyers need to have a good working relationship with their expert witnesses, it is not surprising that Florida has no reported cases similar to this case,” he said in his opinion.

“Although it is likely that this complaint fails to state a cause of action as alleged, we are unwilling to affirm based on the tipsy coachman doctrine.” The court reasoned that with the facts and theories alleged, there was the possibility that the Clients would’ve and could’ve settled this case prior to trial, had they understood the holes in their expert’s theory. However, in focusing on the actual theory of dismissal in this case, the judge stated that it was true that the State of Florida has provided very broad immunity from suit for “statements or actions taken during a judicial proceeding.” (Levin, 639 So.2d at 607). This immunity in Levin, the court explained, was created within the context of a lawsuit brought by an attorney who was forced to withdraw from a case because the other side claimed it was going to call him as a witness. When the attorney was not called, the attorney sued for intentional interference with his business relationship with his client. Along this line of reasoning, the Levin case was dramatically different from the context of the Clients’ case; the court of appeals was not certain that the legal propositions discussed in Levin synced to the facts of this case.

Judge Altenbernd pointed out that the limited body of law regarding actions against expert witnesses around the country was split. Some cases precluded these claims, typically relying on the “chilling effect” of such lawsuits. These courts did not want expert witnesses to feel pressured to testify candidly to opinions contrary to their actual opinions in order to avoid a lawsuit by the lawyer who hired them. Although a valid concern, Judge Altenbernd said, that was not a sound basis to prevent a claim against an expert witness who fails to prepare his or her testimony before trial. Further, it was not necessarily a basis to prevent a claim against an expert who misrepresented his or her credentials prior to trial.

The cases that permit these claims usually treat expert witnesses as other professionals. This reasoning may not necessarily extend to an expert witness who is not a professional for purposes of tort law. At this point in the suit, Judge Altenbernd held that there wasn’t an adequate record or a necessity to establish any rules relating to causes of action brought by litigants against their own expert witnesses. The Florida Court of Appeals could only decide that the Clients’ dismissal with prejudice of their initial complaint based on the doctrine of witness immunity was in error.

Case: 102 So.3d 752, 38 Fla. L. Weekly D24 (Fla.App. 2 Dist. Dec. 19, 2012).

By: Kurt Mattson, J.D., LLM

The first legal reference to the tipsy coachman doctrine is found in Lee v. Porter, 63 Ga. 345 (Ga. 1879), which refers to the notion of doing right for the wrong reason. See Herb and Kanoff, The Butler Tetralogy: The Tipsy Coachman Doctrine Revisited, 85 The Florida Bar Journal (July/August 2011) at p. 58.